What Is the Purpose of the Confrontation Clause ?
In Crawford v. Washington, 541 U.S. 36 (2004), at issue was the admissibility of a tape-recorded statement by the accused wife, made while she was in police custody in response to often leading questions from police detectives, implicating her husband in the stabbing of a man and arguably undermining her husband's claim of self-defense. Crawford, 541 U.S. at 39-40, 65.
Although she did not testify at trial because of Washington State's marital privilege law, her statement was admitted at trial because the trial court, for several reasons, found the statement reliable. Id. at 40, 65.
The Supreme Court reversed the conviction, likening her statement to ex parte testimony admitted against a criminal defendant, and ruled that its admission had violated the accused's rights under the Confrontation Clause. Id. at 66.
The Crawford Court held that the Confrontation Clause bars "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 53-54.
The critical determination under Crawford is whether an out-of-court statement is testimonial. The Court explained that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations conducted by judicial officers as evidence against the accused." Id. at 50.
The Court stated that only "testimonial" statements cause a declarant to be a "witness" within the meaning of the Confrontation Clause. Id. at 51.
The Crawford Court explained that a witness is a person who "bears testimony." Id. "'Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or disproving some fact.'" Id. . Thus, "an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id.
The Court declined to articulate a comprehensive definition of what is testimonial, but set forth three formulations of "core class" testimonial statements.
The three formulations were:
(1) "ex-parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;"
(2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;" and;
(3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52.
It stated that the formulations "all share a common nucleus," and held that at "a minimum" the formulations applied to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations." Id. at 52, 68.
The Court stated that those kinds of statements were the "closest kinship to the abuses at which the Confrontation Clause was directed." Id. at 68.
If, however, the statement is nontestimonial hearsay, "it is wholly consistent with the Framers' design to affirm the States flexibility in their development of hearsay law" to such statements that are exempt from Confrontation Clause scrutiny. Id.
Two years later, the Supreme Court passed upon another Confrontation Clause issue. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) involved two consolidated cases asking the Court to determine when statements made to law enforcement personnel during a 911 call and at a crime scene are "testimonial," and thus subject to the requirements of the Sixth Amendment's Confrontation Clause. In Davis v. Washington, a woman made a 911 call while in the midst of a domestic disturbance with her former boyfriend. Davis, 547 U.S. at 817. Four minutes after the call, the police found her in a shaken state with fresh injuries on her body and frantically attempting to leave the residence with her belongings and children. Id. at 818. At her boyfriend's trial, the victim did not appear and the tape of her 911 call was admitted into evidence. Id. at 819.
In Hammon v. Indiana, the police responded to a report of a domestic disturbance and found the victim alone on the porch. Although she appeared "somewhat frightened," she told them that "nothing was the matter." Id. at 819. The police questioned the victim and learned that she and her husband had had a fight. Id. at 820. She filled out and signed a "battery affidavit" alleging that her husband had physically assaulted her. Id. At her husband's trial, the victim did not appear and her affidavit and oral statements to the police were admitted into evidence. Id. at 820-21.
The Davis Court clarified that not all statements made during police interrogation are "testimonial." The Court explained that whether statements made during a police interrogation are "testimonial" depends upon the circumstances under which they were given. Statements "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 contrast, 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." Id.
The Davis Court considered a number of factors in determining the primary purpose of the interrogations at issue, specifically:
(1) the timing of the statements, i.e., whether the declarant was speaking about actually happening or past events; (2) whether the "reasonable listener would recognize that the declarant . . . was facing an ongoing emergency"; (3) the nature of what was asked and answered, i.e., whether the statements were necessary to resolve the present emergency or simply to learn what had happened, in the past; and (4) the interview's level of formality. . . . In assessing formality, relevant measures included the interview's location; whether the declarant was actively separated from the defendant; whether "the officer received the declarant's replies for use in his investigation"; and whether the statements "deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed." (Davis, 547 U.S. at 830)
The Davis Court concluded that the interrogation that took place during the 911 call did not produce testimonial statements while the police interrogation in Hammon did.
The Court reasoned that the former were not testimonial because the victim was speaking about events as they were occurring, rather than describing past events; that she was facing an ongoing emergency; and that the statements were necessary to resolve the ongoing emergency. Davis, 547 U.S. at 827-28. Under these circumstances, the Court explained that the "primary purpose" of the interrogation was to "enable police assistance to meet an ongoing emergency" and in this connection the victim "simply was not acting as a witness, she was not testifying.
What she said was not 'a weaker substitute for live testimony' at trial." Id. at 828.
In contrast, in Hammon, the Court concluded that the statements were testimonial because the interrogation was part of an investigation into possibly past criminal conduct and there was no emergency in progress. Id. at 829-30.
The Court stated that when 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." Id. at 830.