Discussion Board — Davis and Hammon
We’re delighted to kick off the Davis/Hammon discussion board with these thoughts from Richard Friedman, who argued at the Court on Hammon’s behalf:
Well, for a guy who has just won his first Supreme Court case 8-1, I’m feeling pretty grumpy. Not about the one lost vote (and actually, I’m happy that the dissenter was not Justice Ginsburg, because I would not have liked the appearance of all the male justices voting against the one female justice in a domestic violence case). I’m very unhappy about the result in Davis, some of the language in the opinion, and the perverse incentives that are going to be created.
Theoretically, the opinion is rather confusing. It does say, in footnote 1, that the subject of analysis is the declarant’s statements, rather than the interrogator’s questions, and it makes clear that a statement need not be in response to interrogation to be testimonial, but the entire focus of the Court is on the purpose of the questioner. This is the wrong perspective, for reasons I’ve elaborated elsewhere, and it is one that is easily manipulable, because police and 911 officers will be able to say, “I was trying to resolve an exigent situation, not prepare evidence for litigation.” And we will soon be seeing lots of websites advising them what to ask to do just that, demonstrating that of course the investigator has production of evidence in mind from the very beginning.
The opinion gives police and 911 operators a terrible incentive – get all the critical information – the commission of the crime and the identity of the perpetrator – at the very beginning, before resolving the situation and before separating suspected victim and suspected assailant. Courts are likely to treat Hammon as many treated Crawford, as a nuisance that has to, and can, be overcome by reciting certain words. But at least Hammon makes clear that some of the more egregious cases of accusations made to the authorities, routinely allowed before Crawford and even by many courts after Crawford, are really off bounds.
1. If you really think the standard is unworkable, then perhaps you agree with Justice Thomas’s dissent? Or do you not find footnote of the majority opinion to be convincing?
2. The Court seems to make clear that “No ‘witness’ goes into court to proclaim an emergency and seek help.” There is a clear distinction between describing past crimes and describing current circumstances to procure police assistance.
3. The analysis does seem to focus on the questioner, once the questioning is clearly for the purposes of trial. But the distinction in point 2 is there. It seems like it depends on how aggressive the 911 operator is.
4. I doubt that the perverse incentives you suggest are there are there. 911 operators will have more incentive to get the facts relevant to providing help, i.e., the most trustworthy statements. That sounds like the right, result, no?
5. Assuming they survive the attack, these victims can testify as to the less trustworthy statements, lending those additional statements credibility by their mere presence in court. So, what is the problem? This decision seems to have struck a balance that convinced nearly everyone.
Comment by Commentator — June 19, 2006 @ 2:00 pm
footnote 5, that is
Comment by Commentator — June 19, 2006 @ 2:00 pm
Cheer up, Richard. This is as big a win for the defense as you could reasonably have expected. You can exclude virtually all witness statements in police reports taken after the emergency is over, and you even have a basis for arguing that part of a 911 call may be excludable (bench opinion pp. 13-14).
I agree that the focus should be on the witness and not on the questioner. “The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements.” The statements are the focus; the interrogation is the context.
In the first full paragraph on page 12, the Court does focus on Ms. McCottry and gets halfway down the paragraph before mentioning the 911 operator. One does have to consider the questions when discussing answers, but the focus seems to be correct here.
Comment by Kent Scheidegger — June 19, 2006 @ 2:24 pm
I don’t think todays decision in Davis or Hammon changes that much of the law as it stood. The only part aht worries me is the distinction that the Court makes regarding “emergency situation.” what does that mean? Does this decision gut the excited utterance hearsay exception in criminal cases? It appears so
Comment by percuriam — June 19, 2006 @ 3:08 pm
KS, I’m not sure how the “emergency situtiation” classification “guts” the excited utterance exception. Do you mind expounding a bit?
As I see it, Davis appears to actually do the opposite– elevating the importance of that exception to the hearsay rule. Since responses during on-going emergencies are now likely to be termed non-testimonial statements, such statements will be subject to the old Ohio v. Roberts test. That is, they will come into evidence if they fall into a firmly rooted hearsay exception or if they bear particularized guarantees of trustworthiness. The excited utterance exception is a firmly rooted hearsay exception (White v. Illiniois.) Therefore, that exception gained (a little more) relevance today– not less.
Had the court ruled the other way, that would have made the excited utterance exception (slighly) less relevant. Because then, there would have been a larger class of circumstances that (1) would qualify as excited utterances, but (2) still would have been barred from evidence by the Confrontation Clause.
Comment by bayblogger — June 19, 2006 @ 3:38 pm
I agree that Davis and Hammon probably make the excited utterance more clearly an “exception” to the Confrontation clause.
Two other points: First, the case expands on the possibility that a forfeiture provision such as 804(B)(6) would be constitutional. It has a somewhat longer treatment than the brief mention of it in Crawford. I don’t see anything in the opinion suggesting that this issue was argued below. All we know is that Hammond’s wife was not at the trial, but not why. While certainly not a holding on the issue of forfeiture, it almost seems to be an invitation to the Indiana courts to explore whether Hammon had procured his wife’s absence and on that basis uphold the conviction.
Second, footnote 4 repeats that “[w]e overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements. Does “restoring” mean “replacing” or simply “adding to (or back)”? After Crawford, evidence teachers were divided on whether any of Roberts survived (though a probably a majority thought it did). The “restoring” language is quite ambiguous, but if Roberts survived in part (i.e., either “firmly rooted” or “particularized … trustworthiness” is also required) one would think the Court would have been clearer on the point. (But, perhaps Scalia didn’t think he had the votes to make this point clear, and simply is putting it off for another day).
Comment by PLM — June 19, 2006 @ 4:53 pm
IMHO, Davis should be known as the 88-Crime tip exception to the Confrontation Clause. You might say, no, there’s a difference between a 911 phone call versus an anonymous call for a reward, citing JL v. Fla. Really, I’d reply, What difference? Well, you’d respond, It’s the difference between what’s reliable versus what’s unreliable. I’d conclude, Welcome back Roberts v. Ohio!
At least Thomas can see that the gloss ‘testimonial’ is merely being substituted for ‘reliable.’
Mercy!
Screwloose
Comment by Screwloose — June 19, 2006 @ 4:59 pm
I’m not sure where else you have outline your position but I don’t see how the court could have avoided looking at the intention of the interrogator. If the courts allowed statements the police collected for testimonial purposes but where the speaker had non-testimonial intentions (resolving an emergency) to escape the bar on hearsay it would create even more troubling incentives. For instance police could continue to collect evidence for court merely by encouraging the belief that danger was ongoing, e.g., telling a dv victim, ‘no we won’t drive you to your sisters we are going to leave you here with your husband.’ Additionally, your worry about the police incentive not to resolve the situation still applies, especially if rules/deciscions discourage the police from lying to create the impression of an emergency.
I’m also not totally clear about your worry on police incentives. You suggest that police would start delyaing the resolution of situations in order to collect evidence. While I doubt that this will be the case, human decency, public pressure and simple concern for your own life argue against this practice, even if it were to happen the current system appears to be self-correcting. If in fact one had good reason to believe that police officers were more concerned with gathering evidence than resolving the situation the testimony would be deemed testimonial and thus not admissible. Thus, the focus on police intent is actually a safegaurd against a rule encourage the police to leave situations unresolved or deceptively suggesting they have not been resolved.
Also, I don’t know much about statements made to undercover officers but how would a rule focusing soley on the speaker’s intent work in these situations? In particular would such a rule allow the police to stage complex operations to make a small fish believe he was the target of a hit for squealing in order to elict non-testimonial statements about hits his boss has ordered?
Comment by logicnazi — June 19, 2006 @ 8:18 pm
The Roberts Court in Davis imports a 4th amendment exception ["exigent circumstances"] and a 5th amendment exception["custodial interrogation"] into the 6th amendment’s confrontation clause guarantees for the first time. Exceptions swallowed the rule under the 4th and 5th amendments, so can be expected under the 6th now, too. Penumbras doctrine being utilized to constrict the Bill of Rights. Watershed case for the prosecution in criminal cases.
Screwloose
Comment by Screwloose — June 20, 2006 @ 9:50 am
Well, you’d respond, It’s the difference between what’s reliable versus what’s unreliable.
Don’t you think you’re straw-manning a bit here? “Reliability” does not explain the “difference between a 911 phone call versus an anonymous call for a reward”– and I’m not sure who would argue that it does. What explains the difference between these two circumstances is the likely purpose of the actors– and how closely that purpose matches up with the original ills the Confrontation Clause was intended to address (as well as the clause’s language). The argument goes, in part: When the purpose is to address an ongoing emergency, the person on the other end of the call is not acting as a “witness.” When the purpose is to gather information to assist in an investigation or at trial, the declarant is a “witness.” I have problems with this position, but it’s not fair at all to say it boils down to a Roberts-style reliability test. Instead, it boils down to an (incomplete) originalist-textualist analysis.
imports a 4th amendment exception ["exigent circumstances"] and a 5th amendment exception["custodial interrogation"] into the 6th amendment’s confrontation clause guarantees for the first time
Interesting observation. The second half of it has been made by others, like Prof. Amar at Yale. You don’t explain why this sort of inter-textual consistency is such a bad thing. The word “witness” appears in the 5th and 6th amendment– why is it not a good thing to have the same word in the same text interpreted similarly?
Comment by bayblogger — June 21, 2006 @ 12:40 pm