Davis v. Washington - Oral Argument

Argument of Jeffrey L. Fisher

Chief Justice Roberts: We'll hear argument first today in Davis v. Washington.

Mr. Fisher.

Mr. Fisher: Mr. Chief Justice, and may it please the Court--

Michelle McCottry's statements here were testimonial for the simple reason that she knowingly told a governmental agent associated with law enforcement that someone had committed a crime.

Prosecutions based on such ex parte statements in place of live testimony strike at the very heart of the evil the Confrontation Clause is designed to prevent, trials on the basis of out of court accusations.

Indeed, the trial here really can't be described as anything other than inquisitorial in nature.

The sole proof that Mr. Davis was at Ms. McCottry's house and assaulted her that day was the 4-minute, tape recorded 911 police incident interview that the State played at Mr. Davis' trial and that it itself described as Ms. McCottry's testimony on the day this happened.

Justice Ginsburg: Counsel, when you say--

Justice Kennedy: How does the fact that it's sole proof mean that it's testimonial?

Mr. Fisher: It--

Justice Kennedy: I... it... it adds to the general appeal of your case I... I suppose, but what does that have to do with whether or not it's testimonial?

Mr. Fisher: --It doesn't... it doesn't answer one way or another whether it's testimonial.

What it does and what I'm trying to do for this Court is, first, draw back the lens for a moment and look at the kind of trial that we end up with when statements of the... like fresh accusations in this case, are able to be used in place of live testimony.

Justice Ginsburg: --But you did use the word inquisitorial, and there's one large difference, it seems.

This is not a magistrate judge or a police officer coming to a person for an interview.

This is initiated by the caller, by the victim, and it's initially a cry for help.

Mr. Fisher: Let... let me address that question in two parts.

The first part you've mentioned, Justice Ginsburg, is whether it matters that the... that the operator is not a police officer, and we submit no.

Justice Ginsburg: No, I didn't say that.

Mr. Fisher: I'm sorry.

Justice Ginsburg: I said that the call was initiated by the victim.

It wasn't a... a police officer coming to interview her.

Mr. Fisher: I see.

Well, we don't believe, under the proper conception of the Confrontation Clause, it matters who the accusatory statement is initiated by.

Certainly we believe the Confrontation Clause should apply if Ms. McCottry had simply walked out of her house and walked down the street to the police station and voluntarily walked into the sheriff's office and said, I want to report what Mr. Davis just did.

What we... what we suggest here today is there's no difference if she simply calls on the telephone to a 911 operator, which the State itself in its brief calls a conduit to the police, and so when the... when the police and when the State have set up a system for people to report calls more expeditiously... I'm sorry... report crimes more expeditiously, we don't think the answer is any different.

Justice Ginsburg: You're splitting up two things that I think go together.

That is, this is not just a call.

This is a cry for help.

Mr. Fisher: Well, there... in... in a sense, of course, Ms. McCottry is seeking help at the same time she's reporting a crime, but the... the mere fact that the two are intertwined does not take us outside the Confrontation Clause.

Of course, in the Indiana case that you're going to hear, you're going to hear the same thing, that the person is asking for help in the same way.

So when somebody makes a call, which we might call a mixed motive or a dual purpose call, the question that we think this Court should ask is whether... whether that's the kind of a statement, first of all, that historically would have been viewed as implicating the Confrontation Clause.

And if you look at the hue... the old hue and cry practice that we've referred to in our briefs, Sir Matthew Hale in his treatise explains that when somebody went and got the local constable, what they were doing is they were seeking help, first and foremost, to apprehend a felon, and more than that, they were also reporting the crime in the first instance.

Justice Alito: Is it your argument that any statement made to law enforcement is testimonial?

Mr. Fisher: Well, you certainly don't have to go that far in this case, Your Honor, but... but we believe--

Justice Alito: I thought that's what you said in your argument when you started off.

Mr. Fisher: --Certainly any statement describing criminal activity to a law enforcement officer would be testimonial.

Justice Breyer: Well, you started out by saying that the purpose of the Confrontation Clause was to keep out the accusations made out of court, but I would have thought that was the purpose of the hearsay rule.

And if that's the purpose of the hearsay rule, how does the Confrontation Clause differ?

Mr. Fisher: The purpose of the hearsay rule, Justice Breyer, is to police the reliability of out of court statements.

What this Court said in Crawford is the Confrontation Clause is something much different.

It regulates the manner of taking testimony in criminal trials.

Justice Breyer: Ah, so it's not the purpose of the Confrontation Clause to keep out out of court accusations.

Only some, and which, and what's the rule?

Mr. Fisher: Well, we believe the rule is, is that any accusatory statement to a law enforcement officer or to an agent of the law... of law enforcement--

Justice Breyer: I know you do believe that, but I want to know why in terms of the purposes of not the hearsay--

Mr. Fisher: --Well, the--

Justice Breyer: --rather the confrontation.

Mr. Fisher: --the history of the confrontation right, going back even prior to the framer, was to bring the accuser and the accused face to face so that the accuser made his or her accusation in the presence of the accused and subject to cross examination.

And the very heart of the Confrontation Clause, which this Court has said itself over and over again is to require the accuser to... to deliver the accusation in court, and so accusatory statements, those that say he did it, this is what happened, this is what I saw, are different than ordinary hearsay.

And... and I... to take an example from... that we talked about in the Crawford argument, Justice Breyer, when somebody says pass the... pass the pewter urn from the mantle, that's where Bob keeps the drugs, that's the kind of a statement that is very different than pointing the finger at somebody to a law enforcement agent.

Justice Scalia: Suppose I point the finger in an affidavit, and I just send the affidavit, you know.

I... I don't want to get involved.

I'm in a foreign country.

I sign my name.

I even do it under oath, and I send it right to the judge that's trying the case, not to a law enforcement officer, to the judge.

You don't think the Confrontation Clause would cover that?

Mr. Fisher: Absolutely, Justice Scalia, I--

Justice Scalia: So your... your thesis that it applies to just accusatory statements to a law enforcement officer has to be expanded a little.

Mr. Fisher: --It does, and what I'm giving you is a... a rule that I think is the kernel, the heart of the confrontation right.

You don't have to say much more than that if it's--

Chief Justice Roberts: Well, what about... what if you... what if somebody runs out of the... the house?

There are two people standing in the yard, a law enforcement officer and the next door neighbor.

She yells at the next door neighbor, he's trying to kill me, and then he comes out.

Is that covered by your rule?

It's not to a law enforcement officer.

It's to the next door neighbor, but the law enforcement officer overhears it.

Mr. Fisher: --I think that statements law enforcement officer merely overhear may not be testimonial, and one of the reasons for that is this Court's Bourjaily decision, which it cited with approval in Crawford, is if somebody make... if somebody makes statements that tend out... that turn out to be incriminating in a criminal case, the mere fact that they're overheard by law enforcement officers or even an undercover officer eliciting the statement is in a different scenario, Mr. Chief Justice, than somebody making a statement to law enforcement or even... and I want to make sure I understand your hypothetical.

If the person realized that a police officer was standing there and hearing what she was telling her neighbor, we may then have a testimonial situation.

But in this case what we have is not simply a blurting out or a cry for help.

In fact, Ms. McCottry never asked for help.

She said she didn't need an aid car.

What we have are a series of 26 questions that the 911 operator asked Ms. McCottry that established every element of the crime the court... I'm sorry... that the State ultimately proved.

Justice Scalia: What was she calling 911 for if she didn't want help?

Mr. Fisher: Well--

Justice Scalia: I mean, she... she wanted something from 911.

What did she... what did she want?

Did she want the police to come over and arrest her husband?

Was that... or--

Mr. Fisher: --I think that's a fair inference, Justice Scalia.

Of course, we don't know because she was never... she's never herself submitted to cross examination.

But there are mandatory arrest laws in the State of Washington.

She had a no contact order against Mr. Davis, both of which a reasonable person would understand that a call for 911 would be tantamount to a call for arrest.

Justice Ginsburg: You said... you said we don't know, but you... that's slightly in conflict with what you said earlier.

They asked 26 questions.

How long was this telephone conversation between the 911 operator and the victim?

Mr. Fisher: It's about 4 minutes, Justice Ginsburg.

And it's not... what we submit is... of course, we've given you in the joint appendix the structured protocol that the 911 operator was following in this case, and we submit that it's not mere happenstance that the 911 call was able to establish every element of the crime, right down to Mr. Davis' birth date that the prosecutor referred to in her closing argument that the 911 operator elicited from Ms. McCottry.

And, indeed, the only question--

Chief Justice Roberts: Well, I thought that was... I thought that was to determine if there were outstanding orders and warrants against the individual.

Mr. Fisher: --It may be, and that may be another example, Mr. Chief Justice, of a... of a--

Chief Justice Roberts: But that's related... that's related to sending people to prevent crime as opposed to gathering evidence to be used to convict.

Mr. Fisher: --I don't want to dispute that 911 operators in this situation, just like responding officers, are gathering information for dual purposes.

They may well be trying to resolve an ongoing threat of a felon at large.

At the same time, of course, all of the information and training manuals that we've provided to you in the reply brief make it clear that from the initial contact with the alleged victim, they are gathering evidence all the while.

And in fact, the only thing you can think of... at least, I can't think of a single question that a prosecutor might have asked at a trial that the 911 operator didn't ask here.

The only questions that really immediately come to mind are ones that might have been asked in cross examination.

For example--

Justice Alito: Well, what if the only question... what if a 911 caller says nothing more than, in a very excited way, someone is attacking me, send a police officer right away to make the person stop attacking me?

Is that testimonial?

Mr. Fisher: --To the extent that the person is saying someone is attacking me, that kernel may... may well be testimonial, Justice Alito.

However, if somebody calls 911 and says, please send help to 911 Main... or 3312 Main Street, that may well not be testimonial.

And that... a mere cry for help... and this goes to Justice Ginsburg's question as well.

A simple cry for help may... may not be testimonial.

Justice Ginsburg: But a simple cry for help that doesn't say I'm being battered may not elicit an immediate response on the part of the police.

This kind of call, I need help now, and the information that comes with it is likely to be given priority attention as this very call was.

Mr. Fisher: I think that's a fair inference, but the... the priority attention, in terms of going and apprehending Mr. Davis, is exactly what triggers criminal justice system and exactly what makes the kind of a statement, the one that the... one that the Confrontation Clause should care about.

Justice Souter: Do you have any--

Chief Justice Roberts: Well, they're not sending someone... they're not sending someone to apprehend Mr. Davis.

They're sending someone to prevent him from attacking his wife.

Mr. Fisher: I'm not sure it's easy to separate one from the other, Mr. Chief Justice.

The way that they are doing that is by arresting him.

They have a mandatory arrest law in Washington that says that the way that the police must respond to a call like this is to arrest--

Justice Stevens: May I ask this question?

I... I guess in an awful lot of these cases there's a mixed motive, protection and the enforcement.

Is it your view that whenever there's a mixed motive, it becomes inadmissible?

Mr. Fisher: --No, Justice Stevens.

It's our view that you really ought not be looking or focusing on the police officer motive or on the governmental agent's motive for the very reason that you start to get into these knotty questions of what exactly were they trying to accomplish.

And we believe the better... a better default than... if you can't simply answer it by looking at history and precedent, is to look more towards the declarant's reasonable expectation.

And that's what this Court does in the Fifth Amendment when it--

Justice Souter: --Well, in doing that, do you distinguish, for example, between the... the expectation that lies behind a merely excited utterance, on the one hand, and the expectation or lack of expectation that would qualify... that would be the case in a... in a true res gestae statement in the very strict sense?

So that, you know, if... if the attack had occurred 30 minutes beforehand and... and the victim is saying on the telephone to the police, Adrian is trying to kill me, that would be... that... that wouldn't... would not be admissible, I take it, on... on your view under the Confrontation Clause.

And yet, if in the course of the 911 call, Adrian was battering the... the... you know, the victim over the head with something and she blurted out the same statement, he's trying to kill me, would the... would the latter be admissible in your case--

Mr. Fisher: --The latter--

Justice Souter: --under your theory?

Mr. Fisher: --I'm sorry.

Justice Souter: I'm sorry.

I misspoke.

On your theory.

Mr. Fisher: The latter is a very close case, Justice Souter.

I think you're right insofar as it... it can be important to distinguish between a modern day excited utterance and what would have been considered a res gestae type statement at common law.

Certainly if you take away the 911 call from your hypothetical and she says, please don't hurt me, Adrian, that may well be the kind of a statement that would be inside the res gestae.

Once somebody picks up the phone to call 911, that, by my reading of the historical cases, turns it into a report or a narrative.

Justice Souter: So that the answer to my question is there would be no distinction between the merely excited utterance 30 seconds later and the utterance in the course of in... in my hypo.

Mr. Fisher: We believe that as long as it is making a report to a third party, there ought not be a distinction.

Now, of course, you don't have to wrestle with that in this case because--

Justice Scalia: --You say according to your reading of the cases, but you really don't have a case like this.

You... you have a case where, after the fact, the... the victim went to a constable or to some other official to report the event, and perhaps to seek help against the person who... but you don't have anything where really, in the course... in the course of the attack or... or while the person is still at least under threat, a... a constable is... is called, do you?

Mr. Fisher: --Well, Justice Scalia, of course, we didn't have telephone technology, so--

Justice Scalia: You could have... you could have somebody walking by... a policeman walking by outside.

Mr. Fisher: --Yes.

Justice Scalia: And the victim shouting, you know, please, somebody help me, Harry is beating me.

You don't have a case like that.

So... so I don't know why we should flop one side rather than the other on this... on this case that... that doesn't seem covered by... by the old jurisprudence.

Why should we go your way on it and say that it... it falls within the prohibition rather than say it falls outside the prohibition?

Mr. Fisher: Well, for two reasons, Justice Scalia.

One is we do have the hue and cry scenario that we've talked about.

Justice Scalia: Yes, but that's not this case.

Mr. Fisher: And we think the fair--

Justice Scalia: That--

Mr. Fisher: --It's not exactly on all fours with this case, but we think the fair inference, when you read the treatises and the reasons why those kinds of statements were kept out, is that if they simply... if the police or their agents were able to get the statement just a little bit sooner, the answer would have been the same.

And we do have cases, Justice Scalia, where people made fresh accusations or cry outs to private parties to... to another... to a witness who wasn't even associated with law enforcement, and we have a whole section of our brief pointing out that for decades after the founding, even those kinds of statements were kept out of evidence in criminal trials for the reason--

Justice Scalia: --Because of the... because of the Confrontation Clause you think?

Mr. Fisher: --Well, I... I think it's a fair inference, Justice Scalia, from reading the historical precedent and the treatises that describe it.

They... they describe these as, in... in a sense, second class testimony.

They say the problem with statements like this, if they're made even seconds after the event in place, is that they're... at that point they're nothing more than a narrative and require us to give credit to a statement... and this is the words the treatise writers used to use... that was not given under the ordinary tests for determining the accuracy of testimony.

And when they used the word like testimony and they talk about the usual tests and the customary way of testing out of court statements, I think the fair inference is they're referring to the right to confrontation.

Perhaps another way to think about this is to take a step back and say, what if we decide that statements like this are not testimonial?

The practical... the practical impact of that is not simply that these statements won't... will come in, but that prosecutors and... prosecutors, Federal and State government, will have no incentive whatsoever to ever bring 911 callers into court.

It... it is... across State hearsay law across the country, these are deemed excited utterances.

So if this Court were to say--

Chief Justice Roberts: Well, that's not... that's not true at all.

I mean, if... if the... the witness may be a good witness and compelling on the stand, they may have every incentive to bring her in in person.

This is only addressed to the situations where the witness is unwilling or unable to testify.

Mr. Fisher: --Mr. Chief Justice, I think you got to the heart of the matter when you said that if it's a good witness, the prosecutor will put them on.

The flip side of that is that if the witness isn't so good, the prosecutor would have every incentive at least not to put them on the stand.

Why would somebody put on a stand... put somebody on a stand that doesn't seem perhaps credible or maybe subject to impeachment when they have, in a sense, testimony in a sealed tape recorder already?

Justice Scalia: Well, I assume the defendant could summon that... that witness if... if that witness' location was known.

No?

Mr. Fisher: Well, the defendant--

Justice Scalia: And could find out from the prosecution where that witness was, I assume.

Mr. Fisher: --The defendant might be able to do that.

But, of course, that would... treating the case this way would collapse the confrontation right into the Compulsory Process Clause.

The confrontation right is a right not to be able to bring witnesses into court.

It's to be confronted with the witnesses against--

Chief Justice Roberts: But Justice Scalia's question raises the... the point.

The reason these witnesses are not there is not because of anything that the government has done.

It's... it's the concern they have with a particular domestic abuse situation.

It's not the government that is keeping these witnesses out.

They're not relying on the 911 calls as a matter of preference.

Mr. Fisher: --Well, Mr. Chief Justice, I think your assumption may not be entirely correct.

There's a... there's a portion from, for example, the San Diego prosecutor's office decided, and I believe in the NACDL brief, that says oftentimes they do prefer to... to leave the witness off the stand because they have a better case just using the... the excited utterance type statements.

Justice Ginsburg: Is there... is there... suppose the defendant procured the witness' absence by a threat.

Mr. Fisher: Yes.

Justice Ginsburg: Then the 911 statement could come in.

Right?

Mr. Fisher: That's right.

That's right.

And perhaps... and this gets back to the Chief Justice's question as well.

It helps maybe to separate these kinds of cases into three categories.

We first have the category that the prosecution would prefer not to put the person on the stand.

We think there the Confrontation Clause ought to require them to do so.

We... we next have the category where the defendant, as you say, procures the witness' absence.

We don't dispute that in that scenario the forfeiture doctrine kicks in, which this Court reaffirmed in Crawford.

We don't have any forfeiture question in this case.

And then we have perhaps the gray area, where a witness goes missing through no fault of anybody's, and this Court has said over and over again that there the confrontation right puts the onus onto the prosecution.

Justice Ginsburg: But those are... those are three neat legal categories.

The practical reality, is it not so, is that many women in these situations are scared to death of what will happen to them or they're so insecure financially that they think they have to put up with the battering?

So your neat legal categories really don't conform to what happens in people's lives who are in this situation.

Mr. Fisher: Justice Ginsburg, I don't want to be insensitive to... to witnesses in this situation.

Of course, reluctant witnesses is nothing new, but... but in domestic violence, it's an acute problem.

However, we believe the proper way to deal with that situation is by this Court developing its forfeiture doctrine.

The Sixth Amendment applies across the board to all criminal cases, Justice Ginsburg, and we've cited, for example, in the appendix to our reply brief about 30 cases from the last couple years that have been handled in a victimless fashion like this that are not domestic violence cases--

Justice Breyer: How would you do that?

How would you do that forfeiture?

Mr. Fisher: --Pardon me?

Justice Breyer: How would you do that?

I'm interested in that because I thought it sounded good.

Then I thought about it.

I thought to have forfeiture, you'd have to show that this defendant, in fact, forced the wife not to testify.

It's a crime to do that.

So you'd have to prove another crime against the defendant in order to prove the first crime.

And I thought perhaps that doctrine is not very practical.

You tell me why it is.

Mr. Fisher: Well, that's already what happens under the Federal Rules of Evidence and under the evidence of many States, that there is a rule of forfeiture by wrongdoing.

And so--

Justice Breyer: I understand that.

My point is that to prove the wrongdoing would probably be even harder than to prove the original crime.

All we know is the wife isn't there.

Mr. Fisher: --I'm not--

Justice Breyer: And we suspect that she's afraid of her husband.

He may have offered to cut off financial aid, said goodbye, no money, or he may have done worse.

I'm just saying you're telling us that because the prosecution can prove that in court and only then will it be able to introduce the testimony given beforehand by the missing wife.

Mr. Fisher: --Well, I think--

Justice Breyer: How does it work?

Mr. Fisher: --Well, I think we have... Justice Breyer, like in lots of other scenarios, you have a pretrial hearing, and at that pretrial hearing, of course, the rules of evidence don't strictly apply the way they would in the guilt phase.

So in this very case, if you look at the joint appendix, when... when on the eve of trial Ms. McCottry is no longer going to show up for trial, the prosecutor says, I want to subpoena the jail records and I want to talk to the victim's advocate to find out whether she's been intimidated or kept away.

So the prosecutor herself tells the court how she's going to look for this evidence.

If she had found anything, presumably she would have presented it and she could have presented it that way.

And it's--

Justice Scalia: Maybe we should just... just suspend the Confrontation Clause in spousal abuse cases instead of designing the entire application of the Confrontation Clause everywhere on the basis of what seems to be a special problem in spousal abuse cases.

Mr. Fisher: --Well, of course, Justice Scalia, the Sixth Amendment says all criminal prosecutions--

Justice Scalia: I understand.

Mr. Fisher: --and domestic violence cases are criminal prosecutions.

So we don't think--

Justice Scalia: And I suppose we could also have said that the Sixth Amendment, like some other amendments, doesn't apply to State prosecutions--

Mr. Fisher: --That's right, but we--

Justice Scalia: --or the Confrontation Clause portion of that, anyway, which would exempt spousal abuse cases, by and large, until we... until we enact a Federal spousal abuse statute, which... which may well occur.

It seems to me there... there are better ways to... to solve this problem than to design the whole Confrontation Clause jurisprudence on the basis of what happens in spousal abuse cases.

Mr. Fisher: --I think that's a fair comment.

And let... let me say there are two... there are many ways that you can do that, Justice Scalia, and two of them were readily available to the State in this case.

One is even when a witness goes missing or is unwilling to testify in a hard case, there may well be other ways to prove the case.

Here, the caller said--

Justice Breyer: This is true, but the reason I thought spousal abuse cases are relevant--

Mr. Fisher: --Pardon me?

Justice Breyer: --A reason I thought they were relevant is just what you're about to address.

They're evidentiary of the problem that exists when you bring something within the Confrontation Clause.

Prior to Crawford, even though it was within the clause, if it fell within a well recognized exception to the hearsay rule, it could come in.

So you could bring in co conspirators before the conspiracy ended.

You could bring in, for sure, excited utterances.

You could bring in all kinds of things that now, no matter how reliable, you have to keep them out.

Mr. Fisher: That's right, Justice Breyer, but--

Justice Breyer: And so that is a problem that you have to address in respect to drawing a fairly narrow line, and I want to know what that narrow line is with spousal abuse and other cases in mind.

Mr. Fisher: --Let me give you two ways this case, if... if we assume the State's version of the events is correct, could have easily been proved.

One is that the caller said that a man named Mike was at her house during the entire event.

When the police showed up at her house some 5 minutes later, they never even got Mike's last name.

And, of course, Justice Breyer, the reason why is because they were probably thinking of the Roberts framework and that they wouldn't need this witness, but good old fashioned police work would have presumably found a witness that witnessed the whole event that they could have put on the stand.

The second thing the State could have done in this case is they could have filed the case in a way that they obtained a preliminary hearing.

If what the State says is correct that Ms. McCottry was cooperating up until the last minute, that's a classic scenario where, by way of having a preliminary hearing and subjecting her to cross examination at the preliminary hearing, they could have preserved her testimony.

This Court in California against Green and Roberts itself said that those kinds of prior pretrial cross examination scenarios are good enough to satisfy the Confrontation Clause.

And if the Court has no further questions, I'll reserve the remainder of my time.

Argument of James M. Whisman

Chief Justice Roberts: Thank you, Mr. Fisher.

Mr. Whisman.

Mr. Whisman: Mr. Chief Justice, may it please the Court--

In this 911 call, the operator asked a short series of questions, nearly all phrased in the present tense.

Each question was objectively and reasonably necessary to respond to an apparent emergency.

Justice Scalia: Like what is his name?

I mean, that's the present tense.

Not what was his name or what will be his name.

What is his name?

You think that's the present tense.

So that shows that this is all seeking help.

Mr. Whisman: No, a number of other questions, Justice Scalia, were answered... were asked in the present... present tense too.

And, in fact, the operator, shortly after asking the first questions, one of the first things that she said was help was on the way and then continued with a series of questions.

But as the interview continued, of course, every single question and every single answer was captured on the tape for a jury or a judge to later hear.

The call ended after the operator knew that Ms. McCottry had her door locked, that Davis had left, and that the officer's arrival was imminent.

We ask... respectfully ask this Court, under these circumstances, to hold that the use of this powerful evidence, without live testimony from the declarant, was constitutionally permissible.

Justice Scalia: You know, powerful is part of the problem.

This... this kind of telephone call evidence is even more powerful than... than the kind of a signed affidavit that used to be banned because it was testimonial.

I mean, to hear... to hear the voice on the phone makes it, if it is... if it is impermissible under the Confrontation Clause, it makes it even a more damaging violation than the kind of violation that... that occurred in... in Sir Walter Raleigh's case, for example.

Mr. Whisman: Well, I'd respectfully disagree, Your Honor, although I'd... I'd first note that... that I think the if clause in Your Honor's question is telling.

And I think if that... that doesn't necessarily define whether it's testimonial or not.

But to address--

Justice Scalia: Would you... would you rather put the woman on... if you had a choice, would you rather put the woman on the stand?

Mr. Whisman: --Absolutely, Your Honor, and... and--

Justice Scalia: Rather than have her... her voice on the telephone call--

Mr. Whisman: --Well, if I had to--

Justice Scalia: --when she is... she is in... in... supposedly in great fear of... of her husband and... and... I'm sure you'd rather have the telephone call.

Mr. Whisman: --If you're asking me which would I choose--

Justice Scalia: As a prosecutor.

Mr. Whisman: --Well, if I had to choose, that would be a difficult choice, obviously, but our plan, of course, was to--

Justice Scalia: It may be an easier choice.

Mr. Whisman: --Our... our plan was to do both, and it wasn't until the eve of trial that we learned that the complaining witness, Ms. McCottry, wasn't going to appear.

And I think that the circumstances--

Justice Souter: Did... did you subpoena her at that point?

Mr. Whisman: --She was already subpoenaed, Your Honor, and the prosecutor brought in the detective.

The detective attempt... made numerous attempts to get a hold of her, checked her last known address.

The person there didn't know where she was.

We had one phone number for her.

She wasn't responding to the telephone calls pursuant to our calls to that number.

So we made a number of efforts that are documented in the record to get her to court, once we learned that... that she didn't appear.

Now, at that point--

Chief Justice Roberts: Counsel, your... your position is not that anything that she says or anything anyone says in a 911 call is... is consistent with the Confrontation Clause.

Mr. Whisman: --That's right, Your Honor.

It's conceivable that you could have statements made in the course of a 911 call that wouldn't be testimonial.

Chief Justice Roberts: So what is your... what is your test?

We have your friend saying any accusatory statement made to a law enforcement officer.

What... what is your proposal?

Mr. Whisman: Our focus, Your Honor, is, as I think this Court focused in Crawford on whether or not the government's practice resembles the inquisitorial abuses.

In other words, did you have... in the modern sense, did you have a structured police interrogation such that the interrogator or the questioner might have in some way shaped the witness' testimony.

Chief Justice Roberts: Mr. Fisher tells us that's exactly what happens, that the 911 operator goes through the elements of the crime in a very structured way.

Mr. Whisman: Well, I... I think if you listen to the tape itself, you'll conclude that's not the case.

I mean, in fact, each question that the... that the operator asked was reasonably and objectively designed to facilitate a quick response and to solve the emergency that was apparent.

Justice Scalia: Let's... let's not overread Crawford.

Crawford didn't say that the only thing the Confrontation Clause was directed at was the kind of abuse that... that occurred in the case of Sir Walter Raleigh.

It said that that was the principal abuse at which it was directed.

I doubt very much, unless you think otherwise, that if somebody, without provocation from the police, wrote up an affidavit, signed the affidavit, and gave it to the police, I doubt whether that would have been allowed under the Confrontation Clause.

Do you think it would have?

Mr. Whisman: Well, it may not have, Your Honor, but the... under the test that we're proposing, the... we're placing the focus on situations like this, situations roughly analogous... situations that are distinguishable from what you had with Sylvia Crawford.

And I think that although... although our test may not cover every conceivable hypothetical, I think that, as this Court recognized in Crawford, defining testimonial was going to be a... a task that was going to take some time, and--

Justice Scalia: Your test wouldn't cover the example I just gave.

Mr. Whisman: --No, that's right, Your Honor.

Our test would not--

Justice Scalia: And you think that that should be admissible in a criminal trial?

Mr. Whisman: --No, I don't.

I think it--

Justice Scalia: Well--

Mr. Whisman: --that should be inadmissible, but it should be inadmissible because of the rules of hearsay.

And I think in most States in the Union, it would be inadmissible.

I can't think of a hearsay example that would permit it.

Justice Scalia: --Oh, if the person disappears afterwards, is unavailable.

Mr. Whisman: Fair enough.

It's not an excited utterance.

It's not a present sense impression.

I can't imagine a hearsay exception that would admit it, which is really what brings us back to the core of our theory, too, and that is that... that under the Confrontation Clause, as defined in Crawford, we now have an absolute rule covering a finite--

Justice Scalia: I can't imagine that that wouldn't have been covered by the Confrontation Clause--

Mr. Whisman: --Well--

Justice Scalia: --such... such an obvious violation of your right to confront your accuser, and just because it was presented to the police without... without an initial interrogation by the police, I don't think that would have made any difference at common law.

Mr. Whisman: --And... and, Your Honor, it may be that at some point the Court expands the definition in... in Crawford of testimonial... formalized testimonial materials to include something like that, but I think that in situations where you have an encounter between police and a citizen and statements result, then I think it's fair to focus on the interaction and whether or not the... the person was trying to shape the testimony.

Justice Scalia: I agree that that's the extreme, but you're urging us to... to adopt a test that embraces only the extreme and does not embrace the hypothetical I just gave you.

And you... you can accept that hypothetical without saying that you lose this case, but it seems to me the test you're proposing is... is really quite extreme.

Mr. Whisman: Well, Your Honor, as I say, the test we're proposing I think would cover the majority of cases.

The hypothetical that Your Honor posed was... is... is itself I think somewhat unusual.

We... we do not get statements of that nature.

We do not see them being offered into evidence.

And as I say, I think that if... if we saw cases like that, if we saw statements that were admitted, there may be other ways under the clause that the Court could interpret the Confrontation Clause to exclude them.

I'm not arguing for the admissibility of that evidence.

Quite frankly, I've never in my life even seen a piece of evidence like that offered.

All I'm saying is that I don't believe it falls under this narrow definition of the Confrontation Clause that you outlined in the Crawford case.

Justice Ginsburg: Why don't you incorporate what the Solicitor General has suggested, that is, you draw the line at urgent emergency statements that are calling for... for immediate help?

Mr. Whisman: We certainly don't have any objections to the Solicitor General's approach, Your Honor, and... and in fact, in some ways, because we're analyzing a case like this that arose in an emergency circumstance, I think that it's clear that... that statements that are made in those circumstances, just by their very nature, aren't going to be testimonial.

People don't testify in an emergency.

We chose not to take that approach doctrinally just because we didn't think it was as closely tied to the approach the Court took in Crawford.

But I think it's certainly consistent with the strategy outlined by the Solicitor General.

Justice Scalia: What... what do we do about the... about the fact, which I don't think you... you deny and... and the... the other side points out in both of these cases that, in fact, police departments have their responders to the 911 number intentionally ask a series of questions that gives them all the information they need to conduct a prosecution?

In other words, they are using 911 as a... as a prosecutorial device.

Mr. Whisman: Well, I think that overstates the empirical evidence, Your Honor.

I think that if you look at the training manual in this case that we attached to our briefing in the Supreme Court and refer to our briefing, if you look at the way that this interview was conducted, it's clear that these operators are not, as a routine matter, using the 911 process to develop evidence.

In fact, in this case you'll note that... that after the short 4-minute period, the operator didn't say, well, stay on the line with me a little bit more and let's talk about the background situation here.

And she didn't do that because her training, as documented in the training materials from the Valley Communications Center, said don't get caught up in the background information that led to this event because it can distract you in getting the information that needs to be transferred to the police department right away.

And I think that that is a perfectly reasonable and really the... the better approach for a 911 operator.

So even though--

Justice Kennedy: Did... did she wait until after the 4 minutes to call the police, or did she... she have the police on the way after the first minute?

Mr. Whisman: --It sounds as though that she dispatched them immediately, Your Honor, because--

Justice Kennedy: She... she's just typed that out on the computer or something like that?

Mr. Whisman: --That's right.

And, in fact, there are some times when you can hear all three voices on the 911 tape, not in this instance.

But as I said, almost immediately after the call began, she said, help is on the way, that's because you can dispatch but still obtain information, for example, the date of birth.

And as Mr. Chief Justice indicated, date of birth of the defendant and name, et cetera are extremely important so that in those 4 minutes that it... coincidentally, it was also 4 minutes before the police officer arrived... they can be determining whether or not the defendant has a criminal history.

They can determine whether or not, from their records available to them in the police car, whether or not the defendant has a history of assaults against police officers, whether or not he has a... a history of carrying weapons, et cetera.

So that's all information that the operators are trained to... to obtain and then to transfer to the police as soon as possible.

Chief Justice Roberts: And she's... she's in ongoing... the operator is in ongoing contact with the people she's... the operator has dispatched.

Right?

Mr. Whisman: Correct, Your Honor, and that's why... that's why ordinarily the operator doesn't terminate the call until the police have arrived on the scene.

Here it appears that she terminated the call somewhat contemporaneously with their arrival.

She... she indicates that the police are there and they'll look around for him quickly and then come and check her.

Justice Stevens: What do you have to say about the failure to inquire about Mike?

Mr. Whisman: Your Honor, I... I don't think that's as significant as petitioner suggests.

If you look at the record, in the pretrial testimony of Officer Jones, he asked Ms. McCottry, upon arrival, repeatedly did she know who this other person was, and her answer was she didn't know the person's last name.

The record isn't fully developed on that point, but it sounds like that... that Mike was a friend of the defendant's.

And we know for sure that Mike left with the defendant.

I think it's reasonable to infer he also came with the defendant, but we didn't have any particular contact or handle on this person Mike.

And in fact, if it was a friend of the defendant, you'd think that the Compulsory Process Clause would have given the defendant some basis on which to bring him before the court.

I don't think that that includes any of the... that... that doesn't somehow shift the burden on the defendant in the same way it might if were to force him to bring the declarant in.

If he knew Mike, he... he certainly had the ability to bring Mike in.

So I don't think it's as significant as petitioner suggests.

Your Honor, I... I do want to return for just one moment to this notion that we don't want witnesses to testify and that we are satisfied with proceeding just on... on the basis of other pieces of evidence.

At least in my practice and at least in our county, that's definitely not true.

In fact, even if we have a recanting witness in, for example, the domestic violence abuse scenario... situation, it is often just as effective for us to go ahead and put... put the witness up on the stand, let her tell whatever story she's presently telling, and then play the 911... 911 tape also in conjunction with the testimony of the officers who can describe what... what condition she was in when they arrived.

And I think when you juxtapose the 911 tape, even with the recantation from the witness, frankly sometimes the jurors find it even more illuminating than... than if she didn't appear.

So we do not spend our time trying to put together cases purposely without the victim testifying.

It just so happens that sometimes, at the last minute like this case, we're not able to bring the person in.

But I think--

Justice Souter: How... how often does this happen?

In other words, are we being asked to, in effect, on your part to... to recognize or to derive a special rule for cases which, at least numerically, are sports?

Mr. Whisman: --Your Honor, I do... I cannot answer in a percentage terms how often this happens.

But, you know, that you have a reluctant witness in domestic violence cases is a... is a not unusual occurrence in any event.

But I don't think that--

Justice Souter: But... but I'm talking about the witness who is not merely reluctant, but simply doesn't show up and you make reasonable efforts and you... and you can't find the witness.

How often does that happen?

Mr. Whisman: --As I say, I'm... I'm hard pressed to give a... a percentage number.

But it's not, as I said--

Justice Souter: Has it happened to you before?

Mr. Whisman: --I believe it has.

Justice Souter: But you don't know how many times.

Mr. Whisman: I can't say, no, Your Honor.

I can't say.

I think it's maybe happened once to me, but--

Justice Souter: So we're not... I take it we're not in a position whereby if we hold against you, we are, in effect, nullifying the possibility of enforcing domestic violence laws by criminal process.

Mr. Whisman: --Well, I... I think the other factor that has to be considered, Your Honor, is as soon... as soon as defendants realize that merely pressuring the victim into not appearing will put an end to the case, then it gives the defendant the increased incentive to put the pressure on the victim and cases that otherwise would have pled won't.

So I think it will have--

Justice Scalia: Disappearing.

Not just not appearing.

Disappearing.

Mr. Whisman: --Yes.

I--

Chief Justice Roberts: Thank you, counsel.

Mr. Whisman: --Thank you, Your Honor.

Argument of Michael R. Dreeben

Chief Justice Roberts: Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court--

A panic stricken call for help, which can occur on a 911 call, is not a form of bearing witness within the meaning of the Confrontation Clause that activates the rule in Crawford.

Emergency statements, statements that are made to 911 operators and to officers at the scene investigating an urgent need to protect a person's safety, do not resemble the classic forms of testimonial evidence that were generated under the Marian statutes and the civil law practice that formed the impetus for the Confrontation Clause.

In three significant respects, statements that are made in emergency questioning differ from the kind of testimony that prompted the rule in Crawford and the confrontation right that it rests on.

First of all, in the classic examples of someone giving testimony, which this Court noted means a solemn declaration or affirmation for the purpose of proving a fact, people who are on 911 calls or seeking help at the scene of an... an urgent situation are not making statements for the purpose of providing evidence in a case.

They are making statements for the purpose of obtaining help, and that distinguishes them significantly from the kinds of subtle desires to shape and influence their statements that occur--

Chief Justice Roberts: Well, maybe.

I mean, it's easy to imagine a 911 call that doesn't fit your description.

You know, the person is trying to get in the door.

The call is... you know, this is the fourth time.

I keep calling and I've talked to you about this.

You don't do anything.

He's got to be locked up so this will stop.

I mean, that's not... that sounds more like testimony than an immediate call for help.

Mr. Dreeben: --Mr. Chief Justice, we would distinguish between those kinds of 911 calls where someone is seeking protection from an imminent or present threat to their safety and a 911 call that's making a more generalized report of criminal activity or a desire for safety and maybe speaking in a narrative form about the past.

Justice Scalia: Well, the husband had left the house here, as I understand it, when this... when this call occurred.

Mr. Dreeben: Actually, Justice--

Justice Scalia: She... she wanted the man arrested, but he was no longer in the house, was he?

Mr. Dreeben: --Actually, Justice Scalia, I believe when the call begins, the caller is speaking in the present tense and says, he's here jumping on me again.

And the 911 operator then begins to elicit information to find out what is the level of the threat to her safety and what actions need to be taken and says, okay, I've got help started.

Help is on the way.

Now, tell me what his name is, and she... the... the caller tells what the name is of the defendant and, at that point, says, he's running now.

And so, it's only after critical information is imparted at the beginning of the call that the caller says that he's leaving.

But even--

Justice Kennedy: And what... what's your position if she says he beat me 2 minutes ago, he's left, and he's running down the block?

Mr. Dreeben: --I think in that situation, Justice Kennedy, there is still an imminent threatened potential of a recurrence.

The person could come back.

There's no protection on the scene.

The reason that she's calling 911 and not a friend or... or a health care provider is that she believes she needs protection right then.

And the... the nature of an emergency is such that it exerts a pressure both on the person who is seeking help, as well as the official responder from the government, to solve that urgent problem.

Any evidentiary benefit that may come from that is really an incidental--

Justice Kennedy: Well, suppose... suppose it's a thief, and she said he's taken the diamond necklace and he's running... and he's running away.

We know he's not going to come back.

Mr. Dreeben: --That... that situation would not fall within the emergency rule that the Government is arguing for today.

What we're arguing for is a rule that deals when people's safety is--

Justice Kennedy: So the... the jewelry store owner who reports to the... the police is fleeing on a 911, that... that's not... that's not admissible under your view?

Mr. Dreeben: --No.

I'm not saying that, Justice Kennedy.

I'm saying that the Court isn't confronted in this case with a situation in which threats not to the person but to property or the need to obtain or try to apprehend a fleeing felon are present.

Justice Kennedy: Well, what... what about the... my hypothetical?

Mr. Dreeben: We would submit that that is not testimonial within the meaning of Crawford for many of the same reasons that... that are present in this case.

But it is a different case from this.

Justice Scalia: What do you mean by seeking help?

I mean, it seems to me you're saying seeking help means trying to get somebody arrested, trying to get somebody who has harmed you arrested.

In this case, he was gone out of the house.

She had gone and locked the door before she came back to the phone and gave most of this testimony.

Mr. Dreeben: Well--

Justice Scalia: And... and in the... in the jeweler case, the guy is running down the street.

What is the jeweler... is the jeweler really worried about the guy turning around and coming back to rob some more?

He wants the man arrested.

Mr. Dreeben: --The urgency certainly in... in the jewelry thief hypothetical does deal with apprehending the person who has just stolen the goods.

And that's why I say that it falls outside of the rule that the Government is arguing for today.

But, Justice Scalia, I think--

Justice Kennedy: But I'm concerned about the rule you're arguing today because it... it seems to me there's a good case for allowing the... the statements by the jewelry store operator.

Mr. Dreeben: --I think there is a good--

Justice Kennedy: And... and I want to know what your position is so that you don't come back next week and say, well, now we want the jewelry store--

Mr. Dreeben: --Well, I'm not going to say that we wouldn't, depending on how the Court analyzes this case, argue for a submission that that's not--

Justice Kennedy: --We've got to... you analyze the case now and then we'll analyze it later.

[Laughter]

Mr. Dreeben: --What the Court needs to analyze today is whether an emergency statement where somebody is seeking protection and there is a threat of imminent recurrence of the very violence that has triggered the call is testimony.

And it's not testimony because the sort of risks of government shaping and the declarant focus on providing evidence for use in a criminal case are not present, and the information has, as Justice Scalia pointed out, a unique probative value that's very different from the kind of submission of an affidavit or submitting to a civil law deposition that prompted the confrontation right.

The Framers were thinking about things that we all would recognize as testimony, being deposed, submitting an affidavit, appearing before a... a magistrate in a pretrial proceeding, and they used the word witness in the Confrontation Clause not only to refer to the kinds of statements that were covered, but in connection with knowledge that the same word appears in the Fifth Amendment and in the Sixth Amendment Compulsory Process Clause, where in all of those contexts, its most natural application is to the formal acquisition of evidence.

Justice Breyer: What do you say in that respect about the blue brief's reference to 17th century cases, the hue and the cry where someone went out and told the sheriff, help, I'm being beaten up, and that that evidence wasn't admissible?

Mr. Dreeben: Well, I think what's really striking, Justice Breyer, is that there is no 17th century case law that reflects that.

There's really a virtual, complete absence on the other side of this case of an affirmative argument supported by decided cases that says that evidence of that character was even known to the Framers, let alone excluded.

If you look closely at their constable cases, which is the closest cases that they... they submit, one of them is a report from the Old Bailey online source which contains transcripts of criminal trials in... in England, and one of them, the Radbourne case, is right around the time of the framing, and there's a little line in the transcript where the constable says, well, I bent down and I asked the victim something and then the judge says, well, don't say that.

There's no evidence that that was regarded as a... a legal ruling under confrontation principles.

There's no evidence that the Framers were aware of that Radbourne Old Bailey report, and there's additional statutory basis in the treason statute, which was applicable there, which said that all evidence had to be given face to face.

So that's their primary authority.

Their next authority--

Justice Scalia: Well, it's... it's... it may be not a lot, but it's something.

You don't have anything to the contrary.

Mr. Dreeben: --What we have--

Justice Scalia: You don't have anything which shows that these hue and cry reports were admitted, and there were a lot of them.

They... they were done regularly.

Mr. Dreeben: --The hue and cry reports, Justice Scalia, as I think your earlier questioning suggested, do not necessarily involve the kind of emergency situation what... that we have here where a person is reaching out from an ongoing present criminal act against them and seeking help.

And the fact that we have very little evidence at all of how 17th century British law handled this is really, I think, persuasive evidence that the Court should not deem the confrontation right as a response to some sort of abuses in this area.

Justice Scalia: I would say that a hue and cry report is not the same as a woman being beaten and... and picking up the phone while the crime is progress.

But I think it's quite similar to the... the jewelry hypothetical that Justice Kennedy gave you which you're unwilling to say is... is not covered by the... is covered by the Confrontation Clause, and I think it's quite similar to a woman, where the husband has left and she's locked the door and she wants the husband arrested.

I think it's quite similar to that.

But for the telephone, it's... it's someone who's been the victim of a crime who goes to a public official, as soon as possible, and says, I've been... I've been subject to a crime.

I want to report the crime and have the person arrested.

I think it's very similar.

Mr. Dreeben: Justice Scalia, first of all, there is evidence that the hue and cry practice existed.

There is not evidence about how hue and cry reports were viewed as a matter of evidence law.

It is very difficult to transpose into 17th and 18th century English practice what we are dealing with now, in part because the system of public prosecutions that we have today where an official prosecutor representing the State carries the ball in a criminal case did not exist.

The accuser had to appear in court as the private prosecutor.

If the accuser did not appear, there was no prosecution, and these prosecutions were simply dismissed because there was no one official on the scene to carry the ball.

So the... the speculation that's required requires a number of inferential leaps that petitioners have to make in order to draw an analogy.

And at the same time, there really is an intuitive difference between the kinds of statements that people make in emergencies and the kind of core testimonial statements that we know prompted the confrontation right, the Sir Walter Raleigh case involving affidavits and letters, the Marian practice under which testimony was formally taken in the calm of a magistrate's rooming house rather than in the immediate aftermath or time when a crime was actually ongoing.

Chief Justice Roberts: Mr. Dreeben, you say focus on the emergency nature.

Very little of what took place in the 911 call is emergency.

He's beating me.

He's jumping on me.

Yes.

What's his name?

I mean, it's not like they'll send help if his name is Joe but they won't if it's Mike.

It doesn't matter.

Which direction is he running?

That's not related to the emergency nature of the... of the call.

Mr. Dreeben: It is, Mr. Chief Justice, in the sense that it's information that's needed to respond to and resolve the imminent threat to this woman's safety, which would certainly occur if the individual decided to come back and finish what he'd started.

And if a law enforcement authority set up its 911 calls so as not to gather adequate information and this individual had come back and actually beaten or killed the victim, it would certainly be regarded as an inadequate response to the emergency situation of an ongoing violent attack.

And so for that reason, the rule that we're describing here for the Court would deal with not only the present emergency but also its imminent, threatened recurrence.

Justice Breyer: Well, rather than build that into the law, it might be wiser to deal with Justice Kennedy's case, in whatever system we come up with, explaining it.

So what is your full explanation of the diamond necklace?

Mr. Dreeben: My... my view on that is that the kinds of statements that are made in the immediate report of a crime are really in the form of excited utterances that are much different from the kind of dispassionate testimony that occurs after the fact that prompted the confrontation right.

Now, the Court could accept that line and say that jewelry thief reports are not testimony within the meaning of the Confrontation Clause, or it could disagree and say that no, when there's not the immediate threatened, imminent potential for a recurrence of the violence, then we're going to treat that as closer to simply a report of a crime and treat it as testimonial.

The Court could go either way on that without touching the core of what's at issue today, which is namely emergency situations that pose a threat to the safety of the person who's making the call or who's encountered by a law enforcement officer on the scene in the immediate aftermath of an attack.

Justice Scalia: And you wouldn't say that every question asked in that context.

Don't we have to do it question by question?

I mean, what if one of the questions was, you know, has he beaten you before?

How many times before?

You know, are you going to allow that in too--

Mr. Dreeben: I think that--

Justice Scalia: --as an excited utterance?

Mr. Dreeben: --the more that the... the questioning begins to delve into a past narrative of past criminal activity, the more there is a reason to think that it serves, in addition to its protection purpose, an evidentiary purpose.

I'd hasten to add, Justice Scalia, that that kind of information is very important for the officers to know to gauge the seriousness of the threat, to get the kind of idea of who they are dealing with, and to respond effectively.

So it is reasonably necessary for those kinds of questions and that information to be elicited.

But I also agree with Your Honor's suggestion that not everything that occurs in a 911 call should be regarded as per se non testimonial.

Not everything that happens at the scene of a crime should be regarded as per se non testimonial.

And naturally, the Court is going to have to apply a certain degree of analysis to the actual questions and answers that are given.

But if you look at the protocol in this case for the 911 call, if you look at the kinds of questions that were asked and the information that was given, it is all reasonably necessary to resolve an emergency by a person who has really called in a state of extreme stress.

Rebuttal of Jeffrey L. Fisher

Chief Justice Roberts: Thank you, Mr. Dreeben.

Mr. Fisher, you have 4 minutes remaining.

Mr. Fisher: Thank you.

Let me say a word about the record and then two things about the emergency exception that we've been talking about.

First, in the record it's always been accepted in this case that Mr. Davis had left the house when the 911 call started.

In the joint appendix, page 117, that's what the Washington Supreme Court said, and at page 30 of the evidentiary hearing in the trial court, the prosecutor submitted the case that way as well.

Now let me address the history here because it's important.

And Justice Scalia is exactly right.

There's not a single case historically where a statement to a law enforcement agent accusing someone of a crime was admitted in a criminal case.

We're not aware of one.

Justice Breyer: That may be hearsay.

That may all be hearsay.

Mr. Fisher: It... it is what it is, Justice Breyer.

The... the oldest case that is in the briefs on the other side is White v. Illinois in 1992.

So for some 500 years before that.

And... and perhaps when we have to draw an inference, we do have... to a certain degree we acknowledge the dog that doesn't bark.

We have evidence that was out there and simply wasn't used.

Let's look at the history of the Marian statutes.

And I'm... and I want to refer the specifically to page 101 of Sir Matthew Hale's treatise.

He talks about the... both the problem with the hue and cry and then the reason we have the Marian statutes.

The reason we have the Marian statutes was because for pretrial bail and committal hearings, the courts were not prepared to simply go on the initial reports.

They wanted a formal examination of the witness to use at even the pretrial hearing, to detain the person pending trial.

And Sir Matthew Hale at page 101 says the problem with the fresh reports of the hue and cry, is that... is that they're not under oath.

They don't... they don't even answer all the questions that we would want answered.

So what the United States is asking you to accept is that the kind of evidence that the Framers would not have even been prepared to allow at a pretrial bail hearing... rather, they wanted to have something more formal... they would now accept to be used in the trial itself.

And what we think is that this turns everything on its head.

The reason the Marian statutes were abused is because, of course, in continental Europe that was an accepted form of evidence, and so there was some reason to believe these formal statements could be used.

No one ever suggested that hue and cry could be used.

Finally, let me say a word about police incentives.

If you accept the rule that the... that the United States and... and the State is asking you to accept, think about the incentives you put on 911 operators.

They're not supposed to ask too many questions.

They're not supposed to get too much information.

The same would go for the responding officer.

They don't want to ask too many questions, structured questions, make sure who did it, make sure they have the details because then somehow these statements become testimonial.

What our rule says is it frees the 911 operator, it frees the police officers to do what they're supposed to do, which is immediately start responding and both help people and start gathering evidence from the moment that a crime is reported.

And that's what we think the Confrontation Clause is all about.

It's not... it's about the way the case is proved at trial.

The Confrontation Clause... as opposed to other emergency doctrines this Court has in the Fourth Amendment area, for example, the Confrontation Clause has zero to say about the way police officers do their jobs or the way the 911 operators do their jobs.

If they go out and collect structured affidavits under oath, that the 911 operator put the caller under oath, there's nothing wrong with that.

If the 911 operator says, I want to be sure I have this right, describe to me exactly what he looks like, and tell me more about him, that's what we would want somebody to do.

And we shouldn't put a perverse incentive for these first responders that, all of a sudden, once they start gathering useful information for the criminal justice system, that some sort of new rule triggers.

All we're saying is that these are the kinds of statements that were... that the Framers would have cared about and that they did care about, and that nowadays if the State or other prosecutors want to use them, they should be duty bound to bring the witness into court as well to submit the witness to cross examination.

If there are no further questions, I'll submit the case.

Justice Stevens: I have one last question.

How do you think Professor Wigmore would have decided this case?

[Laughter]

Mr. Fisher: Well, this Court noticed that Professor Wigmore had the view that the Confrontation Clause applied only to witnesses that actually took the stand.

So he would have thought the Confrontation Clause didn't apply at all.

But he would have acknowledged to you... and this is interesting from his treatise... that these were testimonial statements.

He said as soon as somebody starts... as soon as in a criminal trial we use a statement narrating a past event, it's testimonial.

However, Professor Wigmore just didn't quite have the Confrontation Clause right.

Chief Justice Roberts: Thank you, counsel. The case is submitted.