INTRODUCTION I. THE JURISPRUDENTIAL FRAMEWORK: DAVIS AND "ONGOING EMERGENCY" II. CONFRONTATION'S PURPOSES A. Why Do We Have a Confrontation Clause? B. Does the Davis Test Serve Confrontation's Purposes? III. THE VIOLENT-PERPETRATOR-AT-LARGE PROBLEM A. The Majority View B. The Minority View C. The Majority View Versus the Minority View D. An Approach Faithful to Davis and to Confrontation's Purposes IV. FROM FIDELITY TO ADMINISTRABILITY CONCLUSION INTRODUCTION
Recent judicial and scholarly treatment of the Confrontation Clause (1) pays remarkably little attention to confrontation's purposes. This would not be particularly problematic if the confrontation right reduced to a mechanical rule. If, for example, the clause meant simply that out-of-court statements are inadmissible at trial whenever the declarant (2) is not on the stand and subject to cross-examination, courts could easily administer the right without knowing anything of its purposes. But the clause has never been reduced to such a clean-cut categorical, and courts administering the right have generally had to balance competing interests rather than adjudicate by formula. (3)
The problem with interest balancing is that it risks being unprincipled, and that problem has plagued the U.S. Supreme Court's confrontation jurisprudence. The bulk of that jurisprudence owes to the twenty-four-year reign of Ohio v. Roberts, (4) under which a hearsay statement could be introduced at trial whenever the declarant was unavailable and the statement had "adequate indicia of reliability." (5) Because there is no principled way to determine whether a statement has adequate indicia of reliability, (6) the Roberts test produced inconsistent results. (7)
The Court has recently tried to resolve the problems of unprincipled approaches and inconsistent results in two cases, Crawford v. Washington (8) and Davis v. Washington. (9) Those cases discard the Roberts test (at least as concerns the Confrontation Clause), and hold that the clause (1) applies only to "testimonial hearsay" (10) and (2) bars admission of such hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (11)
Though in Crawford the Court offered examples of "core" testimonial statements, (12) it did not comprehensively define the term "testimonial." (13) In Davis the Court again declined to define testimonial and instead offered a test to apply to a narrow class of statements--those resulting from police interrogation in response to recent or current emergencies--to determine when such statements are testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (14) So articulated, this test ultimately (though unintentionally) seems to return confrontation jurisprudence to an indeterminate Roberts-like interest-balancing regime. It has not taken long (as a quick survey of post-Davis lower court opinions shows) to learn that there is no easy way to define an "ongoing emergency"--the part of the test on which lower courts have focused. Thus, courts evaluating statements arising from recent or current emergencies have been left to balance an array of factors and decide whether those factors tip toward the existence or nonexistence of an ongoing emergency. The main difference between the Roberts and Crawford/Davis regimes, then, is that instead of passing on an amorphous concept of reliability, courts now must pass on the amorphous concept "testimonial."
Compounding the problematic indeterminacy of "testimonial" is the Court's failure to use confrontation's purposes to guide this new interest-balancing regime. The Crawford Court seemed to believe that it was erecting a formal and mechanical rule whose application does not turn on confrontation's purposes. Indeed, the Court seemed to think that those purposes are unimportant to protecting the right since confrontation "is a procedural rather than a substantive guarantee," (15) and if the required procedure is clear enough then the Court's job is done.
The required procedure is not clear after Davis, however, since the concept of "testimonial" is unclear and as a result it is unclear when the right applies. Determining whether a statement is testimonial requires judgment, and one can exercise good judgment only if one knows what he is judging and what purposes his judgment is meant to serve. In braving this new path in Crawford and Davis the Court has said almost nothing of confrontation's purposes, and as a result its confrontation jurisprudence is, once again, adrift and rudderless.
We are left then without an easily administrable test and without a purposive framework to guide that test. These are serious problems. This Note addresses them. My broader goal is to show the need to craft an administrable approach to protecting the confrontation right and the need to consider (and the usefulness of considering) confrontation's purposes in crafting that approach. My narrower goal--and the means by which I hope to meet my broader goal-is to suggest a solution to a particular problem that has divided lower courts and which lays bare some difficulties in the Davis test. That problem--which I will call the violent-perpetrator-at-large problem--is captured in this question: When an allegedly violent perpetrator is at large, is there an "ongoing emergency" that renders a declarant's statements to law enforcement agents nontestimonial? I conclude that confrontation's purposes, the interest in administrability, and the Davis test itself (16) suggest that the answer to this question is generally "no" and that a court must evaluate the statements themselves (and in some cases the questions that led to such statements and-when necessary--the circumstances surrounding the statements) to determine whether the statements are given primarily to provide evidence for prosecution or are instead given primarily to seek emergency aid. I also conclude that most courts that have confronted this issue have wrongly focused on the existence or nonexistence of an emergency instead of focusing on the statements. A focus on emergency risks being unprincipled and difficult to administer, and tends to disserve Davis and confrontation's purposes. Arriving at these conclusions takes some steps. I begin with Davis.
THE JURISPRUDENTIAL FRAMEWORK: DAVIS AND "ONGOING EMERGENCY"
In Davis v. Washington, the Supreme Court reviewed two consolidated cases, State v. Davis (17) and Hammon v. State. (18) In the former, declarant Michelle McCottry called 911 about a domestic disturbance. (19) The 911 operator asked, "What's going on?" and McCottry answered, "He's here jumpin' on me again." (20) The operator asked McCottry the name of her attacker and whether he was using weapons or had been drinking. McCottry identified her ex-boyfriend Adrian Davis as her assailant and said that he was using fists, had not been drinking, "had just r[un] out the door" after hitting her, and was leaving in his car. (21) The operator told McCottry that police were coming and that they would first check the area for Davis then come talk to her. Officers arrived within four minutes to find McCottry in a "shaken state" with "fresh injuries on her forearm and her face," as she frantically gathered her children and belongings to leave the home. (22) Davis was soon apprehended and was later tried for violating a domestic no-contact order. McCottry did not testify. The two responding officers testified but could not say who or what caused McCottry's injuries. To identify the injurer, the State introduced the tape-recorded 911 call, over Davis's objection. The jury convicted him.
In Hammon, two officers arrived late at night to Hershel and Amy Hammon's home, in response to a reported disturbance. (23) The officers found a frightened-looking Amy on the porch. Amy said nothing was the matter and allowed them in the home. Hershel--already inside--told the officers that "he and his wife had been in an argument but everything was fine now and the argument never became physical." (24) One officer went in the living room to talk to Amy, while the other stayed with Hershel. Hershel tried to join Amy's conversation but was prevented from doing so. Amy filled out and signed a battery affidavit, accusing Hershel of beating her, and Hershel was later tried for domestic battery and violating his probation. Amy did not testify but--over Hershel's objection--the affidavit was admitted and the interviewing officer testified as to her statements that she and Hershel got in an argument, that it became physical, and that he broke several items, shoved her, and punched her in the chest.
The Supreme Court offered a test for determining whether statements of the sort before it in Davis and Hammon are testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (25) The Court concluded that McCottry's statement identifying Davis as her assailant was nontestimonial because "the circumstances of [the] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency." (26) The Court emphasized four differences between the...