Testimonial? What the Heck Does That Mean?: Davis v. Washington - Lindsay Brewer

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 58 No. 3

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Testimonial? What the Heck Does That Mean?: Davis v. Washington

I. Introduction

The 2004 United States Supreme Court decision in Crawford v. Washington¹ reformulated the standard for determining when the admission of hearsay² statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment³ to the United States Constitution. The majority held that the Confrontation Clause operates to exclude out-of-court statements that are "testimonial" in nature, unless the person making the statement is unavailable to testify and the defendant has had an opportunity for cross-examination.⁴ Chief Justice Rehnquist, who concurred in the judgment, expressed concerns that the decision would lead to uncertainty in future criminal trials because the Court did not provide a definition of "testimonial."⁵ Davis v. Washing-ton⁶ and its companion case Hammon v. Indiana⁷ comprise the Supreme Court's attempt to begin shaping a workable framework for determining whether an out-of-court statement is "testimonial" or "nontestimonial." In Davis and Hammon the Court addressed the issue of whether certain types of statements made to law enforcement officers or personnel are "testimonial" and thus subject to the Confrontation Clause.⁸

II. Factual Background

In Davis v. Washington,⁹ the defendant, Adrian Davis, was charged with a felony for violating a domestic no-contact order that prohibited him from contacting his ex-girlfriend and petitioner in the case, Michelle McCottry. In support of its case against Davis, the State presented the testimony of two police officers who responded to a 911 call that McCottry made. These police officers could only testify that they observed that McCottry had injuries that looked recent and could not testify that Davis caused these injuries. McCottry did not appear at the trial, and the State's only evidence supporting Davis's guilt in causing the injuries was the transcript of the 911 call in which McCottry stated that it was Davis who hit her.¹⁰ Davis objected to the entry of the transcript on the grounds that it violated the Sixth Amendment's Confrontation Clause, but the trial court admitted it anyway, and a jury convicted Davis.¹¹ The Washington Court of Appeals and the Washington Supreme Court affirmed the outcome, reasoning that the portion of the 911 transcript that contained McCottry's identification of Davis as the person who attacked her was not testimonial and therefore not subject to the Confrontation Clause.¹² The United States Supreme Court affirmed.¹³

In the companion case, Hammon v. Indiana,¹⁴ Hershel Hammon was charged with domestic battery and a probation violation resulting from a domestic disturbance with his wife, Amy Hammon. The main witness in the case, Amy Hammon, did not appear at trial, and the State relied on the testimony of a police officer who responded to the disturbance and had taken a written affidavit of Amy's recollection of the events. The State asked the police officer to testify about Amy's statements on the night of the incident, and Hershel's attorney objected to the State's line of questioning on the grounds that there was no opportunity to cross-examine Amy. The police officer testified that Amy told him that during the course of an argument between herself and Hershel, Hershel had thrown her into some broken glass. The trial court allowed the testimony, noting that Amy's oral statements were permissible under a firmly rooted exception to the rule against hearsay, but the trial court did not address whether the statements were testimonial.¹⁵ The judge in the trial court found Hershel guilty of both the domestic battery and the probation violation.¹⁶

Both the Indiana Court of Appeals and the Indiana Supreme Court affirmed the relevant parts of this decision, upholding Hershel's conviction and holding that Amy's oral statements were not testimonial. The oral statements were admissible because they fell under a firmly rooted exception to the rule against hearsay. The Indiana Supreme Court further held that the written statements in the affidavit were testimonial and should not have been admitted, but that admission was harmless.¹⁷ The United States Supreme Court reversed and remanded, holding that Amy's written statements in the affidavit were testimonial, and therefore the Confrontation Clause required that the affidavit be excluded unless the defense had an opportunity for cross-examination.¹⁸

III. Legal Background

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."¹⁹ In Dowdell v. United States,²⁰ the Supreme Court noted that the Clause prohibits any testimony by witnesses that does not allow the accused to be face-to-face with the witness and able to cross-examine the witness.²¹ However, the Court noted that there are several exceptions to the literal language of the Clause, stemming from public policy and necessity.²²

A. The Confrontation Clause is Set Aside: 1980 - 2004

In Ohio v. Roberts,²³ the Supreme Court discussed the Confrontation Clause and whether it was constitutionally permissible for witness testimony from a preliminary trial to be admitted at the later trial where the witness was not present.²⁴ The Court reevaluated the relationship between the Confrontation Clause and the basic rule against hearsay evidence and its many exceptions.²⁵ The Court noted that hearsay evidence is defined as "'testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-[court] assert-er.'"²⁶ The Court concluded that the Confrontation Clause operates to exclude some hearsay evidence²⁷ and works with the rule against hearsay to safeguard the criminal justice system in that there is greater accuracy in the fact-finding process where witnesses are subject to cross-examination at trial.²⁸ This greater accuracy comes from (1) the reluctance of witnesses to lie against someone present at trial, (2) the punishment of perjury for lying under oath, and (3) the cross-examination's ability to sift through the truth of the recollection.²⁹ The Court indicated that the right to confrontation was a traditional part of trial that contributed to the meaningfulness of the proceedings.³⁰

The Court also noted that there are other interests that may override the necessity of confronting witnesses at trial.³¹ Under Roberts, the Court's general approach to determine how the Confrontation Clause works to limit the admissibility of hearsay evidence consisted of two separate tests.³² First, the prosecution must meet the rule of necessity and show that the declarant whose testimony it wishes to introduce is unavailable for trial.³³ To show that a witness is unavailable for trial, the prosecution must show that it made a good faith effort to get the witness to court.³⁴ In Roberts the Court held that the prosecution satisfied its burden in showing that the witness was unavailable because it subpoenaed her five different times at her parents' address, and learned from her parents that they had unsuccessfully tried to locate her for over a year.³⁵

Second, once the prosecution shows that a witness is unavailable, it must demonstrate that the testimony it wishes to introduce is reliable by meeting an indicia of reliability.³⁶ This reliability test is intended to guarantee that the written evidence presented is trustworthy.³⁷ The Court evaluated the reliability of the witness in Roberts by comparing the facts to California v. Green,³⁸ a case in which a witness claimed to have forgotten an earlier statement that he offered in a preliminary hearing, identifying the defendant as a drug supplier, and the prosecution attempted to introduce into evidence the transcript from that preliminary hearing.³⁹ Generally, the evidence meets this requirement when it falls within one of the "firmly rooted hearsay exceptions" or when it bears "particularized guarantees of trustworthiness."⁴⁰

In Green the Court held that the statements made at the preliminary hearing were admissible and satisfied the Confrontation Clause because they were given in a setting where the witness was represented by counsel, and there was an opportunity to cross-examine.⁴¹ The Ohio Supreme Court determined that the statements were reliable even if the witness was not actually cross-examined, so long as there was an opportunity to do so.⁴² The United States Supreme Court did not decide this issue because there was evidence that the declarant was cross-examined at the preliminary hearing, and therefore, the statements were reliable.⁴³

Also, the Court in Roberts, following the logic in Green, based a large portion of its analysis on the purposes behind the Confrontation Clause and noted that even if the literal language is not satisfied, the Clause's requirements are met where the purposes are satisfied.⁴⁴ Further, the Court declined to evaluate the actual reliability of the declarant's statements, holding that because counsel was afforded an adequate opportunity for cross-examination, there was sufficient reliability.⁴⁵

The Court's purpose-oriented application of the Confrontation Clause in Roberts noticeably weakened the literal right to Confrontation. Moreover, the rules against hearsay and the exceptions to those rules essentially swallowed the Confrontation Clause. The prosecution had little barrier to the introduction of testimony where the witness was not at trial and not subject to cross-examination. Under Roberts, the prosecution only had to show that it had made a good faith effort to find the witness for trial to satisfy its burden of showing that the witness was unavailable.⁴⁶ Further, it was not necessary for the accused to have the actual opportunity to...