More on Today’s Opinion in Davis/Hammon

By Kevin Russell
on Jun 19, 2006 at 2:28 pm

Timothy O’Toole has these thoughts on today’s opinion in Davis and Hammon [Note — a few typos in the original version have been corrected]:

All in all, my first impression is that I’m feeling substantially less grumpy than Professor Friedman; I think that the Hammon/Davis outcomes represent a pretty good day for the Sixth Amendment and for having trials in courtrooms rather than living rooms. These obviously weren’t quite the outcomes we were hoping for, but they were pretty close. A number of things jump out at me, although the thing that strikes me first is the level of consensus. I didn’t get the feeling from oral argument that these were going to be 8-1 and 9-0 cases, particularly Davis. I think the amount of agreement stems in large part from just how careful and limited the opinion was. To that extent, it stands in pretty sharp contrast with Crawford, which seems designed to stand out as an expansive watershed moment in constitutional jurisprudence. Next to Crawford, Davis and Hammon seem a lot more pedestrian, interesting but unlikely to be engraved in Supreme Court history as Crawford clearly was.

I’ll start with what I like about the opinion and then move on to what I don’t. I like the fact that the Court’s main focus in determining whether a statement to police is testimonial appears to be on whether the incident was over and whether the statement was describing a “past crime” to police. That was NACDL/PDS’s focus throughout the case, and I think after today it will be very tough for the government to escape confrontation for statements made to police officers after the incident has ended. I also like that fact that Hammon, where the questioning took place at the scene, would seem to place real limits on when an incident ends, and the discussion in Davis about the 911 call becoming testimonial at some point moves that limit back even sooner. In my view, it will be tough to expand the limits of non-testimonial statements to police much beyond the specific facts of Davis after today’s opinion.

That is not to say that the government won’t try. My guess is that one likely result of today’s opinion is that police investigations will focus a lot more on getting statements during the 911 call rather than having them provided by the responding officer. Today’s opinion seems designed to nip this in the bud by rejecting a view of testimonial statements that allows the government to evade confrontation through the use of substitute mechanisms. That was always our biggest criticism of the cases that relied on formality as the lynchpin in determining testimonial statements – it makes the Framers look so naïve as to adopt a provision that could be so easily circumvented. Today’s opinion places enforceable limits on the government’s ability to use 911 calls as a form of dial-in testimony when it explains that “we do not think it conceivable that the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn testimony of the declarant . . . .” I think that footnote 1 also says much the same thing about “volunteered” accusations to the police, and thus will prevent the sort of free-form 911 interviews that might also be a way for the government to sneak around confrontation for 911 calls. To the extent the government now tries to use 911 calls as the forum for obtaining witness testimony without confrontation, these passages should serve as a warning.

In fact, that was the point, I think of the Court’s analysis of other factors to determine that the statement at issue in Davis was not testimonial. The Court was drawing a pretty clear line around the use of 911 calls. It wasn’t just that the incident was on-going, it also was that the statements reflect an on-going emergency and the questions were designed to resolve the emergency. While the Court allowed a question about the assailant’s identity, I think much questioning beyond this is going to be too much and the Court’s opinion seems to say that when it suggests that the conversation itself in Davis at some point spilled over into a testimonial statement after the operator began to pose a “battery of questions.” As I said, I think footnote 1 gets at the other end of the problem, where the operator poses open-ended questions designed to elicit investigative facts, even though the speaker seems to be acting more independently. Those types of interviews too should be pretty closely reigned in by today’s opinion.

My main worry about today’s opinion is that it still leaves things a bit fuzzier than we would have liked by engaging in a multi-factored analysis. I agree completely with Professor Friedman that that analysis focuses on the wrong question, the motivation of police officers, and one that is likely to produce some confusion. I also agree that it leaves a little – but still too much – wiggle room for lower court judges on this issue, who are inclined to try cases by hearsay as they did throughout the Ohio v. Roberts era.

But I’m still hopeful that that confusion can be cabined. We’ll see how clear the boundaries around non-testimonial statements turn out to be, but they are much clearer than they were yesterday. In fact, I think the non-testimonial statements window the Court left open is so narrow that the real important part of the opinion is the closing discussion about forfeiture rules. I like the fact that the Court seems to demand a world in which witness intimidation questions are resolved based on evidence rather than stereotype. That’s a world that will properly protect all the important interests at stake. My view is that forfeiture issues rather than the battle over testimonial statements will be where the most interesting litigation in this area takes place after today.