LOCATION:U.S. Court of Appeals for the Ninth Circuit
DOCKET NO.: 05-5705
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: Supreme Court of Indiana
CITATION: 547 US 813 (2006)
GRANTED: Oct 31, 2005
ARGUED: Mar 20, 2006
DECIDED: Jun 19, 2006
Irving L. Gornstein – argued the cause for Respondent
Richard D. Friedman – argued the cause for Petitioner
Thomas M. Fisher – argued the cause for Respondent
Facts of the case
Hershel Hammon was charged with domestic abuse after police responded to a call from his house. When they arrived, Hammon’s wife told police that her husband had beaten her. While Mrs. Hammon did not testify at Mr. Hammon’s trial, the police officer did testify about what she had told him. Mr. Hammon’s attorney objected to the admission of the testimony without cross-examination, but the judge allowed it under the “excited utterance” exception to the general rule against hearsay testimony (second-hand reports of what someone said or did). The police officer was not trying to preserve evidence but merely to assess the incident, so Mrs. Hammon’s statements to him were not the sort of testimony prohibited under the U.S. Supreme Court’s decision inCrawford v. Washington.
Under the U.S. Supreme Court’s interpretation of the Sixth Amendment inCrawford v. Washington, may statements made to police during investigation of a crime, though not made with the intent to preserve evidence, be admitted in court without allowing defendants to cross-examine the person who made the original statements?
Media for Hammon v. Indiana
Audio Transcription for Opinion Announcement – June 19, 2006 in Hammon v. Indiana
John G. Roberts, Jr.:
Justice Scalia has the announcement in 05-5224 Davis v. Washington, and 05-5705, Hammon v. Indiana.
It’s me again.
These cases are here on writs of certiorari to the Supreme Court of Washington and the Supreme Court of Indiana, respectively.
The question before us in both cases is whether the admission of out-of-court statements violated the Sixth Amendment’s Confrontation Clause, which states, “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him,”.
The facts of each case described in brief are as follows.
In the first of them, Davis, a 911 operator received a frantic call from Michelle McCottry, who was involved in an ongoing domestic disturbance with Davis, her former boyfriend.
The operator asked McCottry a number of questions to determine what was happening and some questions about Davis to determine whether the dispatched police officers would be dealing with a dangerous felon.
At some point during the 911 call, Davis apparently left McCottry’s home.
Police arrived on the scene within four minutes of the call.
The State of Washington charged Davis with felony violation of a domestic no-contact order.
At trial, only the police who arrived on the scene after Davis had left testified; McCottry herself did not.
But the prosecutor offered a recording of the 911 call, which identified Davis as the assailant and which was admitted over Davis’s Confrontation Clause objection.
The jury convicted him, the Washington Court of Appeals affirmed, as did the Supreme Court of Washington, which held that McCottry’s statements were nontestimonial.
In the other case, Hammon, a domestic disturbance call led police to the home of Hershel and Amy Hammon.
They found Amy sitting on the front porch.
She told them that nothing was wrong, but they asked for and received Amy’s permission to enter the home.
Inside, they observed a living room showing signs of an altercation, including a broken heater.
Hershel, Amy’s husband, was sitting alone in the kitchen.
The officers asked him what had happened, he told them that he and his wife had had a disagreement, but that it never became physical.
At some point, Amy came back inside and went into the living room.
One of the officers stayed with Hershel in the kitchen while the other went to ask Amy about the night’s events once more.
This time, she described the altercation in some detail, saying that it began over a dispute about their daughter, that it evolved from being verbal to being physical, that Hershel started breaking things, that he threw her down, shoved her and punched her.
After hearing her story, the officer asked her to write it out on a battery affidavit, a regular form that this police department had, and to sign that affidavit, which she did.
The State of Indiana charged Hershel with domestic battery.
Amy did not appear at the subsequent trial.
Although Hershel objected on Confrontation Clause grounds, Amy’s statements about the events in question were admitted, both through the testimony of the officer who had questioned her and through the battery affidavit that she had signed.
Hershel was convicted.
The Indiana Court of Appeals affirmed, as did the Supreme Court of Indiana.
It concluded that although the affidavit was testimonial and had been wrongly admitted, it was harmless beyond a reasonable doubt.
The officer’s testimony about Amy’s oral statements to him, on the other hand, the Indiana Supreme Court held were not testimonial.
We granted certiorari in both cases, and in an opinion filed today with the Clerk, we affirm the judgment of the Supreme Court of Washington in Davis and reverse the judgment of the Supreme Court of Indiana in Hammon.
In a 2004 case called Crawford versus Washington, we held that the Confrontation Clause bars the, “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination,” which, of course, did not exist in either of these cases.
We hold today, as we implied in Crawford, that the Confrontation Clause extends only to statements that are testimonial.
That is clear from the text of the Clause, which requires confrontation of witnesses.
“Witnesses” are those who bear testimony.
None of the cases exemplifying the confrontation requirement at the time of the framing applied to nontestimonial hearsay, such as a victim’s cries for help.
To be sure, most of those early cases involved testimonial statements of the most formal sort, such as sworn testimony in prior judicial proceedings or formal dispositions under oath; but not all of them did.
We do not think it conceivable that the Clause’s protections can be evaded by having a policeman recite a defendant’s unsworn testimony rather than the policeman’s having the declarant sign a deposition to the same substantive effect.
In Davis, therefore, we must ask whether objectively considered the interrogation that took place in the course of the 911 call produced testimonial statements.
We conclude that it did not.
911 calls are ordinarily designed to describe current circumstances that require immediate police assistance.
This case is no different.
McCottry was trying to obtain help to meet an ongoing emergency; she was not acting as a witness.
She was speaking in the present tense about events as they were actually happening, not reporting on events that were done.
Objectively viewed, the primary purpose of the 911 operator’s interrogation was to enable police assistance to meet the ongoing emergency.
In Hammon, by contrast, the statements were testimonial.
In relevant respects, they were not much different from those that we held to be testimonial in Crawford.
There was no ongoing emergency.
The police quite properly conducted an investigation into whether, as they suspected, past events of a criminal nature had occurred.
Such an investigation required them to ask Amy to tell them what had happened so that they could decide whether to arrest Hershel, not to end an emergency that was in progress.
Objectively viewed, the primary, if not the sole, purpose of the interrogation in that case was to investigate a possible crime.
From the perspective of the Sixth Amendment’s text again, witnesses in court narrate and attest to the truth of past events, which is precisely what Amy Hammon did.
To summarize our holdings in these cases, 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 potentially relevant to later criminal prosecution.
Finally, we again emphasize, as we did in Crawford, we will note that both of the abused spouses in these cases did not testify, which is not an unusual phenomenon.
For that reason, we again emphasize, as we did in Crawford, that while the prosecution may not deprive a defendant of the right to confrontation, a defendant may forfeit that right; for example, by procuring or coercing the absence of a witness.
The doctrine of forfeiture by wrongdoing is an established equitable principle necessary to allow courts to protect the integrity of their proceedings.
On remand, the Indiana Courts may, if they are asked, determine whether a claim of forfeiture is properly raised and, if so, whether it is meritorious.
The judgment of the Supreme Court of Washington is affirmed, the judgment of the Supreme Court of Indiana is reversed, and the latter case is remanded for proceeding not inconsistent with this opinion.
Justice Thomas has filed an opinion concurring in the judgment in Davis and dissenting in Hammon.