Are 911 Calls Testimonial ?

In Davis v. Washington (2006) 547 U.S. 126, the court clarified the issue when it established an analytical framework for determining whether 911 calls are testimonial. Davis involved a 911 call from a domestic violence victim. The victim's 911 call terminated shortly after connection without any words having been spoken. The 911 operator returned the call. Upon answering, the victim stated: "'He's here jumpin' on me again. . . .'" (Davis, supra, 126 S.Ct. at p. 2271.) After naming the defendant and briefly describing the assault, the victim informed the operator the defendant had "'just run out the door'" and was leaving in a car with another person. The victim started to speak again, but the operator told her to "'stop talking and answer my questions.'" (Ibid.) The victim complied and provided information about the defendant, including his birthday, and further described the circumstances of the assault. The Davis opinion also included the facts of Hammon v. State (Ind. 2005) 829 N.E.2d 444, a companion case which had been consolidated with Davis. In Hammon, police responded to a domestic disturbance at the home of Hershel and Amy Hammon. (Davis, supra, 126 S. Ct. at p. 2272.) The officer found Amy alone on the front porch, appearing "'"somewhat frightened."'" (Id. at p. 2272.) Nonetheless, Amy told them "'"nothing was the matter."'" (Ibid.) Herschel was in the kitchen, who admitted an argument with Amy, but claimed it "'never became physical.'" (Ibid.) After the officers separated the couple, Amy informed them that Herschel had shoved her to the floor and attacked their daughter. (Ibid.) The Supreme Court determined the statements in the 911 call in Davis were nontestimonial, but came to the opposite conclusion regarding the police interview in Hammon. The high court explained that in Davis the statements were nontestimonial because they: (1) pertained to ongoing events; (2) involved an emergency situation; (3) were in response to questions intended to elicit information to resolve the ongoing emergency situation; and (4) were rendered in an informal setting. (Davis, supra, 126 S. Ct. at pp. 2276-2277.) The court explained that in Hammon,the statements were testimonial because they "deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed." (Id. at p. 2278.) The court reasoned, "Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial." (Ibid.) The court summarized the holding for both cases: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the 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." (Davis, supra, 126 S. Ct. at pp. 2273-2274.) In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that the confrontation clause barred "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Id. at pp. 53-54.) Crawford did not provide a comprehensive definition of "testimonial," but explained the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.) In Davis v. Washington, the court held: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the 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." (Davis, at 126 S. Ct. at pp. 2273-2274, fn. omitted.) The Davis court applied its holding in two factually distinct "911 call" scenarios involving domestic violence. One scenario (Davis v. Washington) involved a telephone call between a 911 emergency operator and a woman reporting that she was in the middle of a domestic disturbance involving her former boyfriend. The operator asked what was going on, whether she was in a house or apartment, whether there were any weapons and whether he had been drinking. The woman responded in the present tense that the defendant was "here jumpin' on me again" and that "He's usin' his fists." (Davis, supra, 126 S. Ct. at p. 2271.) The operator's continuing questions elicited the defendant's name and birthday, his reason for being at her apartment and further minute by minute reports that the defendant had " 'just run out the door' after hitting her and he was leaving in a car with someone else." (Ibid.) The operator informed the woman that the police were on their way and were going "check the area for him first" before coming to talk to her. (Ibid.) When the police arrived four minutes later, the woman had fresh injuries and was frantic. (Ibid.) In the second scenario (Hammon v. Indiana), police officers responded to a " 'reported domestic disturbance' " call at a home and found the woman sitting alone on the front porch. (Davis, supra, 126 S. Ct. at p. 2272.) She appeared " ' "somewhat frightened" ' " but said " ' "nothing was the matter." ' " (Ibid.) With her permission, the officer entered the house and saw a gas heating unit with flames shooting out of a partial glass front and broken glass on the ground in front of it. (Ibid.) The woman's husband was inside and told the police that there had been an argument but it had never become physical. The officers isolated the husband and wife in different rooms and asked the wife again " 'what had occurred.' " (Ibid.) The husband became angry when the police officer insisted on keeping the couple separated while the officers " 'investigated what had happened.' " (Ibid.) After hearing the wife's story, the officer had her fill out and sign an affidavit in which she handwrote that her husband had broken the furnace, shoved her into the broken glass, and hit her in the chest. (Ibid.)