More on Davis/Hammon

Professor Brooks Holland of Gonzaga University School of Law has these thoughts on today’s decision in Davis/Hammon:

I largely share in Jeff Fisher and Richard Friedman’s descriptions of Davis and Hammon, at least insofar as Davis and Hammon explain the outcomes in those cases. I would like, however, to highlight Richard’s statement that “it is unfortunate that the Court’s opinion is theoretically confusing.” In Crawford, Chief Justice Rehnquist noted the practical importance of a reasonably clear rule of law in this area to thousands of prosecutors around the country. I would add defense lawyers and trial judges to that list. This need for doctrinal clarity could not be much more pressing than in the realm of domestic violence prosecutions, which have come to depend heavily on this sort of hearsay evidence. And at first blush, I simply do not know what defense lawyers, prosecutors and trial judges should make of the Court’s “primary purpose” test:
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 relevant to later criminal prosecution.
The multiple layers of possible confusion I see in this standard were clouded only further by Justice Scalia’s inclusion of numerous factual limitations and qualifications in both decisions without indicating whether and how changes to any of these facts might alter the results. The decisions provide many arguments, but few practical answers. At no point did the Court say, “This, in our law, is what it means to be a witness,” in terms that have anything to do with real-world criminal practice.
Maybe theoretical incompleteness is not always such a bad thing, as Richard suggests. And, lower courts surely will do their best to figure it all out. But the Court, it seems to me, simply has ducked when offered the chance precisely to explain what “testimonial” means, and instead has substituted highly fact-specific dispositions under a terribly general and for now unpredictable test. Chief Justice Rehnquist’s pragmatic concerns in Crawford continue. Truthfully, the Court may have given its clearest doctrinal insight in the three paragraphs addressing the question of confrontation forfeiture.