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The outcomes of thousands of criminal cases hang in the balance while the U.S. Supreme Court decides whether to clarify when out-of-court accusations may be used in lieu of in-court testimony without violating defendants’ Sixth Amendment right to confront witnesses. Both the National District Attorneys Association’s point man on the confrontation clause and the National Association of Criminal Defense Lawyers agree that the time is ripe for the court to satisfy its promise to fill in the blanks it intentionally left when it decided Crawford v. Washington, 541 U.S. 36 (2004). Two petitions for certiorari that raise confrontation clause issues — in the context of excited utterance exceptions to hearsay rules — are pending before the court. Both Davis v. Washington, 05-5224 and Hammon v. Indiana, 05-5705 — domestic violence cases — are listed for action by the court at its conference today. The court’s decision on whether it will hear the cases is expected on Oct. 31. Before Crawford, any hearsay could come in — even when a witness did not testify — if the hearsay exception was firmly rooted and traditional, and if a judge found the statement to be reliable and trustworthy in the circumstances in which it was made. The case is Ohio v. Roberts, 448 U.S. 56 (1989). Crawford bars testimonial hearsay introduced by the prosecution unless the defense has an opportunity to question the person who made the statement, and that person is unavailable at the time of trial. With some exceptions, the court explicitly decided that it would “leave for another day” a more specific definition of “testimonial.” While domestic violence prosecutions make up the bulk of these kinds of cases, the issues also have arisen in murder, robbery, burglary, assault and other criminal matters. “The pro-defense, anti-government crowd is interpreting Crawford with shocking overbreadth,” said Richard Wintory, a Pima County, Ariz., deputy county attorney and an NDAA board member. “On the other side, you see some prosecutors acting as if the Supreme Court didn’t mean what it was saying.” Barbara Bergman, president of the NACDL and a visiting professor at Washington’s Catholic University of America Columbus School of Law, noted the “tremendous confusion in federal and state court decisions as to the meaning of ‘testimonial’ in the context of Crawford. “Judges have struggled to see where particular cases fit — like 911 calls — that fall between the cracks of the concrete definitions of testimonial that the court laid out,” Bergman said. In the 19 months since the high court decided Crawford, federal circuit, state supreme and intermediate appellate courts have divided into three camps. Each camp uses a different rationale in determining when, and if, tapes of 911 calls and statements taken by investigating police officers at alleged crime scenes are testimonial. A few courts have found that 911 calls and witness statements made to police investigators who come to scenes of recent alleged crimes are nontestimonial. Therefore, they find Crawford inapplicable, and those alleged witnesses are not required to testify. On the other end of the spectrum, many courts find that all statements that come after an alleged crime has been completed are testimonial, and therefore the person who made the statement must be available for cross-examination. More courts say that whether or not a statement is testimonial depends on the circumstances, but there is wide disparity among those courts as to what those circumstances are. Some courts say that it depends on a speaker’s purpose in making a statement and a government agent’s actions at the time. Some say it depends on whether the statements were generated to bear witness or were attempts to be rescued from peril. Some say the test for that is subjective; others say it is objective. Some say only those statements made before alleged crime scenes are secured are not testimonial. Some courts focus on the formality or informality of the communication, or whether an adversarial relationship existed between those making the statements and the police. Who initiated the conversation is important to some courts, as is the motivation of the interviewers. ‘DAVIS’ CASE Michelle McCottry called 911 in February 2001, and said that someone had just beaten her up. For about four minutes, responding to questions, McCottry described the alleged crime and identified Adrian Davis, who had allegedly left the scene before the call. When police arrived, they noted fresh injuries on her forearm and face. At trial, McCottry was not called to testify. The 911 tape was played and the prosecutor told the jury that though she hadn’t testified, she “had left you something better. She left you her testimony on the day that this happened.” It was the only evidence introduced that Davis and not someone else had beaten her up. In an 8-1 ruling, the Washington Supreme Court decided that McCottry’s statement was not testimonial in State v. Davis, 111 P.3d 844. The majority’s reasoning was that she had called 911 because she was in immediate danger, not to assist police in an investigation. “This is a false dichotomy,” asserted Jeffrey Fisher, a partner with Seattle’s Davis Wright Tremaine. “When a person requests police assistance, their accusations must be treated as testimonial because people also realize that such reports are likely to trigger criminal investigations or prosecutions,” he said. “Otherwise, anytime a person called 911 — or the police or the DA — and reported a crime, the caller’s statements would not be testimonial. This is impossible to reconcile with having a right to confront one’s accuser,” said Fisher, who argued Crawford before the U.S. Supreme Court. Washington prosecutors disagree. “A fundamental problem with the allegedly ‘objective’ standard petitioner urges on the court is that no statement beyond a bare initial plea for help — perhaps just a shriek into the telephone receiver — can come in. The remainder of the call would be excluded,” said James Whisman, King County senior deputy prosecuting attorney. “I do not believe the framers intended the confrontation clause to bar such evidence. They also assert that every 911 operator is conducting an interrogation, which is certainly not the case,” he said. ‘HAMMON’ CASE Responding to a domestic violence call at the house of Hershel Hammon and his wife, Amy, police found evidence of an altercation. Amy denied there had been a problem. Hershel, in another room, told police there had been an argument, but that things were now fine. When questioned again, Amy said that he had punched her twice in the chest and thrown her to the ground onto broken glass. She then filled out a form affidavit, which laid out statutory battery allegations, and wrote a specific description of what Hershel had allegedly done. The form said that the investigating officer would rely on her statements to establish probable cause for an arrest. At the bench trial, Amy, who had been subpoenaed to testify, didn’t show up. The judge admitted officers’ testimony of Amy’s oral statements as an excited utterance and her affidavit as a present-sense exception to the hearsay rules. Hershel was convicted. The Indiana Supreme Court found that the motivation of a government agent questioning a witness was more determinative — for the purpose of future legal use of a statement — than the motivation of the witness, but if either were motivated by a desire to preserve the statement, it would be sufficient to render the statement testimonial. “[R]esponses to initial inquiries by officers arriving at a scene are typically not testimonial,” the court said in Hammon v. State, 829 N.E.2d 444 (2005). The other aspect the court addressed was that the officers were there to secure and assess the scene, not for the purpose of gathering evidence for use at trial. (The NACDL is an amicus in Hammon and Davis.) Richard Friedman, Hershel Hammon’s lead counsel before the U.S. Supreme Court and a professor at the University of Michigan Law School, said that the court got it wrong. “The decisive criterion is not a witness’ — in this case the accuser’s — subjective purpose or motivation, but rather whether a reasonable person in her position would anticipate that the statement would likely be used in investigating or prosecuting a crime,” said Friedman. It depends on the circumstances, said Indiana Solicitor General Thomas Fisher, the prosecution’s counsel of record in Hammon. “Particularly in domestic violence situations it is important that police have the leeway to carefully assess the scene before victim statements are deemed testimonial,” Fisher said. “The confrontation clause should not be construed in a way that would discourage police from determining whether the victim needs immediate protection.” Leonard Post is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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