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A Supreme Court Majority Rejects Evidence of On-The-Scene Accuser Statements, But Justice Thomas Seeks More Protection for Domestic Violence Victims: Part Two

Friday, Jun. 23, 2006

This is Part Two in a two-part series on these two end-of-Term cases. Part One appeared earlier on this site. - Ed.

On Monday, June 19, the Supreme Court issued a decision resolving two companion cases, Davis v. Washington and Hammon v. Indiana. Both were domestic violence case. And both asked the Court to decide whether it is constitutional for a court, in a criminal trial, to admit the out-of-court-statements of accusers who do not testify, and thus cannot be cross-examined. (In one case, the accuser was subpoenaed but did not appear; in the other, the accuser could not be located at the time of trial.)

In Part One of this series of columns, I focused on the first case, Davis v. Washington. There, the Court unanimously affirmed as constitutional the use of an accuser's out-of-court 911-call recordings against the defendant in a criminal case.

In this column, Part Two in the series, I'll focus on the second case, Hammon v. Indiana. There, an 8-1 majority - with Justice Clarence Thomas dissenting -- held unconstitutional the use of on-the-scene accuser statements gathered by police, when the primary purpose of taking the statements is to establish or prove events for a later criminal prosecution.

Justice Thomas would have allowed these affidavits to be used - and he criticized the eight-Justice majority for drawing an untenable distinction between such statements and the 911 call tapes it had deemed admissible in Davis.

Defining What Statements Are "Testimonial" and Thus Within the Confrontation Clause

Before getting into the facts of Hammon, some background is necessary. The relevant constitutional provision here is the Sixth Amendment's Confrontation Clause - which gives a criminal defendant, among other rights, the right to confront the witnesses against him. The Supreme Court has interpreted the Clause to apply only to "testimonial" evidence -- in other words, the defendant only has the right to confront and cross-examine an accuser on her "testimonial" statements. So the key issues for the Court in both cases were how to define "testimonial" in this context, and, in each case, whether the evidence at issue was "testimonial" according to that definition.

Here's the definition the Court, through an 8-1 vote, settled on:

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." Such statements would be admissible against a criminal defendant even if the accuser does not testify in court.

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." Such testimonial statements cannot be used against a criminal defendant, and will be excluded from evidence, if the defendant is denied the opportunity to confront and cross-examine the accuser in court.

Applying the "Testimonial Evidence" Requirement in the Hammon Case

The facts of Hammon, like those of Davis, are disturbing to read:

Police responding to a "domestic disturbance" report arrived to find Amy Hammon alone on her front porch, and her husband, Hershel, inside. Making sure Hershel stayed away, despite his attempts to intervene, the officer managed to speak to Amy alone, and asked her to submit an affidavit about the crime. Amy handwrote that Hershel had "Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter." Shattered glass from the furnace substantiated her account.

The Supreme Court concluded, based on these facts, that by the time the police showed up, the emergency was no longer ongoing. It also held that the purpose of the affidavit was - and, indeed, should have been, if proper procedures were used, as it seems they were - to "establish or prove past events potentially relevant to later criminal prosecution."

Accordingly, the Court held that the Confrontation Clause would apply to bar this "testimonial" evidence - unless the lower court, when the case was sent back, were to find that Hershel's behavior toward Amy meant that the doctrine of "forfeiture by wrongdoing" applied.

One Exception: Proof of Forfeiture of Confrontation Clause Rights By Wrongdoing

Under this doctrine, the Court explained, if the prosecutors could prove that Hershel had made sure Amy would be a no-show, by threats or otherwise, then Hershel might well have forfeited his right to Confrontation Clause protection: A defendant can't coerce a witness into not appearing in court, and then invoke the Confrontation Clause to use her failure to appear to his advantage.

The Court's invocation of this doctrine seems well and good, but the doctrine may prove relatively worthless in practice: If Amy was too scared of retaliation against her and her daughter - whom, remember, she had said Hershel also attacked -- to testify against Hershel in his criminal case, then wouldn't she also be too scared of retaliation for her to provide testimony establishing the "forfeiture by wrongdoing" that will keep him in jail?

The truth in these cases - and the victims know it - is that the defendant will be out of jail someday, and if he's been violent before, he may be violent again. And many such men know that the best way to retaliate against a mother, is to strike at the child she loves. So for many domestic violence victims, the risk of testifying simply seems too great to undertake.

Justice Thomas's Dissent: Questioning the Court's Test and How It Was Applied

Interestingly, Justice Thomas was alone among the nine Justices in deeming Amy Hammon's affidavit non-testimonial - and thus admissible even without proof of "forfeiture by wrongdoing" on Hershel's part.

In his view, a statement should not be deemed "testimonial" - and thus should not fall under the Confrontation Clause - unless it is made with "solemnity," meaning with some degree of formality. He saw no such formality in the questioning of Amy Hammon, who was not in custody, was not read Miranda warnings, and was not in any formal setting, but rather in her own home.

Justice Thomas also made the excellent point that the Court may have been much too quick to apply its own ongoing-emergency-versus-recounting-of-past-events test in Amy Hammon's case. He noted that "It is hardly remarkable that Hammon did not act abusively towards his wife in the presence of the officers" - suggesting that the emergency would have been ongoing except for the police's own presence there. Justice Thomas also remarked, similarly, that it was an open question "whether [Hammon's] violence would have resumed had the police left without further questioning…"

The factual record supports Thomas's points: After all, the shards of glass from the shattered furnace were still on the floor when the police arrived, and Hammon was still behaving aggressively, trying to keep the police away from his wife so she couldn't speak to them. (Indeed, an officer stated that Hammon "became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened.")

If a police visit only interrupts an emergency, how is it different from a 911 call? After all, in the companion case, Davis, it seems to have been victim Michelle McCottry's 9/11 call that interrupted the assault against her, and caused her assailant to flee. And no wonder: Though the 911 operator isn't present in the room, her listening ear and the fact that the call is being taped -- as well as the fact that police will soon be on the way -- may cause the abuser to pause in his assault.

In sum, Justice Thomas succeeded in pointing out that the line between the McCottry and Hammon situations - if one exists - is thin indeed, and that it makes little sense to protect McCottry, but not Hammon. Nor does it make much sense to deem only on-the-scene witness statements, but not answers to the 911 operator's questions, "testimonial" and thus covered by the Confrontation Clause.

The Arguments Against Justice Thomas's Position

There are strong counterarguments to Justice Thomas's position: For one thing, if adopted by the Court, it might prompt law enforcement to adopt a practice of taking unsworn accusatory statements at the scene and then encouraging witnesses not to appear at trail. Such a practice effectively eviscerates the Confrontation Clause, since all statements taken this way would be deemed "non-testimonial," based on the lack of solemnity. And the upshot would be to deny criminal defendants the ability to cross-examine their accusers.

Second, while the main area where the position seems necessary is that of domestic violence cases, Justice Thomas's position is general - in that it would apply even to cases where witnesses do not tend to be intimidated, and where the position is thus much less justified. (Domestic violence cases are arguably unique in that the victim may continue to live with her attacker, and if children are involved, the attacker has a natural "hostage" to use to keep the victim silent.)

Third, some subset - perhaps a very small one -- of domestic violence accusers (and accusers generally) are no-shows not because of fear or intimidation, but for other reasons. They may have exaggerated or fabricated their initial statements out of anger over another dispute within the relationship or marriage, and they may not be able to face reaffirming their lies in court.

Unfortunately, these are the very cases where the Confrontation Clause is most important: It acts to weed out cases where the accuser is unwilling to repeat accusations on the stand, under oath, while looking in the eyes of the person she's accusing. A bare prior written statement may have a false authority; the cross-examined testimony of an uncertain complaining witness, by contrast, can rightly torpedo a prosecution case.

Justice Thomas: Feminist?

Whether, in the end, one agrees with Justice Thomas's position or not, it's worth noting that of all nine Justices, only Justice Thomas, truly sought to accommodate the reality that domestic violence victims - and other terrified victims - often may not give any evidence against their accusers beyond what they give in the midst, or the immediate aftermath, of the crime itself. This reality counsels in favor of allowing the admission of both 911 calls and on-the-scene affidavits, for in reality, they may be the only evidence the police can get from an intimidated victim.

For this reason, feminists ought to take another look at the Justice they typically love to hate. Fifteen years after the Anita Hill hearings, Justice Thomas provides strong evidence that he may be able to look at the world from women's perspective, after all.

Of course, Justice Thomas's approach may be equally likely to derive from his tendency to be pro-law-enforcement: It not only lets more victims' statements in, but gives the police more leeway as to how and when they take statements, and prosecutors more leeway in how they can use the statements, once taken. But it's still worth noting that it is domestic violence victims, who are almost exclusively female, who would most benefit from Thomas's approach.

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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