We’re delighted to kick off the Davis/Hammon discussion board with these thoughts from Richard Friedman, who argued at the Court on Hammon’s behalf:
Well, for a guy who has just won his first Supreme Court case 8-1, I’m feeling pretty grumpy. Not about the one lost vote (and actually, I’m happy that the dissenter was not Justice Ginsburg, because I would not have liked the appearance of all the male justices voting against the one female justice in a domestic violence case). I’m very unhappy about the result in Davis, some of the language in the opinion, and the perverse incentives that are going to be created.
Theoretically, the opinion is rather confusing. It does say, in footnote 1, that the subject of analysis is the declarant’s statements, rather than the interrogator’s questions, and it makes clear that a statement need not be in response to interrogation to be testimonial, but the entire focus of the Court is on the purpose of the questioner. This is the wrong perspective, for reasons I’ve elaborated elsewhere, and it is one that is easily manipulable, because police and 911 officers will be able to say, “I was trying to resolve an exigent situation, not prepare evidence for litigation.†And we will soon be seeing lots of websites advising them what to ask to do just that, demonstrating that of course the investigator has production of evidence in mind from the very beginning.
The opinion gives police and 911 operators a terrible incentive – get all the critical information – the commission of the crime and the identity of the perpetrator – at the very beginning, before resolving the situation and before separating suspected victim and suspected assailant. Courts are likely to treat Hammon as many treated Crawford, as a nuisance that has to, and can, be overcome by reciting certain words. But at least Hammon makes clear that some of the more egregious cases of accusations made to the authorities, routinely allowed before Crawford and even by many courts after Crawford, are really off bounds.
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