Investigating Past Crime vs. Dealing With an Ongoing Emergency:

The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford v. Washington (2004), the Supreme Court held that this "bars 'admission of testimonial statements of a witness who did not appear at trial'" (with some exceptions): If I see you committing a crime, I'm supposed to testify in person about it, and be subject to cross-examination by you. The police can't just take my statement and then use it against you at trial when I'm not there to be cross-examined.

But what makes a statement "testimonial," and thus presumptively inadmissible, as opposed to "nontestimonial," and thus presumptively admissible? If someone overhears me saying, while you're attacking me, "Stop hitting me!," is that witness barred from reporting my statement at trial (assuming I'm not around to testify)? Crawford suggested that the answer is no, because the statement isn't really "testimonial," unlike (say) a formal statement given during a police interrogation at a courthouse, which is "testimonial." But Crawford didn't say where the line could be drawn.

In today's Davis v. Washington, the Supreme Court set forth this rule (emphasis added):

Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial 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.

In one of the cases that the Court decided with the Davis opinion, the Court found that a 911 call reporting on an in-progress attack by an ex-(?) boyfriend on an ex-girlfriend was basically nontestimonial. In the other, it found that statements gathered at the scene of a then-very-recent attack by a husband on his wife were testimonial:

There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in [the other case]) “what is happening,” but rather “what happened. ” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime— ....

As I read this, I wondered whether this distinction was quite sound. The trouble in domestic violence cases is that the victims often -- out of fear, misplaced loyalty, concern (whether sound or not) for their and their children's economic well-being, and a variety of other factors -- refuse to talk about the crime, or talk once and then stop talking. That's why the victims are often unavailable at trial; but it also suggests that when "Amy told [the officers] that things were fine, and there was no immediate threat," the officers might have reasonably had some doubts, especially when they saw some evidence of an altercation.

If you were an officer who was trying to figure out whether it was safe to leave a wife (and her daughter) at home with a husband who might have attacked them, would you simply accept the wife's word that all is fine, and that there's no immediate threat? Or, in trying to figure out what to do to immediately protect the possible victims (not just to or even not primarily to investigate the past crime with an eye towards prosecution), would you try to figure out if indeed things were fine and there was no immediate threat? There might be no "emergency" in the sense of an attack actually in progress that moment -- the police were there, after all, and many an attacker lies low when the police are present. But there might be an emergency in the sense of an attack that was merely suspended while the police were present, and that could resume shortly after they left.

In fact, Justice Thomas's partial dissenting opinion made this very point:

The Court draws a line between the two cases based on its explanation that [the husband-wife case] involves "“no emergency in progress,”" but instead, mere questioning as “part of an investigation into possibly criminal past conduct,” and its explanation that [the 911 case] involves questioning for the “primary purpose” of "“enabl[ing] police assistance to meet an ongoing emergency." But the fact that the officer in [the former case] was investigating [the husband's] past conduct does not foreclose the possibility that the primary purpose of his inquiry was to assess whether [the husband] constituted a continuing danger to his wife, requiring further police presence or action. It is hardly remarkable that [the husband] did not act abusively towards his wife in the presence of the officers, and his good judgment to refrain from criminal behavior in the presence of police sheds little, if any, light on whether his violence would have resumed had the police left without further questioning, transforming what the Court dismisses as "“past conduct”" back into an "“ongoing emergency." ...

Now I'm not sure whether the majority's opinion or Justice Thomas's dissenting opinion (which proposes a test that has its own flaws) is right. It may well be that on balance the majority's distinction, however mushy, is the best that can be created here. Still, it struck me that the majority's application of the distinction was less persuasive than the majority seemed to think. SCOTUSblog is posting what should be a very interesting discussion of the case.

Anderson (mail) (www):
But there might be an emergency in the sense of an attack that was merely suspended while the police were present, and that could resume shortly after they left.

The impossible-to-detect "emergency" of a situation that *might* turn into an attack, or might not, is not particlarly persuasive. If there's a problem with the majority's opinion, it will have to be found elsewhere.

(Don't miss Scalia's fn. 5, where he tweaks Thomas: "But we no longer have examining Marian magistrates; and we do have, as our 18th-century forebears did not, examining police officers .... Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction.")
6.19.2006 3:19pm
Eugene Volokh (www):
We're not talking about a situation that just "might" turn into an attack in the same sense that anything might. The police had gotten a call about a domestic disturbance. They saw a broken appliance with a fire burning in it. No-one seemed to be putting out the fire, as would likely have been the case if the disturbance had simply been an accident. The wife was on the porch, seemingly "somewhat frightened." There's pretty substantial evidence there pointing towards an attack that was merely suspended while the police were present, and could (with some considerable likelihood) resume shortly after they left.

Of course this isn't proof positive of an emergency; but it is, I think, enough to undermine the plausibility of the majority's assertion that "[o]bjectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime." With evidence like that before a reasonable police officer, it seems to me that an officer might well be acting with the primary purpose of making sure that they hadn't just interrupted a beating that would resume shortly after they left.
6.19.2006 3:38pm
I don't see how this stops the police from doing anything about something while they are on-scene. It simply prohibits a later prosecution based on what one party told the police. If said party refuses to testify at the time of the trial, then the charges will have to be dropped at that time (if they cannot be sustained through other means). The police can still interview the parties involved and make arrests. They can still write reports and tell the prosecutors what they learned. Once one party makes a statement that another has committed a crime against them, that should be enough for the police (assuming they believe it). If it turns out later that the person was mistaken or no longer wishes to testify, then the charges will be dropped, though the complaintant may face charges like filing a false police report, etc.

If the police thought that the husband in this case was an ongoing threat to his wife, they were certainly entitled to arrest him (based on her statements) even if there was the possibility that she would be unavailable as a witness at trial.
6.19.2006 4:59pm
Porkchop (mail):
EV: It seems to me that a 911 call during an attack in progress is more or less within the "excited utterance" exception to the hearsay rule. Fed. R. Evid. 803(2). The judge can make an initial determination based on listening to the tape of the call as to whether the declarant was "under the stress of excitement caused by the event or condition." The defense can certainly argue that the statements were fabricated as part of a ruse to get the police to the house so that they could hear false allegations of abuse, and the jury can consider that in its deliberations.

Do you really think this is a serious confrontation clause issue? I don't see what distinguishes this from any other excited utterance situation, unless, of course, you are arguing that 803(2) is unconstitutional as applied with respect to statements by alleged victims. If there is a confrontation clause challenge, then exceptions 1 (present sense impression), 3 (then-existing mental, emotional, or physical condition), 4 (statements for purposes of medical diagnosis), and (maybe) 5 (recorded recollection) are equally vulnerable if the victim-declarant is not available to testify.
6.19.2006 5:55pm
Paul McKaskle (mail):
There is another aspect of the Davis opinion which may well protect domestic violence victims. In Davis (in the part dealing with the companion case of Hammon) the Court seems to go out of its way to discuss with seeming approval whether "forfeiture" would make testimony admissible even if were otherwise barred by the principles of Crawford (the leading case on confrontation). The Court didn't make any definitive ruling on the issue (indeed, the issue apparently wasn't relied on in the lower courts though an amicus argued its applicability in the Supreme Court). Since Hammon's case was simply remanded, not reversed forthwith, perhaps it was an invitation to the Indiana courts to explore whether Hammon had, in effect, made his wife unavailable and, if so, on that basis uphold his conviction (since if forfeiture were found, the hearsay statements would be admissible).

Further, the Court seemed to suggest that the issue of whether or not a defendant had procured the witnesses's absence would be determined as a "preliminary fact" which means that it would be determined on the basis of a preponderance of evidence and that hearsay could be used. (See, e.g., Bourjaily.) Thus hearsay reports of threats made by the defendant (either to the police or to others in the past) could be used and since the determination being made is merely of a "preliminary fact" (i.e., was there a forfeiture) not an issue of guilt so at this stage the defendant is not protected by the Confrontation Clause. (Again, see Bourjaily.)

As to Porkchop's concern, I think pretty clearly under Davis an excited utterance would likely come in under most circumstances. As to hearsay potentially admissible pursuant to FRE 803 (1), (3), (4) and (5) the issue would be if those statements were testimonial or not. Made to a cop, they would be likely inadmissible; but under other circumstances the statements may well not be testimonial, and if so, there is no Confrontation Clause violation if they are used.
6.19.2006 6:40pm
Porkchop (mail):
It doesn't matter whether the hearer is a police officer or not. The questions are (1) whether the statements fall within an exception to the hearsay rule (state or federal), which depends on the situation of the declarant, not the witness reporting the declarant's statement, and (2) whether admitting the statement under an exception violates the Confrontation Clause. My point was that it seems like the 911 call issue seems like a fairly pedestrian application of the excited utterance rule, which has been around in some form for centuries. It seems an unlikely one for a Confrontation Clause challenge. The other case likewise seems to present a common and unremarkable issue. How did these end up at SCOTUS?
6.19.2006 11:07pm
Jacob (mail):
At the oral arguments, the Court (well, the non-mute members) were none-too-persuaded by the idea of a mere "suspended" attack. At one point Justice Scalia brought up how ridiculous it is to think that the police could be sitting with the victim at her kitchen table, talking to her over coffee, and yet still consider the emergency event "ongoing." He then mentioned that he might have pulled the coffee part out of his ass (pages 28-29 of the transcript).

Prof. Volokh paints a very scary picture of the situation when the police arrived (Hell, the house is practically on fire! No time to waste!), but surely by the time the victim's sitting at her kitchen table talking to two police officers things are a bit more calm and safe. The alleged could conceivably come back once the police leave, but if that's the standard then basically everything until the suspect is picked up is an "emergency situation."

And the opinion seemed to state that in Davis, the more confirmed flight of the alleged might be enough to render that part of the 911 call testimonial. Surely, once the police have brought the victim in from the porch and sat her down, and spoken to her for however long, and then produced an affidavit to the same effect, and had her sign it, and *maybe* had some coffee, we can assume the suspect is not in the near vicinity? And if he is, why the hell are the police wasting their time on an inadmissible affidavit?
6.19.2006 11:29pm
logicnazi (mail) (www):
I agree that this distinction is perfectly sound. Acting to prevent a potential future emergency in a calm controlled fashion is simply not an emergency itself. To decide otherwise would be to make any police work an emergency as it is designed to prevent future criminal behavior of some kind.

If you want to carve out any sort of emergency non-testimonial exception to the hearsay rule this seems the way you have to go. Although perhaps someone can come up with a good alternative rule.
6.20.2006 4:19pm
jalrin (mail):
The point of Crawford was to get rid of the practice of saying that just because a hearsay exception has been around for a while that makes it okay under the 6th Amendment which underlay the old Roberts v. Ohio system.
6.20.2006 7:15pm