Lawyers Manual - Unified Court System

212 Elizabeth Cronin
hearsay rules can continue to exempt such statements from Confrontation
Clause scrutiny.” 41 Indeed, the Supreme Court in Crawford even questioned
whether the Confrontation Clause applies at all to non-testimonial statements. 42
In a decision issued on June 19, 2006, which should clear up some of the
confusion, the Supreme Court dealt with that question in two cases heard
together involving domestic violence prosecutions. Ruling in two cases, Davis v
Washington and Hammon v Indiana, 43 the Court addressed whether the
admission of a 911 tape and a statement taken by the police from a victim were
properly admitted under Crawford. The Court found that portions of the 911
tape were not testimonial and thus admissible, but that the statements taken by
the police were testimonial and barred.
In Davis, the victim called 911 and described to the 911 operator an ongoing
assault by her ex-boyfriend. Before the police arrived and after the
perpetrator fled the scene, the operator kept the victim on the line and continued
to ask her questions about the assault. When police officers arrived, they were
able to observe physical injuries to the victim. She did not testify at trial, but the
trial court admitted the 911 tape of her initial report to the operator as an excited
utterance. In the Hammon case, police responded to a report of a domestic
disturbance and found Mrs. Hammon on the front porch appearing frightened but
claiming nothing was wrong. Police found Mr. Hammon inside, observed broken
glass, took Mrs. Hammon into a separate room, interviewed her about the
incident, and took a written statement from her. She also did not testify at trial,
and the court admitted her statements as present sense impressions.
In finding that the ruling on the 911 tape was correct, but that allowing Mrs.
Hammon’s statements into evidence was not, the Court was careful to
differentiate between the conduct of the police and the victims in the two cases.
The Court held that testimonial statements are those that “circumstances
objectively indicate there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” 44 Conversely, non-testimonial statements
are those that enable the police to “meet an ongoing emergency.” 45
The Court determined that the initial part of the 911 call was properly
admitted because the statements elicited by the operator were used to resolve
the present emergency and not for investigatory purposes. The Court
compared the interview with Mrs. Crawford at the police station hours after
the assault with the immediacy of the situation in Davis. The Court found that
the victim in Davis was not acting as a witness and was not “testifying” for
purposes of Crawford.