United States v. Davis

577 F.3d 660 (6th Cir. 2009)



It is true that where testimonial evidence is at issue the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. The admission of a testimonial statement, however, does not necessarily trigger a violation of the Confrontation Clause. Instead, to constitute a Confrontation Clause violation, the statement must be used as hearsay - - in other words, it must be offered for the truth of the matter asserted.

In some circumstances, out of court statements offered for the limited purpose of explaining why a government investigation was undertaken have been determined not to be hearsay. 


For two succeeding days, two different women saw Thomas Davis, the defendant, riding in a vehicle and holding a gun. They had both informed police officers regarding this, the first woman through a 911 phone call and the second woman through a personal statement to a police officer. Eventually, the defendant was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 921(a). The defendant objected to the admissions of the two women’s testimonies regarding him and asserted that the statements constitute hearsay and are thus, inadmissible except under certain exceptions. The district court overruled the objections, finding that the first statement was not being offered to prove the truth of the matter asserted but rather to explain the police officers' subsequent actions, and concluding that the 911 call fell within the hearsay exceptions of excited utterance and present sense impression.


Did the district court err in its decision to admit the statements made by two women through a 911 call and through a statement to a police officer, as evidences against the defendant?




The Court affirmed the defendant’s conviction and held that a passerby's statement to a police officer about seeing defendant in a vehicle with a gun and a description of the car was not offered to prove the truth of its content; rather, it explained the basis for the investigation and the defendant's action and culpable state of mind. Because it was not offered for the truth asserted, the statement did not constitute hearsay. Its admission did not violate the Confrontation Clause because to constitute a Confrontation Clause violation, a statement had to be used as hearsay. Moreover, it was held that a 911 call that also identified the defendant in a car with a gun was properly admitted as an excited utterance, as well as a present sense impression, under Fed. R. Evid. 803

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