What Statements Are Covered by the Sixth Amendment Confrontation Clause?

Davis v. Washington

Michelle McCottry called told a 911 operator that her ex-boyfriend was attacking her and identified him by name. When the police (who would be the only witnesses other than McCotttry) arrived they observed fresh injuries on her arms and face. She later failed to show in court. The question here is whether the 911 call is admissible under the Confrontation Clause of the Sixth Amendment. “In all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.”

In Hammon v. Indiana, the other consolidated case, there was a similar set of circumstances except that there was no 911 recording and upon arrival the police separated the couple and questioned them individually, during which Mrs. Hammon wrote out and signed a battery affidavit. Mr. Hammond’s council objected to a recount of Mrs. Hammon’s statements by the police officers in her absence as well as the affidavit. The trial court admitted the affidavit as an “excited utterance,” an exception to the hearsay rule. The appeals court affirmed, holding that Mrs. Hammon’s statements were not “testimonial,” which it defined as statements “given or taken in significant part for purposes of preserving it for potential future use in legal proceedings,” and therefore admissible in the absence of the witness despite the Confrontation Clause.

Only statements of a “testimonial” nature cause the declarant to be a “witness” and are treated separately from other hearsay. In Crawford the Court held that statements made to police during a Mirandized interrogation were clearly testimonial. The line the Court draws here is between statements made during interrogations “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” (nontestimonial) and statements made under “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” (testimonial).

The Court then turns to the meaning of “interrogations.” Noting that testimony may arise outside of interrogations the Court addresses whether (1) the Confrontation clause extends only to “testimonial hearsay;” and (2) whether a 911 recording counts. Crawford, held that the Confrontation Clause is targeted at witnesses, and defined witnesses as those who “give testimony,” and in turn defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” The Court notes that all the Confrontation Clause cases in American precedent involve testimony of the most formal sort, but that the English cases preceding them “did not limit the exclusionary rule to prior court testimony and formal depositions.” The Court distinguishes between the kind of statements made in Crawford and those made in Davis because in Crawford the declarant was recalling events and in Davis the declarant was conveying those events “as they were actually happening” and because the declarant in Davis, as opposed to Crawford, was facing an ongoing emergency. The two cases differ also in that the questions in Davis were clearly directed at resolving the situation rather than documenting it and the level of formality of the questioning.

However, a conversation that begins as an interrogation to determine a need for emergency assistance could “evolve into testimonial statements,” a delineation the Court marks out by saying that “trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” As an example of this standard the Court holds that the statements in Hammon were testimonial because of their increased formality (separated questioning, Miranda warning), the fact that the officers were objectively trying to ascertain, not “what is happening,” but “what happened,” and because of the “striking resemblance … to civil –law ex parte examinations.” These statements are clearly testimonial because they aim to supplant actual testimony in court.

In response to some concerns about domestic violence cases in general the Court reminds of an important rule. “The rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds” (one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation).

Justice Thomas argues that two years ago the Court did away with the “general reliability” test under the Confrontation Claus because it was “inherently, and therefore permanently unpredictable” and that the majority’s test here suffers the same fault. The test, additionally, fails to follow the contours of the interests protected by the Confrontation Clause. Justice Thomas does not want to follow the narrowest view of what “witnesses against him” means because that view does not conform to the Clauses history or development, but does not want to follow the broadest view either.

Justice Thomas would look to the resemblance between today’s practices and those of civil ex parte examinations to determine those practices relation to what is prohibited by the Clause. This approach would find an implied exception to the rule for testimony that derived from examination of the suspect and accusers and was transcribed and physically transmitted to a judge within two days. Justice Thomas’ rule would allow some nontestimonial statements to be considered so if their admission in court would resemble the ex parte statement abuses. Finally, Justice Thomas argues that the majority’s rule’s reliance on objectivity would prevent police and prosecutors from deciding when they want to collect testimonial statements, and would leave that question to a judge post hoc.