Davis v. Washington

In Davis v. Washington (2006) 547 U.S. 813, the victim told a 911 operator that her former boyfriend, Davis, was assaulting her with his fists. After the victim answered the 911 operator's questions regarding her location, the boyfriend's name, and whether he had a weapon or had been drinking, the victim stated, "'He's running now.'" (Davis, at p. 818.) The 911 operator then asked a series of more detailed questions about the assault and about Davis. Police arrived shortly thereafter. The victim did not testify at Davis's subsequent trial for felony violation of a domestic no-contact order. Over Davis's objection, the trial court admitted the 911 call. Michelle McCottry told the police: "He's here jumpin' on me again"; "He's usin' his fists"; later in complainant's colloquy with the 911 operator, she identified defendant by his full name (id. at 817). Clearly, she could well have expected her statements to be used against defendant later at trial. However, viewing the circumstances objectively, her responses to questioning--though prejudicial--were not accusatory (in a Sixth Amendment sense) as they served the primary purpose of aiding the police in an ongoing emergency, not to implicate defendant. In other words, her statements were not the "courtroom analogues" (id. at 828) that the Clause was designed to protect against. In short, McCottry neither "testified" nor bore "witness" against defendant. The Court elaborated on Crawford, but ushered in no new law. Its contribution, useful for evaluating the confrontation question, was in its application and its resounding emphasis that context matters for Confrontation Clause purposes. As Davis showed, determining the question whether evidence was improperly admitted requires a fact-intensive inquiry under the circumstances of each case. In Davis, the Court held that in the context of police interrogations, "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" (547 US at 822). Davis reiterated that the Confrontation Clause is concerned with the "weaker" but functional "substitute for" live testimony (i.e., ex parte accusatory statements) (id. at 828). Davis rejected the defendant's contention that admission of the first portion of the 911 call violated his confrontation clause rights. The court explained: "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, 547 U.S. at p. 822.) The victim in Davis spoke about events as they were actually happening. (Id. at p. 827.) The court also noted that the 911 call was made in an unsafe, nontranquil environment. (Ibid.) Under these circumstances, the first portion of the 911 call was nontestimonial. The primary purpose of the operator's questions was to enable police to meet an ongoing emergency. The victim was "not acting as a witness; she was not testifying." (Id. at p. 828.) Her statements were not a weaker substitute for live testimony at trial. (Ibid.) However, a conversation which begins as an interrogation to determine the need for emergency assistance may "'evolve into testimonial statements,' . . . once that purpose has been achieved." (Ibid.) Thus, once the boyfriend had left the premises, the "emergency appeared to have ended" and the responses to the 911 operator's subsequent "battery of questions" were likely testimonial. (Id. at pp. 828-829.) Davis's "primary purpose" test thus reflects the important distinction between a statement (generated through police interrogation or otherwise) that "accuses" a perpetrator of a crime--i.e., to "do precisely what a witness does on direct examination" (id. at 830)--versus one that serves some other nontestimonial purpose (i.e., to meet an ongoing emergency): the former is accusatory since its "purpose ... is to nail down the truth about past criminal events" (id.), while the latter is not. In Davis v. Washington the United States Supreme Court clarified Crawford and, without producing a classification of testimonial statements, held that "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." Id. at 2273-2274.In Davis v. Washington, the Supreme Court addressed what statements are testimonial. It held that "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." Id. at 822. In Davis, the Supreme Court wrote that "the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establish or prove' some past fact, but to describe current circumstances requiring police assistance." Id. at 827. It noted that the caller in that case was describing events "as they were actually happening" rather than describing past events. Id. The Court also noted that "any reasonable listener would recognize that the caller . . . was facing an ongoing emergency." Id. It further wrote that the "call was plainly a call for help against bona fide physical threat." Id. According to the Court, "the nature of what was asked and answered, . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past." Id. Finally, it wrote that the caller was not "responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers." Id. Instead, her "frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe." Id. The Court concluded "that the circumstances of the interrogation objectively indicated that its primary purpose was to enable police assistance to meet an ongoing emergency." Id. at 828. It, therefore, held that the caller's initial statements to the 911 operator were not testimonial. Id. at 829. In Davis v. Washingtonm the Supreme Court elaborated on what constitutes testimonial statements and "determined more precisely which police interrogations produce testimony" subject to the confrontation clause. (Id. at p. 822.) It concluded that questioning by a 911 operator of a domestic violence victim regarding what had occurred during a domestic violence incident that was the subject of the call, including circumstances at the house at the time of the call, the identity of the perpetrator, what he was doing, why he was at the house, whether he was armed, and a description of the assault (id. at pp. 817-818) is not testimonial hearsay because it is not designed primarily to establish or prove some past fact but to describe current circumstances requiring 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." (Id. at p. 822.) Interrogations "solely directed at establishing the facts of a past crime, in order to identify (or produce evidence to convict) the perpetrator" are clearly testimonial. (Id. at p. 826.) In Davis v. Washington (2006) 547 U.S. 813, the day arrived for the Supreme Court to elaborate on what constitutes testimonial statements and to "determine more precisely which police interrogations produce testimony" subject to the confrontation clause. (Id. at p. 822.) In that case, the trial court admitted in evidence a recording of the statements made by a domestic violence victim in response to a 911 telephone operator's questions regarding what had occurred during a domestic violence incident that was the subject of the call, including circumstances at the house at the time of the call, the identity of the perpetrator, what he was doing, why he was at the house, whether he was armed, and a description of the assault. (Id. at pp. 817-818.) Answering a question left open in Crawford, the Supreme Court concluded that the confrontation clause applies only to testimonial hearsay. (Davis, supra, at pp. 823-826) It was therefore required to determine if the victim's statements in the 911 call were testimonial. In making that determination, the Supreme Court held that, "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, 547 U.S. at p. 822.) Interrogations "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator" are clearly testimonial, "whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer." (Id. at p. 826.) To determine whether an individual is acting as a witness and in essence "testifying" so as to require confrontation, all of the surrounding circumstances must be considered, including (1) when the statements were made (were the events going on), (2) the nature of the report given, (3) the level of formality when the statements were made, and (4) the purpose of obtaining the statements. (See Davis, supra, 547 U.S at pp. 826-827.) Interrogation during a 911 call is not testimonial because it is not designed primarily to establish or prove some past fact but to describe current circumstances requiring police assistance. In Davis, the victim was facing an ongoing emergency and called 911 for help. She was speaking of events as they were occurring, rather than describing past events. The questions asked and answers given, viewed objectively, were necessary to enable resolution of the present emergency, rather than to learn what occurred in the past. Also, the level of formality in Davis, where in a non-tranquil environment frantic answers were provided, was significantly lower than in Crawford, which involved an interview at the police station hours after the crime. (Davis, supra, 547 U.S. at p. 827.) Davis stated: "We conclude from all this that the circumstances of the victim's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony.'" (Id. at p. 828.) The Supreme Court commented on its evolving notion of testimonial hearsay in the confrontation clause context: "Without attempting to produce an exhaustive classification of all conceivable statements--or even all conceivable statements in response to police interrogation--as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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." In the context of a 911 call where a victim described an attack on her as it was occurring, the court provided further assistance in determining what statements to police are testimonial: "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, 547 U.S. at p. 822.) Davis held the 911 statements were not testimonial. (Id. at p. 828.) In sum, the victim was on the phone with a 911 operator while the defendant was assaulting her and after he took off running. (Davis, supra, 541 U.S. at p. 817.) Part of the victim's statement was in response to questions asked by the operator. As here, the victim failed to appear for trial and the tape of her 911 call was introduced into evidence. The Supreme Court held, "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. . . . 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. . . . A 911 call . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establish or prove' some past fact, but to describe current circumstances requiring police assistance. . . . The victim here was speaking about events as they were actually happening, rather than 'describing past events.' . . . Any reasonable listener would recognize that the victim . . . was facing an ongoing emergency. . . . The victim's call was plainly a call to help against a bona fide physical threat. The nature of what was asked and answered . . . , viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. . . . The victim's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. We conclude from all of this that the circumstances of the victim's interrogation objectively indicated its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony' at trial . . . . (Davis, supra, 541 U.S. at pp. 821, 827-828.)