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A Supreme Court Majority Admits 911 Calls Into Evidence, But Justice Thomas Seeks More Protection for Domestic Violence Victims: Part One

Tuesday, Jun. 20, 2006

This is Part One in a two-part series on these two end-of-Term cases. - Ed.

Yesterday, the Supreme Court issued a decision resolving two companion cases, Davis v. Washington and Hammon v. Indiana, relating to the constitutionality of admitting certain evidence in criminal cases. The decision was 8-1, with Justice Thomas concurring in the judgment in part, and dissenting in part.

In the first case, the Court affirmed as constitutional the use of an accuser's 911-call recordings against the defendant in a criminal case, even when the accuser declines to testify or cannot be located, and thus cannot be cross-examined.

But in the second case, the 8-1 majority held unconstitutional the use of on-the-scene affidavits gathered by police, when their purpose is to establish or prove events for a later criminal prosecution.

The Case's Importance: A Key Ruling for Domestic Violence Victims

This decision may be of particular importance in domestic violence cases like the two that were before the Court here. Reportedly, domestic violence victims often refuse to testify at trial for fear that the original perpetrator may harm them again, in retaliation for their testimony. And that creates a very ugly dynamic: The more threatening and violent the defendant is, the less likely the victim may be to risk his wrath by testifying against him - and the more likely she'll be a no-show when subpoenaed. A defendant who makes threats against a woman's children, in particular, may easily coerce her refusal to testify.

Ironically, given the consequences for domestic violence victims, former women's rights advocate Justice Ruth Bader Ginsburg was among those who joined the majority in leaving one victim out in the cold, while protecting the other. In contrast, Justice Clarence Thomas - not considered a feminist by a long shot -- would have protected both women, as he made clear in his dissent.

While domestic violence victims may be especially benefited by the 911-call ruling, the ruling is applicable much more generally. This ruling should make prosecutors' lives easier in any case where intimidated and frightened witnesses turn out to be no-shows for trial despite subpoenas, or cannot be located because they have gone into hiding.

The Confrontation Clause: The Right of the Accused to Have Prosecution Witnesses Appear in Court To Testify

The Constitution's Sixth Amendment recognizes a number of rights of the accused. At issue in yesterday's decision was its guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."

This clause - called the Confrontation Clause - serves a number of values. Like the evidence rule barring hearsay, the Confrontation Clause ensures that certain out-of-court witness statements that are not susceptible to cross-examination cannot form the basis of a conviction. In our system, the ability to cross-examine witnesses - a process designed to test their truth -- is part of what's deemed necessary for a fair trial.

Also, in a more visceral sense, the Clause typically forces a testifying witness to look into the eyes of the person whom his or her testimony may send to jail. Exceptions are rare, and require strong justification: One was recognized by the Supreme Court in 1990, in Maryland v. Craig. There, the Court allowed a child who was alleged to be an abuse victim to testify via a one-way television - so the defendant could see the child, but the child could not see the defendant - based on the trial court's finding that two-way television would traumatize the child. And even that was a 5-4 decision - showing how seriously the Court takes the Confrontation Clause's protections.

(If a particular statement is not covered by the Confrontation Clause, separate rules against the admission of hearsay may still apply. But these rules are not constitutionally based, and thus are subject to alteration. Moreover, hearsay rules have many exceptions - among them, an exception for "excited utterances" that would cover virtually all 911 calls, as well as many on-the-scene statements to police. Thus, there is good reason for defendants to invoke the Confrontation Clause, rather than simply relying on the protection of hearsay rules.)

Supreme Court Doctrine: Restricting the Confrontation Clause to "Testimonial" Statements

Significantly, the Confrontation Clause requires that a defendant be confronted, in particular, with "witnesses." Based on this reference to "witnesses," as well as consultation of the relevant historical sources, the Court has interpreted the Confrontation Clause to bar only the "admission of testimonial statements."

So which statements are "testimonial" and which are not?

Here's the Court's current guidance on the issue, from yesterday's decision:

A statement is "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."

Conversely, a statement is "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."

The Court's language, then, puts the focus directly on the police: It is the police officers' primary purpose in obtaining statements that counts. Granted, the Court looks to the circumstances to figure out what that purpose was, rather than just taking the officers' word for it. But in the end, it's the officers' primary purpose that the Court is trying to discern.

Given that these are criminal cases, this laser-like focus on the police is the right one. Whereas a civil plaintiff may forfeit her case if she fails to show up to testify, the same is not true for an accuser in a criminal case. After all, a criminal case is brought on behalf of the state, as represented by police and prosecutors, not the victim. And a criminal trial is a search for truth -- with one of its goals to protect the community, as well as the particular accuser.

The search-for-truth idea behind the criminal trial argues for examining evidence from the accuser that comes up naturally, such as through a 911 call -- even if she is a no-show at trial. But it does not argue for allowing police to game the system by getting statements from a victim they suspect will be a no-show, so that later, at trial, they can present what is, in effect, testimony that cannot be cross-examined.

Applying the "Testimonial" Evidence Requirement in the 911-Call Case

Here's how the Court applied the test in yesterday's decision:

In Davis, the 911-call case, the Court reasoned that a 911 operator is hardly an interrogator - and thus the recording was not "testimonial." And, rather than trying to collect evidence to prove what happened in the past, the operator is trying to figure out how police can best intervene in an ongoing emergency.

The Court acknowledged that a 911 call may, at times, evolve into an interrogation about past events. But it also held that that was not the case with respect to the relevant part of the call at issue.

And it's quite clear from the transcript sections included in the decision why the Court was confident the relevant part of the 911 call --- where victim Michelle McCottry identified her assailant - was made in the midst of an emergency. That part came during the following excerpted sequence:

"911 Operator: What's going on?

"[McCottry]: He's here jumpin' on me again.

* * *

"911 Operator: Are there any weapons?

"[McCottry]: No. He's usin' his fists.

* * *

"911 Operator: Listen to me carefully. Do you know his last name?

"[McCottry]: It's Davis.

"911 Operator: Davis? Okay, what's his first name?

"[McCottry]: Adrian.

* * *

"911 Operator: Okay. What's his middle initial?

"[McCottry]: Martell. He's runnin' now."

Clearly, the assailant went from fight to flight as the call was occurring. McCottry's statements were "nontestimonial," under the Court's test, since the primary purpose of the 911 Operator's questions were to enable police assistance to meet an ongoing emergency.

In Part Two of this series I will discuss how in Hammon, the companion case to Davis, the Court reached the opposite result in holding that the accuser's statements were, indeed, testimonial.

I will also discuss how, in Hammon, Justice Thomas, in his lone dissent, seeks to provide extra protection to victims of domestic violence. In doing so, he provides strong evidence, contrary to widespread belief, that he is able to look at the world from women's perspective.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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