Ongoing Emergency Confrontation Clause

In Davis v. Washington (2006) 547 U.S. 813, the Supreme Court consolidated two domestic violence cases--Davis v. Washington and Hammon v. Indiana--and defined the contours of the confrontation clause in emergency situations. In the Davis v. Washington case, the victim called 911 as she was being attacked by her assailant, and in response to questions by the 911 operator, said that the assailant was "jumpin' on" her and that he was using his fists and had no weapons. (Davis, supra, 547 U.S. at p. 817.) The Supreme Court concluded that the circumstances of the questioning by the 911 operator "objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency." (Id. at p. 828.) The Court stated that the victim was not "acting as a witness" or "testifying," and that "what she said was not 'a weaker substitute for live testimony' at trial . . . ." (Ibid., italics omitted.) In Hammon v. Indiana, police responded to a domestic disturbance call at a home, and the victim was alone on the front porch when the two officers arrived. She appeared somewhat frightened but said " ' "nothing was the matter." ' " (Davis, supra, 547 U.S. at p. 819.) Inside the house, the defendant told the officers that he and the victim had been arguing, but that it never became physical. (Ibid.) While one officer remained with the defendant, the other spoke to the victim in another room. (Ibid.) There, the victim told the officer that the defendant broke the phone, lamp and heater, and that he threw her down into the glass of the heater and punched her in the chest, among other things. (Id. at p. 820.) The Supreme Court concluded, "There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing. . . ." (Id. at p. 829.) The victim had "told them that things were fine and there was no immediate threat to her person." (Id. at p. 830.) The Court concluded, "Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime--which is, of course, precisely what the officer should have done." (Ibid., italics omitted.) The Court held that the statements were therefore inadmissible under Crawford v. Washington (2004) 541 U.S. 36. (Ibid.) In Michigan v. Bryant (2011) U.S. , 131 S. Ct. 1143, the United States Supreme Court clarified the meaning of an "ongoing emergency" and whether the primary purpose of a police interrogation is to obtain evidence or resolve the emergency. The Court stated, "To determine whether the 'primary purpose' of an interrogation is 'to enable police assistance to meet an ongoing emergency,' , which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties." (Id. at p. 1156.) The Court stated, "The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than 'proving past events potentially relevant to later criminal prosecution.' Rather, it focuses them on 'ending a threatening situation.' Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination." (Id. at p. 1157.)