HAMMON v. INDIANA
Hershel Hammon was charged with domestic abuse after police responded to a call from his house. When they arrived, Hammon's wife told police that her husband had beaten her. While Mrs. Hammon did not testify at Mr. Hammon's trial, the police officer did testify about what she had told him. Mr. Hammon's attorney objected to the admission of the testimony without cross- examination, but the judge allowed it under the "excited utterance" exception to the general rule against hearsay testimony (second-hand reports of what someone said or did). The police officer was not trying to preserve evidence but merely to assess the incident, so Mrs. Hammon's statements to him were not the sort of testimony prohibited under the U.S. Supreme Court's decision in Crawford v. Washington.
Under the U.S. Supreme Court's interpretation of the Sixth Amendment in Crawford v. Washington, may statements made to police during investigation of a crime, though not made with the intent to preserve evidence, be admitted in court without allowing defendants to cross-examine the person who made the original statements?
Yes. In an 8-1 decision authored by Justice Antonin Scalia, the Court ruled that the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. In Hammon's case, however, the Court ruled that Mrs. Hammon's statements to the police were testimonial. At the time of her questioning, Hammon faced "no emergency in progress" and "no immediate threat to her person." Instead, the relative safety of the conversation between Mrs. Hammon and the officer made it "formal enough" to qualify as a "testimonial" statement intended as evidence of the past crime. The Court left open the possibility that Hershel Hammon could have forfeited his constitutional right to confront the witnesses against him by coercively preventing his wife from testifying. Otherwise, however, the Court ruled that the Sixth Amendment did not allow Mrs. Hammon's testimony to be used against Mr. Hammon without her presence at the trial. Justice Clarence Thomas wrote a dissent criticizing the Court's test as unworkable. In Justice Thomas's view, Hammon's statement was not testimonial, because the conversation was not a "formalized dialogue." This case was decided along with Davis v. Washington.
Argument of Richard D. Friedman
Chief Justice Roberts: We'll hear argument next in Hammon v. Indiana.
Mr. Friedman: Mr. Chief Justice, and may it please the Court--
The Court can decide these cases, as it decided Crawford without testing the outer bounds of the Confrontation Clause, by adopting a simple proposition that is easily understood by and intuitively sensible to ordinary lay people and so capable of being passed on from generation to generation as one of the cornerstones of our fundamental liberties.
A criminal conviction cannot be based on an accusation made privately to a known law enforcement officer.
If the State wishes that such an accusation be presented in support of a conviction, then it must ensure that the accuser testifies in the manner long required by the common law system of criminal justice, in the presence of the accused, under oath, and subject to cross examination.
As in Crawford, the Court does not need to offer a comprehensive definition of the term testimonial.
It is enough to say that an accusation to a known law enforcement officer must be testimonial under any plausible definition.
Justice Breyer: When, for example, there's an undercover agent, a law enforcement officer... let's think of the mafia or the Ku Klux Klan reveals himself.
One of the coconspirators during the ongoing conspiracy switches sides.
He doesn't switch.
He's still in the conspiracy.
Makes a whole lot of statements.
Those are all inadmissible, though they'd come in now because they would be in the furtherance of the conspiracy.
Mr. Friedman: Statements in furtherance of a conspiracy, if I understand--
Justice Breyer: Yes.
There... but there's... in other words, I've got your definition and all I've tried to do is create a circumstance where, while it fits your definition, it's made by a person that is in the conspiracy.
So I make him undercover, the law enforcement officer.
Mr. Friedman: --If it's an undercover law enforcement--
Justice Breyer: But known.
Mr. Friedman: --By... by known, I mean to the declarant.
Justice Breyer: Yes.
Mr. Friedman: By known, I mean to the declarant.
So if it's--
Justice Breyer: Yes.
Mr. Friedman: --if it's an undercover agent and so it's a statement to an undercover--
Justice Breyer: So you're saying my hypothetical could never come up.
What I'm trying to do is... it seems to me that your hypothetical is going to take statements that would come in that are pretty far removed from the prosecution that are in odd circumstances, are not just testimonial at all in anybody's thought, but it keeps them out.
Mr. Friedman: --I... I'm afraid I... I don't fully understand the hypothetical.
If the... if the officer is not known to the declarant as a law enforcement officer, then there's no problem.
Then... then the statement could--
Justice Breyer: He's known.
Mr. Friedman: --If he's... he's known to the law enforcement officer and the member of the conspiracy is making a--
Justice Breyer: It's continuing.
Mr. Friedman: --It's a continuing conspiracy, but... but that statement to the law enforcement officer saying that somebody else in the conspiracy has committed a crime, would not, in fact, be in furtherance of the conspiracy.
It would blow the conspiracy apart.
Justice Breyer: All right.
You've convinced me I have a bad hypothetical.
You go ahead.
Mr. Friedman: I... I don't think it's... Your Honor, I feel duty bound to say there are no bad hypotheticals, but there are... there are easy ones, and I think if... if it's a known officer... it's... in that situation, it's going to be accusatorial.
If it's not a known officer, it's... it's not--
Justice Alito: What if a statement is made to a known law enforcement officer providing information that's... that's very incriminating against somebody, but it doesn't specifically identify that person?
Does that fall within your test?
Mr. Friedman: --I... I believe it does.
Of course, in this case we have both, a description of the crime and an identification of the perpetrator.
Justice Alito: So it's an accusation even though it doesn't identify the person who is alleged to be the perpetrator?
Mr. Friedman: We could call it what we will.
I think... I think that it still would be within the narrow proposition that we're advocating that a... that a description of the crime to a known--
Justice Alito: So really, your test is any evidence that's... any statement made to the police or... is an... is testimony.
Mr. Friedman: --No, Your Honor.
I think it... it either has to describe the crime or identify the perpetrator or, as in this case, do both.
Justice Alito: Any relevant evidence given to law enforcement is testimonial.
Mr. Friedman: --Well, when you say... when you say relevant, I think that if the law enforcement officer... if... if it's a statement to a known law enforcement officer in the line of duty, it's... it's almost always going to be testimonial.
If it... if it identifies the... the perpetrator or describes the crime, I would say it's clearly testimonial, or if it's in response to the... to the officer's inquiries, it's clearly--
Justice Alito: If somebody calls and says, I just saw a blue Toyota with Ohio plates commit a hit and run, that's testimonial?
Mr. Friedman: --I believe... I believe so.
Now... now, in fact, that would provide some identifying information because it is a person who is associated with that blue... with that blue Toyota.
But if it's simply a officer in the donut shop, I just saw Jack, he's back in town, with no clear relation to any... any crime, that's presumably just chatter and that wouldn't be testimonial even if it... even if it later becomes relevant.
Justice Alito: But if it's relevant that Jack is back in town, then that's testimonial.
Mr. Friedman: If... if at the moment that it's made, the declarant understands that Jack being back in town might be useful in an investigation, or if a reasonable person in the position of the declarant would understand it, that would be testimonial.
Yes, Your Honor.
So the... the basic principle for which we're advocating does not lie at the... outside of the... of the definition of testimonial.
I think it's simply a core proposition.
Justice Alito: And the people who are making all these statements are... are to be understood as witnesses against somebody within the... the language of the Confrontation Clause?
Mr. Friedman: I think within the... within the meaning of the Confrontation Clause, if those statements are allowed at proof... as proof at trial without the person coming in, then what we have essentially done is created a system by which people can create evidence for use by the legal system, by engaging those statements without coming into court.
That's... that's right.
And so I think one of the critical factors here is to imagine what happens if statements, such as the ones in... in this case, are admitted... are admissible, and this Court holds... holds that they are, then basically they always can be admitted.
Then any State is free to create a system in which a statement to a responding officer comes in as proof.
There's no need for the... for the... the declarant to show up at trial, and there's no doubt that... that that is what would happen.
California and Oregon have already adopted such statutes, and... and my State of Michigan is on the verge of doing so.
Justice Scalia: Statutes that... that say what?
Mr. Friedman: That say... that say accusations to a... made to a law enforcement officer, in the case of Oregon and the pending Michigan bill, accusations of domestic violence are admissible so long as they are made reasonably freshly... but they give a 24-hour time frame... they... they are admissible.
No need for excitement.
So... so the idea that... that the jurisdictions have limited this to... to excited utterances is... is not... is not so.
If... if the Court affirms the decision here, I think the message would go out that these... that these statutes are perfectly okay.
Justice Ginsburg: And those... those--
Justice Kennedy: And... and what... what is the theory on which the statutes are... are adopted?
Mr. Friedman: The--
Justice Kennedy: What's the argument that they propose to say it's not testimonial?
I know you disagree with it, but--
Mr. Friedman: --Justice Kennedy, the... I don't think there is a theory.
And I say that quite seriously.
I... I actually testified last month before the Michigan House on the... the bill saying I believe this bill is blatantly unconstitutional.
I believe it's going to be held unconstitutional within a few months.
There was not a high level of interest in the constitutional argument before the legislature.
I don't think there is a theory.
I think the... I think the theory is that prosecutors say that these would be good laws to pass.
Justice Breyer: What's... what's worrying me on this is... I'll tell you my concern without the hypothetical.
Crawford wrenches the Confrontation Clause free of the hearsay rule, and therefore, testimony... it might be testimonial even though it is not hearsay or falls within an... doesn't fall within an exception.
You understand what I'm saying.
Now, you come along with a suggestion, and what struck me immediately was that, wait a minute, can't I easily think... apparently not easily... can't I easily think of the instances where it would be testimonial but it isn't an accusation made to a policeman.
And conversely, can't I easily think... not easily... of instances where, well, it would have come in, but it was statements made to a policeman maybe years before, maybe about this, maybe about that?
Maybe it's a hospital record.
Maybe it's a business record.
There are all kinds of exceptions to the hearsay rule, and they don't run parallel to the test you've just given.
That's what's worrying me.
What's the test?
Mr. Friedman: --Your Honor, let... let me be very clear.
We do not propose that this categorical principle that an accusation to a law enforcement officer is a definition of what's testimonial.
We regard this as a core category of testimonial statements such as the core categories that the Court listed in Crawford.
So... so if a statement fits within that... within that category, that is sufficient to make it testimonial.
Justice Ginsburg: --Such as in Crawford, but in Crawford, it was the kind of formal statement, the Court said, materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine, or similar pretrial statements.
Similar pretrial statement is not an agitated woman calling 911 or telling a police officer who... as in your case, who comes in response to a call, there's a disturbance going on in that house, get there.
Mr. Friedman: Right.
I... I understand, Justice Ginsburg.
Of course, Crawford was only listing a non exclusive list of... of core... of core categories.
Justice Scalia: Yes.
We... we... that... that quotation was a... a description of what Crawford described as the core.
Mr. Friedman: Right.
Justice Scalia: Not... not the totality of--
Mr. Friedman: Certainly not the totality, and if you say, well, this statement was informal, it... it doesn't make sense and I think it conflicts with a comment in Crawford in footnote 3 to say, well, informal testimony is... is okay, as the Court said in... in Crawford.
If... if sworn out of court testimony is invalid, it wouldn't make sense to say that unsworn testimonial statements are perfectly okay.
Now, so far as the principle that... that because the witness is under agitation, the... the Confrontation Clause doesn't... doesn't apply, I don't think that's... that's valid at... at all.
It certainly isn't valid historically.
If... if it were, we would have seen examples over history in which agitated declarants... their statements came in.
But as... as General Dreeben has indicated, the very... the very organizing principle of prosecution was that the accuser must come and... come and testify.
Justice Ginsburg: Did the legislatures that have passed laws of the kind you describe have before them information that there is a rather high incidence of the victim being intimidated and therefore not showing up in court to testify?
Mr. Friedman: Your... Your Honor, in the... in the Old Bailey sessions papers there were approximately 2 percent of the cases, the victim who was the prosecutor did not show up.
It was a recurring... a recurring matter.
Why they didn't show up may have been for various reasons.
And I want to emphasize that the State in the very first paragraph of its brief emphasizes that there are numerous reasons why, in the domestic violence context, the... the accuser may not testify in court.
And in those roughly 2 percent of all the cases, which is 2,000 cases, in not a single one... well, I'm sorry.
There was one in which there was a... a conviction.
That's because... because the defendant... because the defendant confessed.
But in all the others, the accusation was... the... the case was summarily dismissed.
Justice Scalia: --Well, you... you have to assume not only that the victim is unwilling or reluctant to testify, you have to assume that the victim has disappeared because the victim, unwilling or not, could be subpoenaed.
Isn't that right?
Mr. Friedman: The... the victim could be subpoenaed, and in... in this case, as in Davis, the victim was subpoenaed, but subpoenas have to be enforced.
And... and I think in some cases the prosecution does... simply doesn't enforce the subpoenas.
It's what was the Cook County--
Justice Scalia: No, but I'm saying the scope of the problem is... is much more narrow than what is suggested by simply describing how often it is that the... that the complaining witness is reluctant to testify.
That doesn't stop anything.
Mr. Friedman: --Well--
Justice Scalia: Reluctant or not, that witness can be... can be subpoenaed.
Mr. Friedman: --That is... that is correct, Justice Scalia.
It is the State's choice whether to compel the... the person to... to testify, and if, as Cook County has done, they put in particular efforts to protect the witness, to encourage her to testify, then prosecutors get a very high return.
That is, in... in the Cook County program, 80 percent of... of the witnesses testify.
They get a very high conviction rate, and they protect the... the witnesses.
So I think the message from this Court is going to be one of two things.
Either it's okay to adopt a California/Oregon type of statute and just... just let any statements come... come in, or we have to put in the resources to... to... into domestic violence to ensure that the witnesses come... come to court.
Justice Ginsburg: I don't know why the or would necessarily follow.
I mean, if you prevail, there's nothing that compels the State to put money in what has been suggested, a training program, shelters, counselors for these people.
Mr. Friedman: They--
Justice Ginsburg: Nothing at all compels the State to do that.
Mr. Friedman: --They... they would not be compelled to do that, but... they would not be compelled constitutionally to do that.
They would simply be deprived of a... of... of the so called evidence based prosecution, which has just been a phenomenon of the last 14 years.
Justice Scalia: Your point, I thought, was that that would be the incentive for--
Mr. Friedman: That... that--
Justice Scalia: --for police departments, of course--
Mr. Friedman: --That... that... that is correct.
Justice Scalia: --if they want to make their cases.
Mr. Friedman: That is correct.
They... they would... they want to make their cases, and... and I think they can make their cases best if the witness testifies, in which case, under the Confrontation Clause now... now construed, there's no objection then to bringing in the prior statement at all.
Justice Breyer: What about present sense perceptions?
That might be a good one.
Mr. Friedman: And... and--
Justice Breyer: Apparently 803(1) has the first exception--
Mr. Friedman: --Right.
Justice Breyer: --to the hearsay rule.
It's present sense impression.
Mr. Friedman: Yes.
Justice Breyer: So on the phone, somebody is describing very calmly... very calmly to the policeman the terrible crime that he sees going on in front of him.
Now, I gather from the fact that it's an... that it is a exception, that now in the Federal courts that would be admissible.
Mr. Friedman: Well, it would have been under Roberts presumably.
Justice Breyer: Yes.
Forget the... yes.
Every day of the week, they come in.
Is that right?
Present sense impressions.
It's here as the first exception to the hearsay rule.
Mr. Friedman: It's... it's an exception.
In civil cases, there's no problem.
In... in criminal cases--
Justice Breyer: Well, there it is, 803(1).
Mr. Friedman: --That's right.
Justice Breyer: I mean, and you practiced this for years.
I mean, you're an expert in this, and I... I think my impression... just tell me if I'm wrong... is it's 803(1).
It says a present sense impression comes in.
So I guess it does unless I'm--
Mr. Friedman: Yes, but until... until White v. Illinois basically let the guard down, these... these statements could not come... accusatory statements that might have been in present sense impressions did not... were... were not the basis for prosecutions.
Once... once White v. Illinois was decided, then... then courts allowed them in routinely.
Justice Breyer: --So if we adopt your rule, a person calls up on the phone and says, I'm here at the baseball game, there's a terrible crime going on in front of me, and he describes it--
Mr. Friedman: Right.
Justice Breyer: --to the police officer, that no longer could come in.
Mr. Friedman: I... I believe that is correct because that--
Justice Scalia: I should hope not.
Mr. Friedman: --It... it shouldn't.
It's an accusatory... it's an accusatory statement to... to a... a... to law enforcement.
Now, I mean, the Court could, if it wanted, carve out or... or draw the line at statements that are describing the contemporaneous... the absolutely contemporaneous commission of a crime.
I don't think it's a particularly good line to draw.
Justice Breyer: No, no.
Mr. Friedman: Yes.
Justice Breyer: --trying to reduct you out of--
Mr. Friedman: Right.
Justice Breyer: --I just wanted to know what the facts are about the rule.
I was just... that's what I was asking.
Mr. Friedman: The... the rule is that the hearsay law... the rule against hearsay provides... the modern rule against hearsay provides no... no restriction.
The Confrontation Clause should.
And let me address the... your concern, Justice Breyer, that is this hearsay rather than... than confrontation.
I think... I think that the notion of the accuser is central to the confrontation right and always... and always has been, and those 2,000 cases really develop.
As of 1791, the rule against hearsay was barely developed, and we cite... or the... the rule against hearsay was barely developed and Edmund Burke said that a trained parrot could recite all the laws of evidence in 5 minutes, and that is no longer... that is no longer so.
Justice Scalia: --Edmund Burke say that?
Mr. Friedman: Edmund Burke said that, yes.
Justice Ginsburg: Mr. Friedman, can I go back to your answer that the police will then... in response to the position that you're urging, will then protect the victim and all these fine things?
It wasn't so long ago that the police wouldn't bother with these prosecutions at all.
They didn't care about them.
And if you say you're going to have to drag in the victim, you're going to have to jail her for contempt if she's so scared that she won't testify, they'll say, who needs it.
We've got a lot of other crimes to prosecute.
Mr. Friedman: Well, I... I hope not, Your Honor, and I... I believe that we've gotten past the point.
I mean, I think we now recognize how serious a... a crime domestic violence is.
Let me emphasize that it is just as narrow... sometimes the prosecutor will compel a victim to testify.
It will still be that... sometimes they will and sometimes they won't.
That will be a matter of... of State policy.
There are other approaches as... as well.
And... and hopefully, compulsion isn't necessary, I think, if the prosecutors pay... pay sufficient attention and... and care, but beyond that, there's the possibility of forfeiture.
If, indeed, the reason why the victim will not testify is because of intimidation, then... then the prosecution... it is open to the prosecution to prove that.
In many cases, the case can be proven--
Justice Ginsburg: That's very powerfully hard to prove, isn't it?
Mr. Friedman: --I don't think so, Your Honor.
And... and, of course, it remains to be seen just how easy or how hard it... it is to... to prove.
But, in fact, the... as Mr. Fisher said, the rules of evidence don't apply at the... at the preliminary hearing.
It's the judge, not the... the jury that has to decide.
And the standard of proof presumably would not be beyond a reasonable doubt.
Chief Justice Roberts: But you are back... as Justice Breyer pointed earlier, you're making the prosecution prove two crimes instead of one.
Mr. Friedman: --Well, intimidation is... is a crime, but it wouldn't... it wouldn't be a full criminal case.
It would be, as in many other contexts, simply a preliminary hearing on... on the threshold issue.
As we have for every evidentiary problem, for every... for any... any evidentiary problem, such as does the present sense impression exception apply, there's a preliminary issue.
Chief Justice Roberts: Well, but every evidentiary problem, the... the root of the problem is not the inability of the... or the unwillingness of the primary victim to testify.
I mean, that's what makes intimidation so hard to prove in these cases is because you have to get the... if... if the intimidation is successful, the witness to testify about the... the crime is unavailable and unwilling to do so.
Mr. Friedman: --Well, it... it would remain for the Court to determine what the standards are for proving--
Justice Scalia: Well, you wouldn't have to prove beyond a reasonable doubt, would you?
Mr. Friedman: --I... I--
Justice Scalia: This is a criminal... this is a pretrial hearing on whether the... the... there's been intimidation.
Couldn't the judge just find it more likely than not that the defendant has intimidated a witness?
Mr. Friedman: --Prior decisions of the Court suggest that that would most likely be the... the standard.
It may be--
Chief Justice Roberts: But the... the judge can't make that finding if the witness doesn't testify, can he?
Mr. Friedman: --Oh, I think that... that the judge may well, and I think it would remain--
Chief Justice Roberts: How's that?
The prosecutor goes in and says, we think the defendant has intimidated the witness by saying he's not going to support her financially, he's going to leave, whatever, and... and the... presumably the... the defendant says no... no, and the witness isn't there.
The judge says, well, I find by a preponderance of the evidence that he has intimidated her?
Mr. Friedman: --I think it remains an open question what the standards would be for... for proof and whether that would be constitutionally accepted.
This, of course, is a matter for... for another day.
I think what the Court can't do is effectively assume as a... or create an irrebuttable presumption that in all domestic violence cases, the... the victim has been intimidated, which is what the State asks, even though they acknowledge at the very outset that there are many other reasons why... why the victim may not testify.
The... there's no domestic violence exception for the confrontation right, just as there's no organized crime exception for the confrontation right.
So I do think that... that what the procedures are for forfeiture is... is a big open question.
But... but it's the State's burden to prove forfeiture.
It... it can't be assumed as a per se matter.
Justice Breyer: Do you have a second choice rule?
I mean, we have Professor Amar, who has pretty formal criteria.
Mr. Friedman: Yes.
Justice Breyer: We have the rule that you just enunciated, and I don't want, before you sit down, to... I want to find out if you have an intermediate position, a fall back position.
Mr. Friedman: Well, our... our narrow rule is... is simply the... an accusation to a law enforcement officer.
We... we, of course, believe that the more general test is reasonable expectation of the declarant and that's where... where I disagree with... with Professor Amar.
I don't know that he would... I don't know that he would disagree.
I'd be surprised if he would disagree that an accusation to a law enforcement officer is... is testimonial because... because that is such a... a narrow principle.
Now... now, he does speak about... about formality, but formality, for reasons I suggested, I don't think... I don't think makes an awful lot of sense because it then gives the police officers and prosecutors an incentive to take testimony informally.
And what we have then, as in this case, we have not the affidavit, which... which the State is condemning as admissible.
They now concede that that's inadmissible.
The evidence on which this prosecution is based is a police officer's rendition of what he was told orally, which is a denigrated form of... form of evidence.
That's where a formality rule will... will get you.
Chief Justice Roberts: Where... where do you come out on the person running out of the house and yelling to her neighbor with the law enforcement officer standing by?
Mr. Friedman: And... and--
Chief Justice Roberts: It's not... the statement is not to the law enforcement officer, but he or she overhears it.
Mr. Friedman: --If... if the... if the speaker knows that the law enforcement officer is there--
Chief Justice Roberts: Doesn't.
Mr. Friedman: --then... then I... then... then it's not within the narrow categorical rule for which we're... we're asking now.
It may come within the general test of reasonable expectation.
Chief Justice Roberts: Is anybody... is anybody working for the State a law enforcement officer?
Mr. Friedman: No, not... not within the... within the narrow categorical rule that we're asking.
I think it's another question if, say, you're speaking to a... a doctor who's an employee of the State hospital--
Justice Scalia: Or a 911 operator who was an agent of... of the police.
Mr. Friedman: --A 911 operator is a direct conduit to the police, and the police are a direct conduit to the court.
And... and that addresses your hypothetical, Justice Scalia, about the... the affidavit right to the court.
The person writes an affidavit right to the court.
Under... under the theory presented by the State under the resemblance theory... let's take away the... the sworn part of the affidavit.
It's just a letter or... or a message over the Internet or a videotape.
All of those would be allowed because there's no formality, because there's no interrogation, and that's a grotesque result--
Justice Kennedy: --I'm not sure what... what sense it makes.
The woman runs out and... and says, he... he stabbed me and I'm dying, he's a murderer.
Case one, it's a... a neighbor.
Case two, it's a police officer and she sees that he's a police officer.
Why... why should there be a difference?
It doesn't make any sense to me.
Mr. Friedman: --Well, I'm... I'm not saying there necessarily should be a difference.
I think... I think in the--
Justice Kennedy: Well, I thought your test was if she knows that he's a police officer, it's testimonial.
Mr. Friedman: --We're saying that is an easy case.
That's what Professor Mosteller calls a dead bang case where it's made to a police officer.
Justice Kennedy: Well, let me put it this way.
I don't know why one case is so easier than the other.
Mr. Friedman: I think it's an easier case because the police officer is a direct conduit to the... to the machinery of... of justice.
When you're speaking to a police officer, you know you're speaking to the State.
If the Court has no further questions, I'll reserve the balance of my time.
Argument of Thomas M. Fisher
Chief Justice Roberts: Thank you, counsel.
Mr. Fisher: Mr. Chief Justice, and may it please the Court--
Amy Hammon's oral statements to Officer Mooney arose in an emergency situation very similar to a 911 call, not in a situation where a detective was attempting to subvert the judicial system by developing evidence in secret with no intention of ever letting the witness testify at trial.
Justice Scalia: She's sitting down at... at a table, as I recall it, with the... with the police officer on the other side of the table.
Mr. Fisher: She... yes.
Justice Scalia: Has a cup of coffee.
Mr. Fisher: Well, I don't know about that.
Justice Scalia: I thought there was a cup of coffee, too.
Maybe... I don't know where I got that from.
Maybe I made it up.
Mr. Fisher: --Well, what we know is that the--
Justice Scalia: It didn't seem to me a terribly emergency situation in... in that kind of a context.
Mr. Fisher: --I respectfully disagree, Your Honor.
We're talking about a woman who has... has stated that she has suffered a beating from her husband, that... a beating that may flare up at any time if the officers withdraw, and the officer needs to know what happened so that he can properly address the situation.
Justice Scalia: At the time, the officer is right there in the house.
There's certainly no emergency at the time.
Now, you could say that... that the woman is frightened about a recurrence, but if... if that's your definition of an emergency, it's going to cover an awful lot of situations.
Mr. Fisher: Well, I think it's... the... the moment to consider is not just the moment when the officers are present, but in fact, what would happen if the officers were to do nothing, which is one of the choices that, I suppose, the officers have.
They could find out what was going on and address the situation, or they could withdraw, doing nothing, and then leave Amy Hammon to her own devices in a highly explosive situation.
They... we don't know exactly what... what Officer Mooney said when he went back into the living room, but what we know is that there was no apparent interrogation of anybody.
We know that Amy Hammon at that point told him the story of the argument that had taken place and the resulting physical abuse.
Now, what we know from... from the accusation test that is put forward by... by the petitioner is that the reason that it doesn't apply apparently to all statements to... to police officers is that it must somehow take account of the coconspirator statement.
But we don't otherwise have any grounding of that test in the history of the Confrontation Clause.
The test that we are proposing, the broader test that we are proposing, the resemblance test, flows directly from the statements in Crawford suggesting that the way that we know what is testimonial and what is not is by examining the lessons of history.
What we're proposing is that in any particular context, if the statement resembles one of those historical abuses in the civil law tradition, then in that circumstance it's testimonial.
But if the--
Justice Souter: Isn't... isn't the problem, though... I mean, as Crawford said, those examples defined the core.
They were the paradigms, but they didn't purport to cover the whole ground.
And it seems to me that your argument is to turn the core into the exclusive examples, in which case the Confrontation Clause in the real world is never going to apply.
Mr. Fisher: --Your Honor, I think the important lesson from Crawford in that regard is... is the methodology, and the methodology was let's look at history.
What does history tell us the Founders were concerned about?
And the Court listed the specific examples of affidavits, depositions, pretrial hearings, and... and expanded that even to include interrogations.
And in... excuse me... particular cases coming... coming up, if there is evidence that... that the statements do correspond to historical abuses, even if those abuses were not listed in Crawford, then that would be a different situation.
That would be--
Justice Scalia: Well, I'm not sure that that was the only concern of the Founders, I mean, the... the... you know, the... the fact that... that the State could corrupt the... the statement through the interrogation.
I'm not sure that was the only concern.
I... I think the Founders believed in a judicial system, at least in criminal cases, where the person has a right to cross examine his accuser.
Whether the fact that the... I am... I'll put it this way.
I am quite sure that it would have been held a violation of the Confrontation Clause if, as the prior example I gave, someone wrote out an affidavit and sent it directly to the court, no intervening police interrogation at all, just wrote out an affidavit from... from France, mailed it to the court, and the court has this affidavit.
I am sure that would be a smack bang violation of the Confrontation Clause.
And there's none of the... the abuse that... on... on which you... you would hinge the entirety of the violation.
Mr. Fisher: --Well, except that we do know that... that affidavits, I agree, would have been prohibited, and that's one of the classic forms of testimony, indeed, that was enumerated in Crawford and that was kept out at the founding.
And that falls into a very well defined category.
Justice Kennedy: But one of the reasons for that is... let's assume you had a completely honest police officer.
You may have a motive on the part of the witness to frame the defendant.
I mean, that's another reason.
Mr. Fisher: Well, I think it ostensibly could be.
I think what we know, though, looking back at what... at the... at the Raleigh trial and at... at the... at the trials even in the colonial period, was that the Founders were concerned about abuses by the State, in... in particular, in interrogations and in eliciting these affidavits and in using pretrial testimony.
Justice Kennedy: But I'm suggesting to you that it often happens that there are false charges made that the... that the police believe to be true.
Mr. Fisher: The false charges scenario is--
Justice Kennedy: And this is fully consistent with prohibiting testimonial statements.
Mr. Fisher: --Again, I think what Crawford was talking about, in terms of trying to understand the Confrontation Clause, was not simply to hypothesize various problems that different types of evidence could present if it weren't cross examined, but instead to examine more particularly what the Founders were concerned about.
And that was not one of the... of the categories simply--
Justice Stevens: May I ask this, Mr. Fisher?
What is your answer to Justice Scalia's hypothetical, an entirely volunteered affidavit by the accuser?
Is that admissible or not?
Mr. Fisher: --I think that... well, certainly it's testimonial, and so--
Justice Stevens: So that would be prohibited by the Confrontation Clause.
Yet, that was clearly not an example that would fall within the Marian practice.
Mr. Fisher: --Well, whether it would have come in--
Justice Stevens: I mean, it doesn't resemble it is what I'm saying.
Mr. Fisher: --Whether it would have been a problem under the Marian practice I think is only part of the story.
And certainly Crawford recognized that affidavits as a category were part of the... of the tradition that led to the abuses that the Founders were concerned about.
So Marian is, again, part of the story but not necessarily the whole thing.
Now, when we articulate this resemblance--
Justice Scalia: Before you leave that, surely the affidavit isn't... isn't what's magical.
I mean, I'm going to change my hypothetical.
The person recites his accusation on a tape recorder and mails the tape to the court.
Now, are you going to say, well, it's not an affidavit?
You'd exclude that as well, wouldn't you?
Mr. Fisher: --Well, I... I don't know that I would because, again, you've got the... you've got the form that Crawford was concerned about.
The affidavit is the classic form.
Justice Scalia: That would make no sense at all.
I mean, that... that is just the worst sort of formalism.
If you do it in an affidavit, it's... it's bad, but if you put it on a tape, it's... it's good.
I... I cannot understand any reason for that.
Mr. Fisher: Well, I don't know that the analysis has to end there.
I think, for example, there were other circumstances where other types of communications were problematic.
In... in Raleigh's trial, for example, Cobham had submitted a letter, and that was recited as part of the... the concern.
Now, if the Court were to determine that a recording of that sort was similar enough, it resembled enough that sort of abuse, then yes, it could be testimonial.
Justice Stevens: Mr. Fisher, let me again be sure I understand your position.
Would the unsworn letter that Justice Scalia describes be admissible or inadmissible under your view?
Mr. Fisher: I think that there is evidence historically that a letter would be testimonial, certainly coming out of Cobham's case and... and other circumstances.
Justice Stevens: So then you don't rely on the affidavit point.
Mr. Fisher: Well, I think it's... it's a matter of what... what is covered, what is mentioned in history.
Affidavit is one of those... those categories.
Letters, in particular, in Raleigh's trial was another area that may have been problematic.
And I think--
Justice Souter: If that's your criterion, are you going to draw the distinction between the letter and the tape recording?
Mr. Fisher: --Well, I think that that is the... whether we have the resemblance test doesn't require us to answer that question because I think that the examination the Court would undertake would again--
Justice Souter: Well, let's answer it.
Is... is the tape recording like the letter so that it... it's inadmissible?
Mr. Fisher: --I think it's... I think it is very similar to the letter and... and could well be inadmissible, but I don't know that it's... if the Court adheres to the test that it set forth in Crawford, that it's looking for forms of testimony that were prohibited at common law, certainly that would not have been one of them.
Chief Justice Roberts: A videotape... a videotape of a crime scene is admissible.
Mr. Fisher: I think that's... that's right.
Now, if it's... if you have a videotape of someone that... that's responding to an interrogation, that's an entirely different thing.
Chief Justice Roberts: Yes.
Mr. Fisher: But a videotape of a crime scene again would be... would be not testimonial.
Chief Justice Roberts: But a tape recording by the same person who videotaped the crime scene, describing what he saw, you agree would be excluded.
Mr. Fisher: I think that there's a high chance that could be... be excluded.
Justice Breyer: So what's the test?
Mr. Fisher: It's the resemblance test, and the question--
Justice Breyer: Resemblance to?
Mr. Fisher: --To the historical abuses that the Founders were trying to address.
Justice Breyer: Which were?
Mr. Fisher: --Well, which were in particular, we know, affidavits.
We also know something about letters, and the question with the tape recording is, is it enough like, does it resemble those enough?
Justice Ginsburg: Do you accept the Government's--
Justice Stevens: I think the problem with the examples is that none of these are abuses.
As I see it, the examples of the tape recording mailed in and the volunteer statement, I don't see how you can call those abuses.
Mr. Fisher: Well, I think the abuse comes not simply in how they were created, but... but then in how they were later used.
And... and again, we're talking about trying to... to craft a rule in part that has some bright lines to it based on... on just what was... what form were not--
Justice Ginsburg: --Why isn't the... the bright line that the Government asserts that this is a crime made in an urgent situation, when one doesn't... the declarant doesn't think rationally will this be used eventually in a trial, where the declarant wants to stop an imminent threat?
Mr. Fisher: --I certainly think that that follows from the... the overall test we propose.
Justice Ginsburg: But that's a different test than the resemblance test that you're proposing.
Mr. Fisher: Our position is it's a corollary to it.
And certainly it's a narrower test and applies, I think, here and in... in both cases today, and it provides the opportunity to resolve both cases on the notion that when the officers were at the scene, they were in no way behaving like inquisitors.
They showed up.
They were... they could... they were in the middle of... of an abusive situation that could explode at any time, and they needed to know what... what was going on in order to diffuse the situation.
So this case could be resolved on that... on a much narrower ground.
It's... it's important here also to... to recognize that what the... what the prosecution did has no... no similarity to what would happen at the common law.
We have here the government issuing a subpoena to Amy Hammon to come and testify and, obviously, showing that they would have preferred the live testimony in this case.
Justice Ginsburg: Was there... was there any showing at all of whether they made the police... or the prosecutor made any effort to enforce the subpoena?
Mr. Fisher: There was no such effort, Your Honor.
But, well, here, if I may be permitted to go beyond the record just a little bit, what we... what we do know is that the case was continued one time because Amy Hammon did not show up in response to a subpoena, and that the second time, the... the trial proceeded.
But there was no effort to send someone out to... to enforce it or to bring any sort of contempt sanction.
Justice Scalia: Well, let's assume your... you have here a woman who's sitting down in the kitchen with the police officer, talks to the police officer, and then signs an affidavit.
Did she sign the affidavit at that time?
Mr. Fisher: That's right, yes.
Justice Scalia: And that affidavit was not admissible because it's an affidavit.
Mr. Fisher: Correct.
Justice Scalia: But the police officer who testified to what she said and what he wrote down in the affidavit that she signed, that does get in.
Mr. Fisher: Correct.
Justice Scalia: I... I can't see why that makes any sense at all.
I mean, she... she was either testifying when she spoke and then signed the affidavit, as evidence of her testimony, or... or else she wasn't testifying, in which case both the affidavit and the oral statement should be in.
I can't... I can't see drawing the line between those two.
It really seems very strange to me.
Mr. Fisher: Well, I think whether you look at it from her perspective or from the officer's perspective, that something did change in the moment between the oral statement and the affidavit.
If you look at it from... from the officer's perspective, once Amy Hammon disclosed to him what had happened and... and gave him information that he needed to handle the situation, then he could go about handling the situation.
He didn't need the affidavit to do that.
Once he turned to get the affidavit, he... he was transitioning to... less from an emergency mode and more to an evidence gathering mode.
If you're... if you are looking at it from the standpoint of Amy Hammon, then at that point, when... when Officer Mooney is... is in the house and has her husband, you know, in another room and she's trying to just describe what's going on so that she can be protected, that's a far different mind set.
Chief Justice Roberts: Well, but it's a... it's a classic mixed motive case.
We don't know when the officer is sitting down with her and asking the questions, whether his primary motive is to make sure the guy doesn't come back or if his primary motive is to help make the case against the guy.
Mr. Fisher: Well, I think it's reasonable to assume that officers, faced with an emergency situation, are primarily going to be working for... from a concern of safety, for their own and for others.
And so even if it is a mixed motive, I think that the point is that particular circumstance, it's reasonable to infer where there's an emergency... ongoing emergency, an ongoing immediate safety concern, that safety and security are going to be the primary motive.
Justice Scalia: Why does his motive matter?
I mean, the... the issue is whether she is testifying, whether she is a witness, and I don't see how that changes when she tells him these things orally and when she signs the affidavit afterwards.
It seems to me she's testifying as to what events had occurred.
Mr. Fisher: Well, let me be clear that we're not suggesting a subjective inquiry into the officer's motive, but what we are saying is that whether a statement is testimonial depends on whether the government is... is purely collecting evidence, making someone undergo an interrogation, for example, or whether they are performing tasks that really were not part of... of any type of police function at the founding, which is sort of a community caretaking, public safety function, so that by definition in eliciting statements concerning the immediate safety issue, the police officer could not have been engaged in the kinds of abuses that gave rise--
Justice Breyer: All right.
This is helpful, very helpful to me, but I'm trying to see what you're driving at.
I'm imagining the woman saying, he's hitting me, he's just hit me.
She's in tears.
That's excited utterance.
Then suddenly the officer, 5 minutes later, says I've heard what you said.
Let's reduce it to writing.
Here's the formal affidavit, et cetera, that is... but to prevent Mr. Friedman's problem, we're going to have to say as to the second, that is even if you don't have the formality, you see, everything is the same, but not the formality.
Now, how do we do that?
Mr. Fisher: --I'm not sure if I'm following.
Justice Breyer: I'm making the distinction you're making between she's in tears, excited utterance or res gestae, around there, just what you were talking about.
Now think of the second affidavit... when he reduces it to writing.
That's different, calmer, clearly motive to testify, et cetera.
But now what Mr. Friedman pointed out is if we make it turn solely on the formality, the piece of paper, the stamp, et cetera, they'll just avoid that.
So we're going to have to sweep into the second the circumstance where everything is the same but the formality, and that's where I have the difficulty.
Mr. Fisher: --Well, again, the... the difficult task of understanding the Confrontation Clause is to figure out what limits there might be, and... and in Crawford, the methodology was what does history tell us the Framers were concerned about.
And certainly the formal affidavit was something that they were very concerned about.
The less formal forms they were not.
And certainly when it comes to something as... as recent, you know, relatively speaking, as... as the community caretaking function of the police, that was in no way part of... of the abuses that the Framers were concerned about.
And so I think even if the Court were to limit its decision to that part of the test, resolving the other instances, according to the resemblance test or... or trying to figure out where to draw that... you know, that line, could come later, consistent with its decision in this case.
Justice Souter: But your answer, I take it, assumes that the Framers had no concern with the capacity of the court to test the... the validity or the truth of the statement.
Mr. Fisher: Well, I'm not entirely sure if that's the case.
I mean, I... of course, they were operating in a... in a circumstance where... where hearsay rules were... were part of the trial process.
Certainly also, to the extent that... that a particular procedure is... is outrageous, the... a due process concern might arise, but--
Justice Souter: Well, but... no.
But I'm... I'm not talking about outrageous circumstances in which the... the statement was taken.
I'm talking about the capacity of the court, by whatever means, to test the truth of that statement once it is placed before the court.
And I understood your argument to Justice Breyer to assume that that testing function was not within the contemplation of the Framers.
Mr. Fisher: --I think it was with respect to... to the abuses that... testimony elicited through the abuses that gave rise to the clause, the... the common... or I'm sorry... the civil law type abuses.
They did want to test that, but the concern--
Justice Souter: So that your... your... you would then say they want a... they want to test certain... in certain cases where they think there may have been an abuse in the elicitation of the statement, but if there is... there is no reason to suspect that the statement was taken under untoward circumstances, they were not concerned to test its validity.
Mr. Fisher: --I think that... that that's largely accurate, but they were dealing with, I think, a rather set form.
Justice Souter: But is that your position?
Mr. Fisher: Well, yes, but... but if I may add a clarification, which is to say, the reason I think that we could circumscribe affidavits, regardless of whether the elicitation abuses are present, is simply for ease of administration, that abuses known to the Framers would have been arising in the circumstance where there would have been those abuses, and... and as a--
Justice Souter: Don't... don't you think the Framers were aware of the fact that although there were law enforcement abuses, Raleigh's case and so on, there were also abuses every day of the week on the part of people who gave false testimony because they had grudges against the defendant?
Do you think that was totally out of the minds of the Framers so as to support the distinction that... that as a general rule you were suggesting?
Mr. Fisher: --We don't know exactly all of the details that would have... that they were contemplating.
Justice Souter: But why would... why would we impute that... that unconcern to the Framers about the... the need to test statements which may very well have... have been given because of envy, grudge, and so on?
Mr. Fisher: Because of... of what we do know and what Crawford said that we do know, which is that we know that they were responding to things like Raleigh's trial and to Stamp Act, you know, enforcement, other--
Justice Souter: Well, but doesn't... doesn't that get us back to the fact that those examples were given in Crawford as paradigm examples, if, you know, those were... I think the word poor was used.
But... but Crawford was not limited to that, and if it's not limited to that, why, in effect, does the... does the... should we conclude that the concern of the clause stops short of the self interested witness even though he didn't make an affidavit?
Mr. Fisher: --Again, if I may be permitted to finish.
The methodology... the methodology of Crawford is to look for known circumstances of abuse, about which the Framers were concerned, and we don't have that sort of historical evidence more generally.
Argument of Irving L. Gornstein
Chief Justice Roberts: Thank you, counsel.
Mr. Gornstein: Mr. Chief Justice, and may it please the Court--
We are asking the Court to apply the same standard to statements made to officers at the scene as to statements made during a 911 call.
If the statement is made in response to police questions that are reasonably necessary to determine whether an emergency exists--
Justice Stevens: May I ask, under your view, was the affidavit admissible?
Mr. Gornstein: --The affidavit is not admissible.
Justice Stevens: Why not?
Mr. Gornstein: The affidavit is... is not admissible because, by that point, the officer had the information that he needed to resolve the emergency, and what he was soliciting at that point--
Justice Stevens: I would suggest the reason it was not admissible is it's very clear that the affidavit is the testimonial statement by a witness that the defendant has a right to confront.
The constitutional right is the right to confront the witnesses against him.
Mr. Gornstein: --I was just getting to that, Justice Stevens--
Justice Stevens: Oh.
Mr. Gornstein: --that the... the emergency was resolved, and at that point, he was--
Justice Stevens: But you say if the officer independently repeats what is said in the affidavit, then he's the witness against rather than the--
Mr. Gornstein: --No, not... no.
He's... he's not... if he was repeating what was said in the affidavit, that's a different point.
He's repeating the statement that was made before the affidavit was given.
That was at a point at which the... there was still an immediate danger and that he was asking a question that was reasonably necessary to determine whether that danger existed and, if so, how to resolve it.
Justice Scalia: What was the immediate danger?
Mr. Gornstein: When... the immediate danger was--
Justice Scalia: I mean, there's the policeman in the room across the kitchen table from... from the woman.
Mr. Gornstein: --The--
Justice Scalia: He's not on the end of a phone line.
He's in the room across the kitchen table.
Mr. Gornstein: --That's correct.
And... and the problem here is what the danger was what would happen if the officers left.
When... when the officer came in and saw a frightened Ms. Hammon, he saw wreckage on the floor, he had reason to be concerned that there was a very recent attack on her and that if he left the scene, that attack would be renewed.
Asking Ms. Hammon what happened was reasonably necessary to determine whether that emergency existed and, if so, how to resolve it.
Now, once he had that information, he had what he needed to resolve the emergency, and at that--
Justice Alito: In a situation like that, what was needed to resolve the situation, if he believed what Mrs. Hammon said, was to arrest Mr. Hammon.
Mr. Gornstein: --That's correct.
Justice Alito: So he could... you think he could gather as much evidence as was necessary to arrest Mr. Hammon.
Mr. Gornstein: I do not.
Justice Alito: Why... why not?
Why doesn't that follow?
Mr. Gornstein: --Well, at some point, what... what turns into emergency resolution moves over into interrogation, and once you reach interrogation, then you have reached the core of what Crawford talks about--
Justice Ginsburg: How do we know when that line is crossed?
You said reasonably necessary to protect safety.
Interrogation is not good.
But how... how does one tell when one stops and the other starts?
Mr. Gornstein: --I... I think this is going to be a line drawing question, but when you have a situation like this one where you have an officer who's just on the scene in the immediate wake of a... of a domestic dispute, he asks a single question, what happened, in... in circumstances in which he needed to know the answer to that question to make sure he could leave and leave her there safely.
That's not interrogation.
If he sat around for a half hour with a back and forth and give and take and trying to press and get to the situation in that kind of back and forth, that would be interrogation colloquially.
And it's... it's that kind of line that the Court is going to need to draw.
Justice Breyer: Why?
Because he might be interrogating with no idea at all primarily in his mind of later court appearance.
He wants to find out if there are guns in the house.
He wants to find out if there are other people in the house.
He wants to find out if somebody is being held captive.
He wants to find out if these are the same people who did some other crimes immediately taking place, what's the relationship.
There are all kinds of interrogation.
You're saying that all that interrogation by a policeman can't come in under the Confrontation Clause.
Mr. Gornstein: The Confrontation Clause bars under Crawford police interrogation.
And the... the situation is one in which we are not going to be able to examine the individual motives of officers in every case and individual declarants in every case.
What we are looking for is a categorical rule that is going to capture the likely motivations in both cases, and when you have an emergency question, you're likely dealing with the situation with... both from the officer's side and from the declarant's side, you're going to be having people attempting to resolve an immediate danger of harm.
And you get--
Justice Scalia: That... that assumes... this... your... your focus on whether the... you know, the... it's an interrogation or not... it... it assumes that the only focus of the Confrontation Clause is on prosecutorial abuse somehow.
And... and as... as Justice Souter was suggesting, I don't think that was the exclusive--
Mr. Gornstein: --No, we don't... we don't think that's the exclusive focus either, and we think interrogation can capture both, too, that when you get to the point of interrogation, what's happening with the witness is getting an increasing understanding that what this is being sought for is to build a case.
I think the biggest problem with the... the two rules that are proposed on the other side, that is, the accusation rule and the reasonable anticipation rule, is it captures within a... these emergency statements that really don't have... fall within any ordinary understanding of what testimony is.
If I go to my house and it's late at night, I hear suspicious noises, and I see somebody and get a partial description of him, and I call 911, I'm seeking to avert an immediate danger to myself.
I don't think under any stretch of the imagination anybody would refer to that as testimony.
Yet, under his rule--
Chief Justice Roberts: Of course, the Sixth Amendment doesn't use the word testimony, does it?
Mr. Gornstein: --No, it does not.
But what the Court said in Crawford was that the term witness was referring to... that people can make testimonial statements--
Chief Justice Roberts: And maybe that... and maybe you're not a witness when you make the call, but when that same call is admitted into court, then... then it strikes me that you are a witness.
Mr. Gornstein: --But... but that's not the definition of witness that... that Crawford adopted.
That would be--
Justice Scalia: --As it happens in the other... in the companion case today, the prosecution itself, in its summation to the jury, referred to the 911 call and said, you have heard the testimony of... of the victim and referred to it as testimony.
Mr. Gornstein: --Justice Scalia, if he--
Justice Scalia: I mean, it's not beyond the pale to consider this testimony.
Mr. Gornstein: --if... if he... he had made a statement about a coconspirator's statement during the course of the conspiracy and he had said, we have here the testimony of the... his coconspirator, that would not make it testimony.
And if the... the 911 call--
Justice Scalia: No, but it would prove that... that it's not beyond the pale to call it testimony.
Mr. Gornstein: --Well, it just does not make it testimony.
And if it... the prosecutor in the 911 case had said, I don't have her testimony, I have something better, it's a 911 call--
Justice Stevens: --Mr. Gornstein?
Mr. Gornstein: --of a cry for help, that wouldn't make it not testimony.
And I don't think--
Justice Stevens: Mr. Gornstein, is this a fair summary of your position, if I may?
We're really asking who's the witness that's being testified against, and when it's the affidavit, it's clearly the woman that's a witness there where it's inadmissible.
But your view, as I understand you, is when it's the officer who is the witness, he's subject to cross examination, and as long as the emergency continues and he's describing what happened during the emergency, he's still the witness.
That's what you're saying, I think.
Mr. Gornstein: --He's... he's still a--
Justice Stevens: He's still the witness we're concerned about.
Mr. Gornstein: --He is the witness--
Justice Stevens: Therefore, he's subject to cross examination.
Mr. Gornstein: --He's the... he's the... he is subject to cross examination.
Justice Stevens: And so during the emergency period, he can repeat what she said.
Mr. Gornstein: But I... what I'm saying is that she's not a witness during the emergency period itself.
Justice Stevens: I understand what you're saying.
Mr. Gornstein: It has to be both.
Justice Stevens: That we focus not on whether it's testimony but whether he's the witness at the critical time or whether she's the witness.
Mr. Gornstein: I... I think that that's one way of looking at it, Justice Stevens, but--
Chief Justice Roberts: That's not the way the Court looked at it in Crawford.
Mr. Gornstein: --No.
I... I think that what you would look to see is if, at the relevant time, that... that the declarant was acting as a witness.
And at the relevant time, when somebody is answering a question to avert an immediate danger, they're not acting as a witness.
They're not making a solemn declaration for the purpose of proving facts to support a prosecution, and so they're not acting as a witness in those circumstances.
And... and it's only later, when the officer turns to soliciting from Ms. Hammon an affidavit, that what he's soliciting at that point is a solemn declaration made for the purpose of proving facts to support a prosecution.
Now, that's testimony.
Justice Scalia: I'm not sure that the two were... were as separated as you... as you claim.
I... I took it that the affidavit... while he was getting the oral responses, he was writing down what... what would be put in the affidavit.
Mr. Gornstein: I don't think that there's any evidence in the record to support that, Justice Scalia.
That... that... what happened is that he took... that he listened to her oral statement and then he proceeded to ask for... her for an affidavit, after he had the information that he needed to resolve the emergency, was to figure out how he was going to protect this person from an immediate renewed attack if he left the scene.
Justice Stevens: But under your test, the whole question is whether the emergency continued at the time the witness' words are being repeated.
Mr. Gornstein: It's not the whole question because if the statement... the question has nothing to do with and the answer had nothing to do with the emergency.
It does not come in under the rule we're talking about.
Justice Stevens: No, I'm not arguing that.
I'm trying to figure out... I think I have a little different angle on it than you actually said in your brief or actually in the text of Crawford.
Of course, Crawford wasn't confronting this problem.
It described everything as testimonial, but the real question is who's the witness under the text of the Constitution.
Mr. Gornstein: Well, Justice Stevens, I'm--
Justice Stevens: And I think your argument is--
Mr. Gornstein: --I'm happy to have your approach if it... if it leads to my approach to this case.
Justice Stevens: --I think I'm trying to help you.
I know it didn't start out that way, but it seems to me I'm helping your side of it.
Rebuttal of Richard D. Friedman
Chief Justice Roberts: Thank you, Mr. Gornstein.
Mr. Friedman, you have 4 minutes remaining.
Mr. Friedman: I... I think that whenever there is a... an out of court accusation repeated, there is a witness in court, but that is not the witness that... or that doesn't satisfy the confrontation right because as the... the--
Justice Stevens: No, but you would agree that the officer could testify to some of the things that happened during the emergency, and he's a witness to that extent.
Mr. Friedman: --Yes, absolutely, the officer was--
Justice Stevens: And the question is whether he can cover this as well.
Mr. Friedman: --That's... that, of course, is the... that... that's the question.
But... but she was acting as a... a witness when... when she made the accusation to... to the officer, and characterizing it as an emergency I don't think helps anything in... in this case.
The... the fact is that if we extend the emergency this far shows... well, it shows just how capable of expansion the... the theory is because there is an officer with her and there is an officer with... with him.
So the... the only question is should the officers leave.
That means that whenever there's... there's a victim potentially at large there, the confrontation right wouldn't... wouldn't apply.
The... the whole emergency doctrine really distorts incentives because a... a police officer who has a... a dual motive of creating... of protecting people, protecting the safety of... of people and gathering evidence... and I think it's clear that they do... under an emergency doctrine, would have an incentive to preserve the emergency or the appearance of emergency for... for as long as... for as long as possible.
And I... I think the... the State encourages people to call, which of course they should do, but in part the reason why people are encouraged to call is to... is to create... is to pass on... is to pass on evidence.
So I don't think that even if... even to the extent that the call is a... a cry for help, well, the help is... is seeking invitation of the... of the legal system.
In the Davis case, of course, it was an arrest.
In... in this case, the... the statement was not a cry for help.
It was in response to the second inquiry by the police officer.
The police officer was... was pressing.
And... and I... I think the... the emergency doctrine simply... simply can't... if... if there were an emergency doctrine, I think it's just badly founded and couldn't apply here.
If it pleases the Court, I believe Crawford has brought us to a remarkable crossroads.
If the accusation in this case is allowed to secure a conviction without the State providing an opportunity for confrontation, then the Confrontation Clause will be little more than a charade, easily abated by State officers gathering evidence.
But if the Court proclaims that a conviction cannot be based on an accusation made privately to a known police officer, then it will take a long step to ensure that the confrontation right remains robust, as the Framers intended for centuries to come.
Justice Breyer: What about the resemblance idea to get around your problem?
Of course, it's not purely formal.
It's purely formal, plus those things that resemble what's purely formal.
Mr. Friedman: I'm not sure I quite understand.
Justice Breyer: It's purely the formal criteria, plus anything that's the same.
Now, same is vague, but it's no vaguer than a lot of other things floating around here today.
Mr. Friedman: Well--
Justice Breyer: So what do you think of that?
Mr. Friedman: --I... I... not much, Your Honor.
I... I don't think an accusation to a known law enforcement officer is awfully vague.
Any legal term will have some... some vagueness around the edges, but I don't think there's much.
Resemblance is awfully vague.
I think what happened here resembled the inquisitorial practices in the key... in the key... in a key respect.
And I don't think the test Your Honor is proposing handles the message over the Internet or... or a letter, the... the tape made at the initiative of the... of the witness.
I think it... it utterly fails to get that because the... the prosecutors aren't involved.
But clearly the Confrontation Clause was written against the backdrop of private prosecution, the system of private prosecution.
So it has to fit those.
I... I think that this case can be resolved on those very narrow grounds without trying to establish the broad, general meaning of the Confrontation Clause.
I'm... I'm hoping that the Court is building a framework for hundreds of years to... to come, and I think it's more important that it be built right and that it be built quickly.
And so I think an important first step is to say an accusation to a known police officer, whatever else is testimonial, that clearly must be.
If there are no further questions, I'm pleased to submit the case.
Chief Justice Roberts: Thank you, counsel.
The case is submitted.
Argument of Speaker
Mr. Speaker: Justice Scalia has the announcement in 05-5224 Davis v. Washington, and 05-5705, Hammon v. Indiana.
Argument of Justice Scalia
Mr. Scalia: It’s me again.
These cases are here on writs of certiorari to the Supreme Court of Washington and the Supreme Court of Indiana, respectively.
The question before us in both cases is whether the admission of out-of-court statements violated the Sixth Amendment’s Confrontation Clause, which states, “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him,”.
The facts of each case described in brief are as follows.
In the first of them, Davis, a 911 operator received a frantic call from Michelle McCottry, who was involved in an ongoing domestic disturbance with Davis, her former boyfriend.
The operator asked McCottry a number of questions to determine what was happening and some questions about Davis to determine whether the dispatched police officers would be dealing with a dangerous felon.
At some point during the 911 call, Davis apparently left McCottry’s home.
Police arrived on the scene within four minutes of the call.
The State of Washington charged Davis with felony violation of a domestic no-contact order.
At trial, only the police who arrived on the scene after Davis had left testified; McCottry herself did not.
But the prosecutor offered a recording of the 911 call, which identified Davis as the assailant and which was admitted over Davis’s Confrontation Clause objection.
The jury convicted him, the Washington Court of Appeals affirmed, as did the Supreme Court of Washington, which held that McCottry’s statements were nontestimonial.
In the other case, Hammon, a domestic disturbance call led police to the home of Hershel and Amy Hammon.
They found Amy sitting on the front porch.
She told them that nothing was wrong, but they asked for and received Amy’s permission to enter the home.
Inside, they observed a living room showing signs of an altercation, including a broken heater.
Hershel, Amy’s husband, was sitting alone in the kitchen.
The officers asked him what had happened, he told them that he and his wife had had a disagreement, but that it never became physical.
At some point, Amy came back inside and went into the living room.
One of the officers stayed with Hershel in the kitchen while the other went to ask Amy about the night’s events once more.
This time, she described the altercation in some detail, saying that it began over a dispute about their daughter, that it evolved from being verbal to being physical, that Hershel started breaking things, that he threw her down, shoved her and punched her.
After hearing her story, the officer asked her to write it out on a battery affidavit, a regular form that this police department had, and to sign that affidavit, which she did.
The State of Indiana charged Hershel with domestic battery.
Amy did not appear at the subsequent trial.
Although Hershel objected on Confrontation Clause grounds, Amy’s statements about the events in question were admitted, both through the testimony of the officer who had questioned her and through the battery affidavit that she had signed.
Hershel was convicted.
The Indiana Court of Appeals affirmed, as did the Supreme Court of Indiana.
It concluded that although the affidavit was testimonial and had been wrongly admitted, it was harmless beyond a reasonable doubt.
The officer’s testimony about Amy’s oral statements to him, on the other hand, the Indiana Supreme Court held were not testimonial.
We granted certiorari in both cases, and in an opinion filed today with the Clerk, we affirm the judgment of the Supreme Court of Washington in Davis and reverse the judgment of the Supreme Court of Indiana in Hammon.
In a 2004 case called Crawford versus Washington, we held that the Confrontation Clause bars the, “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination,” which, of course, did not exist in either of these cases.
We hold today, as we implied in Crawford, that the Confrontation Clause extends only to statements that are testimonial.
That is clear from the text of the Clause, which requires confrontation of witnesses.
“Witnesses” are those who bear testimony.
None of the cases exemplifying the confrontation requirement at the time of the framing applied to nontestimonial hearsay, such as a victim’s cries for help.
To be sure, most of those early cases involved testimonial statements of the most formal sort, such as sworn testimony in prior judicial proceedings or formal dispositions under oath; but not all of them did.
We do not think it conceivable that the Clause’s protections can be evaded by having a policeman recite a defendant’s unsworn testimony rather than the policeman’s having the declarant sign a deposition to the same substantive effect.
In Davis, therefore, we must ask whether objectively considered the interrogation that took place in the course of the 911 call produced testimonial statements.
We conclude that it did not.
911 calls are ordinarily designed to describe current circumstances that require immediate police assistance.
This case is no different.
McCottry was trying to obtain help to meet an ongoing emergency; she was not acting as a witness.
She was speaking in the present tense about events as they were actually happening, not reporting on events that were done.
Objectively viewed, the primary purpose of the 911 operator’s interrogation was to enable police assistance to meet the ongoing emergency.
In Hammon, by contrast, the statements were testimonial.
In relevant respects, they were not much different from those that we held to be testimonial in Crawford.
There was no ongoing emergency.
The police quite properly conducted an investigation into whether, as they suspected, past events of a criminal nature had occurred.
Such an investigation required them to ask Amy to tell them what had happened so that they could decide whether to arrest Hershel, not to end an emergency that was in progress.
Objectively viewed, the primary, if not the sole, purpose of the interrogation in that case was to investigate a possible crime.
From the perspective of the Sixth Amendment’s text again, witnesses in court narrate and attest to the truth of past events, which is precisely what Amy Hammon did.
To summarize our holdings in these cases, 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.
Finally, we again emphasize, as we did in Crawford, we will note that both of the abused spouses in these cases did not testify, which is not an unusual phenomenon.
For that reason, we again emphasize, as we did in Crawford, that while the prosecution may not deprive a defendant of the right to confrontation, a defendant may forfeit that right; for example, by procuring or coercing the absence of a witness.
The doctrine of forfeiture by wrongdoing is an established equitable principle necessary to allow courts to protect the integrity of their proceedings.
On remand, the Indiana Courts may, if they are asked, determine whether a claim of forfeiture is properly raised and, if so, whether it is meritorious.
The judgment of the Supreme Court of Washington is affirmed, the judgment of the Supreme Court of Indiana is reversed, and the latter case is remanded for proceeding not inconsistent with this opinion.
Justice Thomas has filed an opinion concurring in the judgment in Davis and dissenting in Hammon.