911 Calls as Testimonial Evidence (SCOTUS Preview)

Today in Washington, D.C., the United States Supreme Court heard oral arguments in the matter of Davis v. Washington.^[1] The case is taken on appeal from the Washington Supreme Court for consideration of the issue of whether an alleged victim's statements to a 911 operator naming her assailant—admitted as "excited utterances" under Washington’s state hearsay rules—constitute "testimonial" statements subject to the Confrontation Clause restrictions applied in Crawford v. Washington.^[2]

The Crawford standard forbids testimonial statements from being introduced in the absence of the witness as violating the defendant’s constitutional right under the Sixth Amendment to confront the witnesses testifying against her.^[3] However, in Davis both the state appeals court and state Supreme Court allowed the 911 statements to be entered as evidence under the “excited utterance” exception to the prohibition against hearsay.^[4]

The Supreme Court has been asked by the parties to analyze the historical origins of the Confrontation Clause in order to apply an interpretation that will address victim‑witness statements made to 911 operators when the victim is unavailable to testify at trial. Failing the success of a constitutional interpretation, each party proposes that the Court adopt a qualifying test for this type of statement.

Reasonable Declarant Test
Petitioner Davis argues that the framers of the Constitution understood the Confrontation Clause to apply to immediate reports of crime to government agents. Therefore, allowing for technological change, the Clause applies to 911 calls when made for the purpose of reporting crimes.^[5] Davis proposes that the Court apply a “reasonable declarant” test: Would a reasonable declarant have anticipated that her statement might be used for law enforcement purposes?^[6]

The weakness in this argument is that it presumes a standard of objective reasonableness for a crime victim making a desperate call for emergency help. Evaluating this standard may be a real mind‑bender for the reasonable juror, with or without cross‑examination.

Resemblance Test
Respondent State points to the intent of the Confrontation Clause to prevent prosecutorial abuse.^[7] Washington proposes that the Court apply a three‑part “resemblance” test.

1. Does the 911 operator have “an essentially investigative and prosecutorial function?”^[8]
2. Is the 911 operator conducting a structured police investigation?
3. Has the 911 operator had the opportunity and ability to manipulate the witness’s statement into “something that resembles trial testimony?”^[9]

The weakness in this argument is that when the policies guiding 911 operator behavior in collecting, assessing, and acting on the statements of callers goes beyond mere emergency assistance, these practices are as vulnerable to abuse as the potential prosecutorial abuse it seeks to avoid. For example, in reports of domestic violence, the 911 operator may be bound to inquire the attacker’s relation or identity and to report the incident as a crime. Cross‑examination is essential in this situation.

If the Supreme Court holds that the statements in question are “testimonial,” they are admissible only if the victim is available for cross‑examination at trial. If the statements are “non‑testimonial,” they are admissible regardless of the victim’s availability.

This case was heard with its companion case, Hammond v. Indiana.^[10] The cases are likely to be decided this summer.

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[1] Northwestern University’s “On the Docket” maintains current lists of cases before the United States Supreme Court. The overview for Davis v. Washington is available here.
[2] Crawford v. Washington, 541 U.S. 36 (2004).
[3] Id. See also U.S. Const. Am. VI.
[4] Fed. R. Evid. 802 (Hearsay Rule) and Fed. R. Evid. 803(2) (Excited Utterance). The Rule 803 hearsay exceptions do not require that the declarant be unavailable at trial.
[5] Brief for the Petitioner, Davis v. Washington, No. 05‑5224, Dec. 22, 2005.
[6] Id. at 41.
[7] Brief for the Respondent, Davis v. Washington, No. 05‑5224 (no date given).
[8] Id. at 21. See also Crawford supra note 2 at 53.
[9] Id. at 21.
[10] Hammond v. Indiana, No. 52S02‑0412‑CR‑510 (June 16, 2005).