The National Pulse

Confronting 911 Evidence

The caller to 911 sounded scared: “He’s here jumpin’ on me again” and “he’s using his fists,” she said.

Michelle McCottry had a restraining order against her ex-boyfriend, and she was calling to say he was back and inside her house south of Seattle. The operator had the address and dispatched a police officer.

“Listen to me carefully. Do you know his name?” the operator continued.

“It’s Davis,” she replied.

And his first name?


A middle initial?

“Martell,” she said, adding that “he’s running now.”

So began the U.S. Supreme Court case of Adrian Martell Davis v. Washington, No. 05-5224, a prosecution that could change everyday practices in courtrooms across the nation.

Based on this brief conversation, the ex-boyfriend was convicted of violating a restraining order and given 15 months in prison. McCottry did not appear to testify against Davis or to be cross-examined, but the prosecutor said she had something just as good on the tape. The victim “left you her testimony on the day that this happened,” she told the jury.

The court agreed to hear Davis’ appeal, contending that in-court use of an out-of-court statement violated his right under the Sixth Amendment “in all criminal prosecutions … to be confronted with the witnesses against him.”


Davis has an ally in Justice Antonin Scalia, who has insisted that the Constitution be interpreted according to its words and history. Throughout his nearly 20-year ca­reer on the high court, Scalia has condemned the court’s refusal to apply the confrontation clause literally.

Until recently, Scalia spoke mostly in dissent. Begin­ning in 1980 with Ohio v. Roberts, 448 U.S. 56, the court adopted a balancing test that allowed hearsay statements if they were reliable and trustworthy. The mid-1980s saw a wave of prosecutions alleging the sexual abuse of young children in day care centers. Many of these prosecutions relied on statements from children as reported by child abuse investigators.

Scalia repeatedly dissented when the court upheld the use of out-of-court statements or taped testimony in the place of a face-to-face confrontation in court. But the tide turned two years ago when Scalia spoke for the court in Crawford v. Washington, 541 U.S. 36. His opinion all but interred Ohio v. Roberts and said confrontation was the rule.

“The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack the authority to replace it with one of our own devising,” he wrote for a 7-2 majority.

In that case, Michael Crawford was convicted of stabbing another man based in part on a tape-recorded statement his wife had given to police. She did not testify, however, and the court overturned Crawford’s conviction. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation,” Scalia concluded.

However, his opinion did not define what he meant by a “testimonial” statement: “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ”

That day has apparently come with the cases of Davis and Hershel Hammon, whose case was combined with Davis. Hammon’s wife told a police officer on the front porch of their home in Peru, Ind., that her husband had punched her and thrown her against a heater. She did not testify either, but Hammon was convicted of domestic battery based on her statements. Hammon v. Indiana, No. 05-5705.

The state supreme courts in Washington and Indiana held these out-of-court statements were not testimony, but were admissible as excited utterances. State laws permit the hearsay use of excited utterances on the theory that reports are direct and spontaneous, different in kind from solemn accusations delivered in court.


State prosecutors, the National District Attorneys Association and U.S. Solicitor General Paul Clement all filed briefs urging the high court to permit the courtroom use of “emergency questioning” at a crime scene or in a 911 call. They argue that, historically, the events that led to the confrontation right showed the danger only of carefully prepared, out-of-court statements that were used by the prosecution and where the accused had no chance to confront or cross-examine his accusers.

Today, “police interrogation resembles the historical abuses regulated by the confrontation clause only when the police ask formal, tactically structured questions, pursuant to a criminal investigation, aimed at producing evidence for use at trial,” says King County, Wash., prosecutor Norm Maleng. Emergency calls to 911 and crime scene statements are quite another matter, he says. “It defies common sense to suppose that a person who calls 911 in the midst of, or in the immediate aftermath of, a harrowing experience” is trying to shape a prosecution, he says.

Lawyers for Davis and Hammon say this distinction between emergency statements and solemn accusations is unreasonable and unworkable.

Seattle lawyer Jeffrey L. Fisher, the winning advocate in Crawford, represents Davis and argues that the court should enforce the confrontation right by ruling that accusatory statements made to authorities are testimonial. Otherwise, prosecutors will have an incentive to bring cases based on out-of-court statements.

“It’s a lot easier to try a case where your witness can’t be cross-examined,” he says. “If you have a good statement from the witness, why would you call them to the stand to testify?”

But University of Michigan law professor Richard D. Friedman says confronting your accusers is hardly a new idea. “This is the way we have done business for 500 years,” says Friedman, an expert on the confrontation clause who represents Hammon. “You don’t testify by talking to a cop or by writing out a statement. [Testimony from a witness] should happen in open court,” he says.

Friedman urges the court to adopt a simple, clear rule: “A statement made to a known police officer (or other government agent) … and accusing another person of a crime is testimonial” and, therefore, subject to the confrontation rule if used in court.

Other criminal defense lawyers stress the peculiar result if the state prosecutors were to prevail. According to their view, a brief comment or a fractured statement in a phone call could be used in court as evidence from a witness, but a sworn affidavit taken by a police investigator would be excluded. Hammon’s wife gave a detailed, written statement to police officers that described her husband throwing furniture and hitting her, but the Indiana courts excluded it from evidence because these words were seen as testimonial. Only her cursory comments from the front-porch interview were used against him.

The two cases were argued before the court in late March, and a ruling is expected by the end of June.

Advocates for victims of domestic violence fear the impact of a victory for Davis and Hammon.

“It would make it very difficult, if not impossible, to prosecute the vast majority of domestic violence cases,” says Joan S. Meier, a law professor at George Washington University who helped write an amicus brief on behalf of the National Network to End Domestic Violence. Victims “are often traumatized and terrorized by the defendants themselves.

The irony of this is the defendant is saying to the court: I want the witness in court to cross-examine her. But the last thing they want is to have the witness in court.”

The district attorneys said strict enforcement of the confrontation rule would give “a free pass to many of those who prey on … elderly victims, children and the socially powerless.”

While some advocates say state and local prosecutors should do more to protect victims and to encourage them to testify, others predict the prosecutions will be dropped if the victims of domestic violence must testify in court.

Friedman acknowledges that enforcing the Sixth Amend­­ment imposes a burden on the legal system. “But there is not a domestic-violence exception to the Consti­tution and the confrontation clause,” he says. “I think they can cajole victims to testify and do a better job of protecting them. I don’t think the right answer is to continue disregarding the rights of the defendant.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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