More on Davis/Hammon

Jeff Fisher, who argued the case on behalf of petitioner Adrian Davis, has these thoughts on Davis and Hammon:

If Rich Friedman won and feels grumpy, I guess its somewhat fitting that I lost and dont feel so bad. I, of course, am terribly disappointed that I was unable to get a good result for my client, but I dont think the Courts joint opinion today necessarily portends a seriously wrong turn in the law.

The Court held in Crawford v. Washington, 541 U.S. 36 (2004), that testimonial statements of absent witnesses ordinarily may not be introduced against defendants in criminal cases. A great theoretical debate has emerged concerning what amounts to a testimonial statement, but what matters most to courts, lawyers, and defendants is what in practice constitutes a testimonial statement.

In practical terms, all the Court told us in Crawford was that the declarants statement in that case made during police questioning at a police station several hours after a stabbing incident was testimonial and that [a]n 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. As a description of outer boundaries, this quoted passage left the status of a great mass of statements unresolved.

Today, the Court tightens the vise, saying that the statement to a responding police officer in Hammon is testimonial but that part of the statement to a 911 operator in Davis was not. So, at least in terms of statements to law enforcement agents, we have new boundaries. The key question for courts and lawyers is whether either of these cases is close to the constitutional line, so that most statements in the still considerable undecided mass are either testimonial or nontestimonial. We will, of course, have to wait for another Supreme Court decision probably in the next few years to know for sure, but my reading of the joint opinion is that the Court thinks most of the statements in between Davis and Hammon are testimonial.

The first clue is the Courts own descriptions of the cases: it says that deciding Hammon is a much easier task than deciding Davis. The Court also repeatedly emphasizes that the declarant in Davis was speaking about events as they were happening, (emphasis in original), whereas the declarant in Hammon described what had already happened. (I argued in Davis that because the assault itself was no longer happening when the 911 call was made, all of the declarants statements described past events, but the Court viewed the scope the event[] more broadly than I did, so as to include the declarants description of Davis fleeing the scene.) Assuming this temporal inquiry is a critical dividing line, most fresh accusations will be testimonial, since it is more common (in the reported cases, at least) for people to report crimes after they happened than while they are happening. As if to underscore that as [the events] were happening really means as [the events] were happening, the Court added (at page 14) that it could readily be maintained that the second half of the 911 call in Davis itself after the declarant described Davis dr[iving] away from the premises and the operator proceeded to pose a battery of questions was testimonial. (A transcript of the entire call is available in the Joint Appendix, for those who wish to look at it.) Finally, the Court emphasized that the testimonial or nontestimonial status of a statement cannot be manipulated by courts or law enforcement because the constitutional inquiry does not turn on whether or what types of questions officers ask, see fn 1, or assessing other law enforcement actions upon receiving a report of criminal activity. While I share Richs concern that these assurances can be viewed as unduly optimistic (or naïve), they make sense if, once again, we take the Courts opinion to mean that a declarants report is testimonial unless the incident is still going on. That circumstance is truly, as the Court says, essentially beyond policy control. fn. 6.

In various forums, I have likened the state of current confrontation law to the law concerning other constitutional criminal procedure provisions shortly after incorporation. We have had over thirty years to develop doctrine regarding basic Fourth and Fifth Amendment protections, as well as other Sixth Amendment protections. But because we took a wrong turn with respect to the Confrontation Clause, we are essentially only two years into the enterprise of meaningfully applying the Confrontation Clause to the states (and to federal and state practices that arose to take advantage of the now-abolished Roberts framework). This first post-Crawford round of confrontation decisions does not tell us too much; it does not even provide clear guidance concerning when all fresh reports to law enforcement are testimonial. But I think that, fairly read, the lower courts should take away from todays opinion that the Court is serious about the right to confrontation and that statements describing past incidents to law enforcement agents cannot serve as a substitute for live testimony at criminal trials.