| Note: This post was authored by Pete Patterson, a third-year student at Stanford Law School.Â
In Crawford v. Washington, the Supreme Court held that a witness’s out-of-court testimonial statement cannot be presented at trial against a criminal defendant unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. The Court left “for another day,†however, “any effort to spell out a comprehensive definition of ‘testimonial.’†This effort begins tomorrow with oral argument in Hammon v. Indiana, which presents the question of whether an oral accusation made to an investigating officer at the scene of an alleged crime constitutes a “testimonial†for purposes of the Confrontation Clause.
Richard D. Friedman of Ann Arbor, Michigan will argue for the petitioner that his accuser’s statements were testimonial and therefore should not have been admitted at trial. Thomas M. Fisher, the Solicitor General of Indiana, will argue for the respondent that these statements were not testimonial and therefore were properly admitted. Mr. Fisher will split time with Assistant to the Solicitor General Irving Gornstein, who will also argue (on behalf of the United States as an amicus curiae) that the statements were not testimonial. The parties’ briefs are available here; the U.S.’s amicus brief is available here.
The case will be argued in tandem with Washington v. Davis, which presents a similar question – whether an alleged victim’s statements to a 911 operator naming her assailant constitute testimonial statements subject to the Confrontation Clause restrictions enunciated in Crawford.
On February 26, 2003, Peru, Indiana police department officials went to the home of Amy and Hershel Hammon in response to a domestic disturbance report. Amy Hammon was on the front porch when the police arrived, and appeared to be frightened. Upon questioning by the officers, she claimed there was no problem but gave the officers permission to enter the home. Inside, the officers found evidence of an intense argument, with fragments of glass from a gas heating unit on the living room floor and flames protruding from the unit. Hershel was inside, and admitted to being in an argument with his wife while denying it became physical.
Back out on the porch, an officer again asked Ms. Hammon what had happened. This time, she informed the officer that she and her husband had indeed had an argument. Unlike her husband, she claimed it was violent – culminating with him shoving her head into the broken heater glass and punching her in the chest. At the officer’s request, Ms. Hammon completed a battery affidavit conveying these allegations.
The State charged Hershel Hammon with domestic battery. Because Amy Hammon refused to testify at trial, the only evidence presented against him was the officer’s account of Ms. Hammon’s oral accusation and the affidavit completed shortly thereafter. These were admitted under, respectively, the “excited utterance†and “present-sense impression†exceptions to hearsay. The defense did not present any evidence of its own; Hershel was convicted of domestic battery and sentenced to one year in prison, with all but twenty days suspended.
While Hammon’s appeal was pending, the U.S. Supreme Court issued its decision in Crawford. Crawford identified core examples of “testimonials†- prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations – but declined to offer a comprehensive definition The Indiana Supreme Court held that the Confrontation Clause permitted admission of Amy Hammon’s oral accusation, but not her affidavit. That court established a subjective test, holding that a statement is “testimonial†under Crawford (and thus must be subject to cross-examination) if it is “given or taken in significant part for purposes of preserving it for potential future use in legal proceedings.†Applying its new subjective test, the Indiana court affirmed, explaining that the police officer’s questions were posed to determine whether anything requiring police action had occurred and Ms. Hammon’s responses were given to convey basic facts about the situation. Neither was motivated by a desire to preserve evidence for later use in trial. Hershel Hammon filed a petition for certiorari, which the Supreme Court granted.
Hammon and Indiana offer competing definitions of “testimonial,†neither of which is the same as the definition established by the court below.
In Hammon’s view, the inquiry into whether a statement is “testimonial†should turn on the statement’s function. While declining to provide a “detailed or precise exegesis of what that function is,†he contends that criminal accusations made to a police officer are at the functional core of testimony. Furthermore, consideration of the speaker’s, not the questioner’s, perspective is critical: the speaker is the person whom the accused has a right to confront, and the best standard for determining whether the speaker’s statement is testimonial is whether a reasonable person in the speaker’s position would anticipate use of the statement in investigation or prosecution of a crime.
The categorization of testimony as an excited utterance is irrelevant to this analysis. The “[e]xcited utterance doctrine was not fashioned until many years after the framing of the Confrontation Clause, and thus cannot provide an exception to the constitutional rule.
Additionally, admitting statements made to investigating officers at the scene creates inappropriate incentives for law enforcement officials. The line between the preliminary task of securing the crime scene and the investigatory activity of preserving evidence for prosecution is subject to manipulation. Admitting statements made while securing the scene encourages investigating officers to delay or prolong that task and to purposefully avoid asking questions that resemble interrogation.
Indiana responds to this functionally based definition with its own historically based definition of “testimonial,†which it deems a “resemblance†test. Under that inquiry, extrajudicial statements are testimonial only when they resemble the forms of testimony that were produced by the abusive inquisitorial practices that gave rise to the Confrontation Clause. The history of civil-law practices, specialty and prerogative court practices, and Marian-statute practices (which were marked by formal, coercive, and structured settings) provide the relevant context for this inquiry. Modern-day analogues include affidavits, deposition transcripts, trial transcripts, grand-jury testimony, and responses to police interrogation.
Indiana stresses that the Court in Crawford used the term “interrogations†in a colloquial sense rather than the broader technical sense used in Miranda analysis. Colloquially, interrogations are the formal, coercive, and structured questioning portrayed in “good-cop, bad-cop†scenes in television and the movies. This distinction is critical to the “immediate-safety†corollary to the state’s “resemblance†rule: Testimonial statements do not include statements made in response to police actions or questions reasonably related to an objectively reasonable concern for the immediate safety of any persons or property. These interactions are not interrogations and hence not testimonial because they bear none of the hallmarks of formal interrogations. Police activity that is motivated by a desire to secure the safety and security of the public was not what the framers were concerned about when fashioning the Confrontation Clause. Indiana contends that its immediate-safety corollary extends to statements such as Ms. Hammon’s, even though it may initially appear that the statement was not necessary to defuse an actively confrontational situation. When police officers come to the scene of a domestic disturbance, it is often necessary to further question the participants to determine whether the danger has subsided.
Indiana attacks Hammon’s reasoning as unsupported by the text and history of the Confrontation Clause. Furthermore, the functional test and reasonableness standard advanced by Hammon would capture nearly all hearsay statements, an outcome clearly rejected by Crawford.
Finally, Indiana claims that domestic violence cases are easy to distinguish from the inquisitorial abuses sought to be avoided by the Confrontation Clause. In domestic violence cases, it is the defendant, rather than the prosecution, that is responsible for the absence of the accuser. The victim is often intimidated by the defendant or concerned that testifying would damage their relationship. The defendant also retains the right to call the victim to the stand at trial if cross-examination is desired. As a practical matter, prohibiting presentation of statements made by victims of domestic violence to investigative officers would make it much more difficult to bring spousal abusers to justice. Because such prohibition is not required by the text and history of the Confrontation Clause, it is inappropriate to place this additional burden on law enforcement officials.
The United States, which has filed an amicus brief on behalf of Indiana, provides an alternative definition of “testimonial†that hinges on whether the statement was a product of emergency questioning. The U.S. contends that testimonial statements display three central features that characterize the inquisitorial civil-law model: (1) clear conveyance to the declarant that the statement is for use in a legal proceeding; (2) likelihood that the situation will be exploited to shape the statement for future trial; and (3) and weak probative value making the statement an inferior substitute for live testimony. By contrast, the U.S. explains, statements – such as Amy Hammon’s – made to officials faced with an apparent emergency, and who ask questions reasonably necessary to resolve that emergency, display none of these characteristics. Therefore, they are not testimonial and thus not barred from use by the Confrontation Clause. |
