Lawyers Manual - Unified Court System

Beyond Victims’ Testimony 213
The Court did warn, however, that not everything in a 911 call is
necessarily non-testimonial. Once the purpose of dealing with the emergency
subsides, statements can evolve into testimonial statements depending on the
circumstances. The Court suggested that in those situations, the trial court can
redact or exclude those portions of the 911 call that are not admissible under
Crawford. The Supreme Court said that “trial courts will recognize the point at
which, for Sixth Amendment purposes, statements in response to interrogations
become testimonial.” 46 In Davis, the Supreme Court was not asked to
specifically address whether the victim’s later statements on the 911 tape in
response to questioning by the operator were testimonial. The Court said that
the only claim before it was the victim’s early statements to the operator
identifying Davis. The Court pointed out that Davis did not challenge a finding
by the trial court that, even if later parts of the 911 call were testimonial, their
admission was harmless beyond a reasonable doubt. Since Davis did not
challenge that ruling, the Court assumed the trial court ruling to be correct.
Conversely, the Court found that the statements taken by police in Hammon
were testimonial. The victim’s narrative, delivered when she was not in an
immediate position of danger, was a description of past events. In addition, the
Court rejected the finding of the Indiana Supreme Court that any initial inquiries
at the crime scene cannot be testimonial, although the Court acknowledged that
exigencies may exist such that initial inquiries produce non-testimonial
statements while later statements are testimonial. The Court considered that
Mrs. Hammon was physically removed from her husband’s presence, her
statement was in response to police questions regarding past events, and they
were taken “some time” after the events described had ended. As the statements
were taken “under official interrogation [and] are an obvious substitute for live
testimony,” the Court considered them inherently testimonial. 47
The Court also rejected the argument that domestic violence cases require
greater flexibility. While the Court acknowledged that “[t]his particular type of
crime is notoriously susceptible to intimidation and coercion of the victim to
ensure that she does not testify at trial,” the Court nonetheless refused to “vitiate
constitutional guarantees” under the Confrontation Clause. 48 However, the Court
also pointed out that the 6th Amendment does not render the courts without a
remedy when defendants “act in ways that destroy the integrity of the criminaltrial
system.” When it can be shown that the victim was coerced into silence by
the offender, the trial court can determine whether the defendant has forfeited
his right to exclusion of otherwise inadmissible hearsay evidence.