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Supreme Court Decision Update - Davis v. Washington

supreme2.jpgIn today’s Davis v. Washington (PDF of the opinion), the Supremes address two cases, the titular Davis and Hammon v. Indiania, in looking at what qualifies as “testimony” for the purposes of the Sixth Amendment Confrontation Clause. They provide some clarification of when so-called hearsay evidence may properly be used in criminal proceedings, allowing a 911 call but disallowing a affidavit.

QuizLaw Analysis: Justice Scalia provides a fairly clear and well-reasoned test for determining when hearsay evidence qualifies as “testimony” (although Justice Thomas would beg to differ with me). The issue turns on the nature of how the evidence was gathered, and the important distinction is whether it was gathered in furtherance of learning about a current emergency and trying to prevent further risk of harm (which is not “testimonial” in nature) or whether it was gathered in an investigatory manner to learn about a past occurrence (which is “testimonial” in nature). Scalia even appears to throw a bone to domestic violence victim advocates, keeping a door open for the potential use of even “testimonial” evidence.

The factual background of both of these cases relates to domestic violence and the implications of the Sixth Amendment’s Confrontation Clause, which says that criminal defendants have the right “to be confronted with the witnesses against him.” In Davis, a man was convicted of violating a court order to stay away from his former girlfriend. During the trial, his former girlfriend did not testify, but the 911 recording of a call she made following an alleged assault was played for the jury. Davis appealed his conviction, and the Washington Court of Appeals and Supreme Court both upheld it, ruling that his former girlfriend’s identification of his identity as her assailant was not “testimonial” evidence. In Hammon, a man was on trial for domestic battery. While the victim did not testify, her battery affidavit was submitted and the cop who responded to the original domestic disturbance call and questioned her offered his own testimony. The man was convicted and appealed, arguing that his Sixth Amendment rights were violated as he did not have an opportunity to cross-examine the woman. The Indiana Court of Appeals and Supreme Court upheld the conviction with regard to this issue – while the courts found that the battery affidavit was testimonial and was therefore wrongfully admitted, they concluded that its admission was harmless in this case.

So with these two fact patterns in hand, the majority opinion, written by Justice Scalia and joined by everyone but Justice Thomas (who concurred in part and dissented in part), looks at the application of the Sixth Amendment, which, among other things, generally prohibits testimonial statements from being used in a criminal case where the witness did not actually appear (unless he or she was unavailable) and where the defendant did not have some opportunity to conduct a cross-examination. In particular, these two cases require the Supremes to figure out when witness statements resulting from interrogations qualify as “testimony.” Scalia says one should look at the facts behind how the statements were gathered. If they were gathered in circumstances which objectively suggest that the main purpose of the interrogation was to learn about an ongoing emergency and try to prevent further incident, then the resulting information is not “testimonial” in nature. Where, however, it objectively appears that the information was gathered after-the-fact, to learn about what already happened, the information is “testimonial.”

Turning to the facts of Davis and Hammon. Scalia shows how each of these objective conclusions can be reached. In Davis, there was no actual interrogation in a police station or even at the victim’s house. Instead, it took place during a 911 call, which is primarily intended to learn about an ongoing matter which requires police intervention. The woman was facing a live and current emergency, providing “frantic” answers to the operator’s questions. To Scalia, this is clearly the type of evidence which is not “testimonial” in nature and, therefore, the Washington courts were correct in upholding the 911 tape’s use at the assault trial, and the decision was affirmed.

Hammon, however, is a different matter. When the cops arrived at the house, the woman told them that everything was okay. Thus, there was no apparent ongoing situation (particularly because the cops separated the man and woman, questioning them separately), and the cops were asking questions to learn about what had already happened. This is more akin to an in-station interrogation and entirely unlike the situation in Davis. Thus, the Indiana courts were wrong to allow the battery affidavit to be used as evidence, even though they also concluded it was “testimonial,” and the ruling is reversed. However, the Supremes remanded the case so that the Indiana court could look at whether the evidence might have been allowed under the so-called “rule of forfeiture by wrongdoing” (which allows testimony to be used, which might otherwise violate the Sixth Amendment’s Confrontation Clause, if the witness was made absent by some wrongdoing). This is, presumably, at least in part to address concerns about the difficulties in obtaining evidence in domestic violence cases – i.e., if the domestic partner causes the woman to not appear and testify by way of threats or other means, a court could allow previous statements, such as this case’s affidavit, even if they are “testimonial” in nature.

Justice Thomas, often accused of being nothing more than Scalia’s lapdog, filed a separate opinion, concurring in part and dissenting in part. Thomas thinks Scalia’s test is going to be “difficult for courts to apply” and that it characterizes evidence as being inadmissible “testimony” even when such evidence looks nothing like the type of evidence which was previously the focus of the Confrontation Clause (i.e., Thomas is accusing Scalia of straying from history, not an accusation often hurled Scalia’s way). He would not apply the clause to informal police questioning, thinking that history limits the clause’s application to more formal evidence such as depositions and confessions. So Thomas ends up concurring with the majority’s Davis judgment, but dissenting with its Hammon judgment, since, under his standard, he would allow the evidence in both cases – neither situation involved formalized statements/testimony, there were no Miranda rights, the witnesses were not in police custody and there is no evidence to suggest that the prosecution in either case tried to use the evidence in an attempt to deprive the defendants of their confrontation right.

| Comments (1)


Is there a confrontation right for teenagers; teenage alleged victim, teenage alleaged 4th degre assault?