Int'l Ore & Fertilizer Corp. v. SGS Control Servs.

38 F.3d 1279 (2d Cir. 1994)



Statements are nontestimonial for purposes of the Confrontation Clause when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 


Two cases involved issues as to what might be considered "testimonial statements" for such purposes. The first case was also from the state of Washington and concerned a state criminal defendant's trial on a charge of felony violation of a domestic no-contact order. Over the defendant's objection, there was admitted into evidence a tape recording of some pretrial statements made by a woman (who did not appear at trial) to a "911" emergency operator during a 911 call, including a portion in which the woman identified the defendant (her former boyfriend) as her assailant. A jury convicted the defendant. The Washington Court of Appeals affirmed (116 Wn. App. 81, 64 P. 3d 661). The Supreme Court of Washington, in affirming, concluded that the portion of the 911 conversation with the identifying statements was not testimonial for confrontation-clause purposes (154 Wn. 2d 291, 111 P. 3d 844).

The second case was from Indiana and involved a state criminal defendant's bench trial on charges of domestic battery and violating his probation. Over defense counsel's objection, there were admitted into evidence a police officer's testimony, and an affidavit by the defendant's wife, concerning some pretrial statements by the wife (who did not appear at trial) to the officer at the asserted crime scene, the couple's home, after the police had responded to a reported domestic disturbance, where--after the wife had answered the officer's questions--he had had her execute the affidavit. The trial judge found the defendant guilty on both charges. The Indiana Court of Appeals affirmed in relevant part (809 N.E.2d 945). The Supreme Court of Indiana, in affirming, expressed the view that for confrontation-clause purposes, (1) the wife's oral statements were not testimonial; and (2) although the affidavit was testimonial and thus had been wrongly admitted, the admission was harmless beyond a reasonable doubt (829 N.E.2d 444).


May statements made to police during an investigation, not made with the intent to preserve evidence, be admitted in court without allowing cross-examine of the person who made the statements?




The statement identifying defendant during the 911 call was not "testimonial." A 911 call was not designed to establish or prove past facts, but to describe circumstances requiring police assistance. The caller spoke about events as they were actually occurring while facing an ongoing emergency, rather than describing past events. The elicited statements were necessary to resolve the emergency rather than to investigate events. In the other case, the statements of the alleged victim were made in response to an officer's questions in a room away from defendant when there was no immediate threat to her person. The purpose of the interrogation was investigatory. The statements recounted past events; they did precisely what a witness did on direct examination and were inherently "testimonial." The Court declined to relax the requirements in domestic violence cases but pointed out that the right to confrontation could be forfeited by wrongdoing.

Click here to view the full text case and earn your Daily Research Points.