After Crawford double-speak: "testimony" does not mean testimony and "witness" does not mean witness.

• Author: Ross, Josephine

1. INTRODUCTION: DOMESTIC VIOLENCE CASES AFTER CRAWFORD

   Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with [a] jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

   --Justice Scalia's majority opinion in Crawford v. Washington (1)

   Two years after Crawford v. Washington created a wave of uncertainty regarding the significance of the newly defined Confrontation Clause, the Supreme Court issued a decision defining the terms "testimony" and "testimonial" that was intended to clarify Crawford's ambiguities. The new case, Davis v. Washington (Davis/Hammon), (2) puts to rest some of Crawford's ambiguity, but does not resolve Crawford's central contradiction between its desire for more face-to-face confrontation and its limited reading of the scope of the Confrontation Clause.

   Before Crawford, domestic violence cases had evolved in many states to the point that the government was presenting its case without testimony from the alleged victim or other eyewitnesses. (3) In lieu of the complainant, police officers would testify to what the complainant had told the police at the scene. (4) In many situations, the 911 call or the complainant's statement to police responding to the scene was the only evidence against the defendant. (5) These statements were labeled "excited utterances" or "spontaneous declarations" by prosecutors and judges, and were thus admissible as an exception to the hearsay rules. (6) Constitutional analysis before Crawford determined that once the hearsay rules were satisfied, so was the Sixth Amendment right to confront witnesses. (7) As a result, the government did not need to worry about obtaining the alleged victim's cooperation or summoning the witness to court. Men and women could be arrested, tried, and convicted by an accusation that was never subject to oath or cross-examination.

   Crawford restored the constitutional right to confront witnesses from the rules of evidence, thus revitalizing the Confrontation Clause. (8) In so doing, the decision threatened to end the recent practice of relying on out-of-court statements rather than eyewitness testimony at trial in domestic violence prosecutions. In Crawford, the Supreme Court determined that even if a statement is admissible under a state's evidentiary rules, the statement may violate the Confrontation Clause if there is no opportunity to cross-examine the witness. (9) The Court announced that the Confrontation Clause guarantees live witness testimony unless the witness is unavailable, in which case only prior testimony subject to cross-examination is permitted. (10)

   Criticism of Crawford's ambiguity abounds. (11) One judge in New York put his frustration into writing when he was asked to admit an emergency call to the police under the excited utterance exception:

   Are such calls testimonial in nature, or not? Do they constitute "police interrogation" (because the caller answers questions posed by the police operator), or not? May they be admitted into evidence under various traditional exceptions to the hearsay rule? Or would their admission violate the Sixth Amendment? The Crawford decision is rich in detail about the law of England in the 16th, 17th and 18th centuries, but as the Chief Justice points out--it fails to give urgently needed guidance as to how to apply the Sixth Amendment right now, in the 21st century. (12) To resolve the uncertainty, the United States Supreme Court consolidated two cases, Davis v. Washington and Hammon v. Indiana, and issued one decision officially known as Davis v. Washington that resolved both appeals. (13) Hammon questioned whether statements made to police responding to the scene of an alleged act of domestic violence are admissible at trial through the police officer when there is no opportunity to cross-examine the person who made the statements. (14) Davis challenged the admissibility of 911 calls accusing a person of a criminal act without the opportunity to cross-examine the person who made the out-of-court allegation. (15) Together, these cases covered the typical methods employed by the state to successfully prosecute domestic violence cases without the cooperation of a complaining witness, pitting the right to confront one's accusers against the expanded use of the excited utterance hearsay exception. Thus with Davis/Hammon, the Court had an opportunity to reaffirm Crawford's preference for live witnesses at trial over hearsay accusations. This Article will discuss in-depth how the Court approached this opportunity.

   Section II of this Article presents a domestic violence case handled by students at Boston College Law School before Crawford was decided to illustrate how the "excited utterance" exception worked in practice. The alleged victim did not appear, and the government attempted to base its case on statements made at the scene. The case helps explore the importance of cross-examination and the concept of "witness," concepts at the heart of the Confrontation Clause.

   Section III explains how Crawford recognized the need to end hearsay-based prosecutions but failed to deliver a ruling that would ensure its demise. Crawford pulled in two inconsistent directions: one that required accusers to come to court to testify; and the other that limited the scope of the Confrontation Clause to exclude many witnesses whose out-of-court accusations form the proof of criminal wrongdoing.

   Section IV analyzes the recent Supreme Court case of Davis/Hammon that applied Crawford's Confrontation Clause jurisprudence to domestic violence prosecutions. On the one hand, the Court's decision changed the practice in the trial courts to prevent a large range of hearsay from substituting for live testimony. On the other hand, the Court's reasoning was inconsistent and may be read as a road map for police and prosecutors to circumvent the confrontation requirement in domestic violence cases where statements fit the "excited utterance" doctrine. Ultimately there was a contradiction in Davis/Hammon, just as there was in Crawford. The Court wanted more confrontation but defined the scope of the Sixth Amendment right to confront witnesses in a way that allowed many witnesses to accuse others without testifying in person. (16)

   Section V examines how other scholars have viewed the values and contours of the Confrontation Clause post-Crawford. Unlike previous scholarly works, this Article lays out a definition of "testimonial" that examines the role testimony had at trial rather than trying to decipher what occurred when the statement was originally uttered out-of-court. The Sixth Amendment is a trial right, but the Court insists on treating the Amendment as a question of police procedures more akin to Fourth and Fifth Amendment analysis. The Court misses the real meaning of the Sixth Amendment right of accused persons to confront the witnesses against them. Currently, post-Crawford jurisprudence threatens to drift away from an understanding of how evidence operates within the courtroom and may create new legal fictions so that "witness" does not mean witness and the term "testimonial" has little to do with testimony in court.

2. A DOMESTIC VIOLENCE CASE BEFORE CRAWFORD

   Indeed, one would shudder at the prospect of a criminal prosecution in which the evidence for the prosecution consisted solely of a police officer reading his or her report into the record. (17)

   1. THE FACTS OF THE CASE

      Let me start with a real case in which the government planned to use the excited utterance exception to the hearsay rule, a case I supervised as a professor in the Boston College Criminal Justice Clinic. The police report related what had occurred when the police arrived on the scene: "Upon arrival spoke to [the alleged victim] who stated he has a child with [the suspect]." The alleged victim told police that the suspect

      did knock on victim's door and at this time [the alleged victim] did step out of his apartment, and while talking to [the suspect] she attempted to stab him with a Black Handle Kitchen Knife, and after missing she did scratch him on the left side of the face causing a cut. (18) The report went on to explain that the alleged victim refused medical attention and told police that the suspect threw the knife over the front porch railing. The police found the knife and brought a complaint for assault with a dangerous weapon. (19)

   2. THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULES

      In our case, if the alleged victim did not appear at trial to testify against the accused, the government would proceed anyway, asking the police officer to repeat the statements made at the scene under the excited utterance exception to the hearsay rules.

      An excited utterance, sometimes referred to as a spontaneous utterance or spontaneous declaration, is a hearsay exception to the rules of evidence that generally forbids out-of-court statements from being introduced at trial. (20) To be admissible as an excited utterance, the government must show that the statement was made under "external circumstances of physical shock" before reasoned reflection was possible. (21) One Massachusetts case from 1994 described the purpose of the excited utterance:

      The excited utterance exception to the hearsay rule "is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties ... so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy ... and may therefore be received as testimony to...