Tomorrow’s Argument in Davis v. Washington

In 2004, the Supreme Court held in Crawford v. Washington that the use of “testimonial” statements at trial violate defendants’ Confrontation Clause rights unless: (a) the declarant is unavailable and (b) the defense had the opportunity to subject the statement to some form of cross-examination. Notably, the Court did not provide a comprehensive definition of the word “testimonial”; instead, it provided examples that included hearings, grand jury testimony, and police interrogations, explaining that “[t]hese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id. at 68.

On Monday, the Supreme Court will hear arguments in Davis v. Washington. The question in this case is when, if ever, statements made to 911-operators are inadmissible at trial because they violate defendants’ Confrontation Clause rights.

Jeffrey Fisher, who argued on behalf of the petitioner in Crawford, will argue on Davis’s behalf on Monday. James Whisman, a Senior Deputy Prosecuting Attorney, will argue on behalf of the State of Washington. Deputy Solicitor General Michael Dreeben will argue on behalf of the United States as amicus curiae in support of the respondent. The parties’ briefs are available here; the U.S. amici is available here.

In early 2001, Michelle McCottry – the girlfriend of petitioner Adrian Davis – called 911. She hung up before actually speaking with the 911-operator, prompting this operator to call back. McCottry answered, shouted at someone in the apartment, and then recounted the events that led to the original call. She reported that Davis, “using his fists,” violently jumped on her. The operator took additional information from McCottry, including Davis’s middle name and birth date. Officers reported to the scene and, after collecting additional evidence, arrested Davis for domestic-violence-related charges. After his arrest, however, Davis’s girlfriend failed to testify against him because she “could not be found.” Instead, at trial, prosecutors introduced evidence that included pictures of her bruises, expert medical opinions, and officers’ observations about the incident. Over the defense’s objection, prosecutors also introduced the tape of the 911 call, which both they and the trial court characterized as “excited utterances” falling within the exception to the hearsay rule.

Upon conviction, Davis appealed. The state’s intermediate appellate held that the introduction of the tape of the 911 call was proper, and the Washington Supreme Court agreed, reasoning that these calls should admitted on a case-by-case basis, as courts look to whether the victim sought to “bear witness” in contemplation of legal proceedings. In so holding, the Washington Supreme Court weighed in on the pronounced division among the jurisdictions that emerged after the U.S. Supreme Court’s opinion in Crawford: according to Davis’s petition for certiorari, seventeen other courts have similarly concluded that such calls should be evaluated on a case-by-case basis. Five jurisdictions have concluded that such excited utterances may never violate the Confrontation Clause. And eleven jurisdictions have concluded that statements to 911 operators by alleged victims reporting offenses are inherently testimonial, and therefore generally violate defendants’ Confrontation Clause rights if defendants do not have the ability to cross-examine their accusers. The Supreme Court granted certiorari to resolve this conflict.

Davis argues that in determining whether a statement is “testimonial” – which, because McCottry was unavailable to testify at trial and Davis did not have an opportunity to cross-examine her, is the key question – the relevant standard is whether the declarant reasonably could have contemplated that the statement would be used for law enforcement purposes. He contends that standard is met here, noting that the victim never asked for help during her 911 call and instead reported identifying information about him, as well as his alleged violent acts. Davis also notes that historically, the right to confront one’s accuser in particular rests at the heart of Confrontation Clause protections. Indeed, at the nation’s Founding, individuals often had a responsibility to report crimes to bailiffs in “hue and cry” reports. These reports, which Davis contends were analogous to today’s 911 calls, were not admissible because they were not subjected to cross-examination. Davis urges the Court to return to what he implies was the original understanding of the Confrontation Clause.

The state argues that the state of mind of the declarant—even in the form of a “reasonable person” test—should be irrelevant in a Confrontation Clause inquiry. The appropriate question is whether the statement was made during investigative procedures that closely resemble the historical abuses that led to the adoption of the Confrontation Clause, such as ex parte witness-interviews by prosecutors and other agents of the government who had an incentive to massage the questions and answers into a one-sided story. Such risks do not accompany 911 calls because 911-operators “are not investigative governmental agents bent on shaping testimony for use at trial.” The state also puts forth a textual argument, noting that “[t]he words of the Clause — ‘witness against him’–suggest that the Clause was intended to ensure confrontation as to actual trial testimony, and no more.”

The United States concurs with the state’s position that the relevant inquiry is whether emergency phone calls are analogous to the historical abuses that gave rise to the Confrontation Clause, such as ex parte witness-interviews. The United States asserts that such emergency phone calls do not resemble these historical abuses. Emergency-centered questioning is likely to be “exploratory and focused on assessing the needs of the moment, not a means of building a possible future case,” Further, while ex parte examinations have little probative value beyond what can be gained from live testimony, a panicked 911-call from a victim has independent value; such calls are offered without reflection upon the statement’s testimonial consequences. In this respect, the United States’s argument departs some from the state of Washington’s. While the state claims that the declarant’s state of mind is irrelevant, the United States argues that the court should look whether the questioner and declarant likely thought the conversation was testimonial.