Davis and Hammon

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The facts of Davis and Hammon illustrate the difference between testimonial and nontestimonial statements based upon whether an emergency is in progress. In Davis, the victim's statements to a 911 operator were at issue. After receiving a hang-up call, the 911 operator called back. On the other end, a woman answered: "He's here jumpin' on me again." The 911 operator asked the caller specific questions about the location of the assault, whether weapons or alcohol were involved, and the assailant's name. Upset and crying, the woman told the operator that Davis, her boyfriend, had come to the house to "get his stuff," beat her with his fists, and was leaving in a car with someone else. Within four minutes, two police officers arrived at the woman's home. They observed fresh, swelling injuries on her forearm and face. As they spoke with her, she frantically gathered her belongings and children to leave the house.

The state charged Davis with a felony violation of a domestic no-contact order. At trial, the victim failed to appear to testify, and the two responding police officers were the only witnesses against Davis. Over objection, the trial court admitted the 911 tape recording under the excited utterance hearsay exception. The Supreme Court deemed the hearsay statement nontestimonial because the statement was made during a 911 call, while the victim was distressed and in need of emergency help. The victim's statements were her frantic answers, provided over the telephone, in an environment that was not tranquil or safe. Thus, she was not acting as a witness or testifying; she was seeking police assistance to resolve the present emergency rather than providing information as to what had happened in the past.

In contrast, in Hammon, the out-of-court statement at issue was a handwritten affidavit written at the crime scene, which the Supreme Court held was testimonial. In Hammon, when the police officers responded to a domestic disturbance call, they found the victim alone on the front porch. She appeared "somewhat frightened," but she told the police officers that "nothing was the matter." The victim hand-wrote an affidavit in response to police questions: "Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter." While the victim's statement in Hammon was less formal than the statement at issue in Crawford, the Supreme Court held that it was nonetheless testimonial. The questioning of the victim occurred in a room away from the accused and the officer used the victim's replies "for his investigation." In contrast to the frantic call in Davis, the Supreme Court found that there was no emergency in progress because Hammon remained in the kitchen, separated from the victim, and the victim told the police that she was fine. Therefore, viewed objectively, the sole purpose of the interrogation was to investigate, gather evidence, and learn "what happened."

In both these cases the Supreme Court reinforced the foundation of the Confrontation Clause: its guarantee that witnesses who "bear testimony" must be subject to cross-examination. The Supreme Court recognized that witnesses making statements during an ongoing emergency do not "bear testimony" because the declarant is neither acting as a witness nor testifying, but instead is seeking emergency assistance. Therefore, such statements are considered nontestimonial, and their admissibility is governed by state hearsay law.

What Questions Remain after Davis and Hammon?

First, how does the court determine the "primary purpose" of a police officer's questioning? Justice Thomas, the lone dissenter in Hammon, recognized that police officers serve two functions: they respond to emergencies and gather evidence for prosecution. By classifying testimonial statements based on one of these two functions, Justice Thomas characterized the Supreme Court as creating a "hierarchy of purpose," which will encourage police to gather statements before resolving emergencies and to exaggerate the exigency of the situation.

Second, what qualifies as an "ongoing emergency"? Although the Supreme Court determined that the Davis statement was nontestimonial, the emergency had actually ended by the time the victim made the statement. The caller stated that "Davis had just r[un] out the door ... [and] he was leaving in a car with someone else." Based on these two statements, it objectively appeared that no ongoing emergency existed. In determining, however, that an ongoing emergency was still in progress, the Supreme Court relied on the frantic nature of the call that described a bona fide threat as it was happening, which occurred in an unsafe environment in which the assailant had not yet been apprehended. The Supreme Court recognized, however, that police interrogation intended to assist a victim in an ongoing emergency can quickly evolve into evidence-gathering and that trial courts now must determine the nature of the police questioning. n8 Therefore, a fact-by-fact analysis is necessary to ascertain the primary purpose of the interrogation and when, and if, the primary purpose transforms.

Lastly, what is Davis's impact on Ohio v. Roberts and nontestimonial statements? Crawford made clear that for testimonial statements, the Sixth Amendment requires both unavailability and a prior opportunity for cross-examination, and, for nontestimonial statements, states have flexibility to develop their own hearsay law governing their admissibility. n9 Davis, however, does not clearly confirm that nontestimonial statements are excluded from Confrontation Clause analysis. Subtly, Justice Scalia in Davis wrote that "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." n10 Thus far, twelve lower state and federal courts have continued to apply Roberts's reliability analysis to nontestimonial statements. n11