Confrontation Clause—911 Calls and 911 Visits

Yesterday, the United States Supreme Court issued a decision in two consolidated cases concerning the use of an alleged victim’s out‑of‑court statements in a criminal trial.^[1] In Davis v. Washington (05-5224), at issue were the recorded statements made by Michelle McCottry to a 911 operator reporting an attack and naming her boyfriend as the attacker.^[2] In Hammond v. Indiana (05-5705), Amy Hammond gave essentially the same information to police officers who arrived at her home to investigate a domestic dispute.^[3] Neither Davis nor Hammond was available to appear in court to testify at the ensuing criminal trials.^[4]

In addressing the use of such statements with regard to a criminal defendant’s rights “to be confronted with the witnesses against him” under the 6th Amendment Confrontation Clause, the Court established a clear difference between the two statements, allowing in only those statements judged to be “nontestimonial.”^[5]

The ruling leaves intact the Crawford rule that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was available to testify, and the defendant had a prior opportunity for cross‑examination.”^[6] In so doing, it defines “testimonial statements” as follows: “[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of 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.”^[7]

The Court held that, regardless of what McCottry intended to convey to the 911 operator, the circumstances, objectively considered, indicated that she was “seeking aid, not telling a story” about past events.^[8] Since 911 calls are typically made in the midst of an emergency, all such calls are sure to be seen as presumptively nontestimonial.

However, in the reality of emergency police calls, the difference between the statements of a witness speaking with police who have arrived to intervene in an ongoing situation and the statements of a witness who calls for help in similar circumstances, and has the presence of mind to give the kind of identifying information that can be used in building a prosecution, is not so clear—even from an objective standpoint.

In his opinion, concurring in part and dissenting in part, Justice Thomas pointed out that in “many, if not most, cases where the police respond to a report of a crime…the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence.”^[9] By charging the court with making an objective determination of the purpose for the police investigation, Justice Thomas suggests that this decision “extends the Confrontation Clause far beyond the abuses it was intended to prevent,” namely prosecutorial abuse.^[10]

The challenge for the criminal defense attorney will be to explore the grey area and to force a full consideration of the objective circumstances, rather than to permit the courts to apply a knee‑jerk application of an apparently clear‑cut rule. Despite the appearance of clarity in the Court’s ruling, the admissibility of emergency call information, whether rendered in front of the calming presence of police officers or over the phone, remains a murky area in light of the protections of the Confrontation Clause.

This ruling affirms the verdict in Davis and remands Hammond for further proceedings.^[11] The Court did not address the issue raised in Hammond of whether or not a claim of “forfeiture by wrongdoing,” or wrongfully preventing a witness from testifying at trial, precludes confrontation rights.^[12]

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[1] Linda Greenhouse, 911 Call is Held as Evidence if Victim Cannot Testify, New York Times, June 19, 2006.
[2] Davis v. Washington, 547 U.S. ____ (2006)(J. Thomas concurring in part).
[3] Id.
[4] Id.
[5] U.S. Const., Amend. VI.
[6] Crawford v. Washington, 541 U.S. 36, 53‑54 (2004).
[7] Davis at 6-7.
[8] Davis at 17.
[9] Davis at concurrence 6, citing New York v. Quarles, 467 U.S. 649 (1984).
[10] Davis at concurrence 8.
[11] Davis at 19.
[12] Davis at 18-19.