Convoluting the confrontation right: Davis v. Washington, 126 S. Ct. 2266 (2006)

Harvard Journal of Law and Public Policy

Volumn 30, Issue 3, 2007, Pages 1059-1070

  Chiu, Candice ^a  

^a NONE

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EID: 36048995610     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (82)

1. 448 U.S. 56 (1980). Under the Roberts reliability standard, a defendant's confrontation right did not bar admission, at a criminal trial, of an unavailable witness's statement against the defendant if the statement fell "within a firmly rooted hearsay exception" or contained "particularized guarantees of trustworthiness." Id. at 66.
2. Crawford v. Washington, 541 U.S. 36, 68 n.10 (2004) (emphasis omitted).
3. Id. at 53-54.
4. Ariana J. Torchin, Note, A Multidimensional Framework for the Analysis of Testimonial Hearsay Under Crawford v. Washington, 94 GEO. L.J. 581, 583 (2006).
5. Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants, 94 GEO. L.J. 183, 192 (2005).
6. The Crawford Court did identify some core forms of testimonial statements, noting that the term applied "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." 541 U.S. at 68. Based upon these generalities, the Court determined that Sylvia Crawford's recorded statements made during a custodial interrogation at a stationhouse would qualify as testimonial "under any conceivable definition." Id. at 53 n.4.
7. 126 S. Ct. 2266 (2006).
8. Id. at 2273-74.
9. Cf. Jeffrey L. Fisher, Categorical Requirements in Constitutional Criminal Procedure, 94 GEO. L.J. 1493, 1508-09 ("Instead of establishing an evidentiary principle enforced by a general, case-by-case standard, the [post-Crawford] Confrontation Clause now erects a nonnegotiable tenet of trial procedure that is enforced by a bright-line exclusionary rule.").
10. Davis, 126 S. Ct. at 2270-71.
11. Id. at 2271.
12. Id.
13. Id.
14. Id.
15. Davis, 126 S. Ct. at 2271.
16. Id. Hearsay and confrontation problems are prevalent in domestic violence prosecutions because female victims frequently cooperate initially but recant or refuse to testify before trial due to emotional pressures, physical threats, and fears of financial reprisals, among other reasons.
17. See id. The admitted recording contained the first portion of the 911 call in which McCottry identified Davis, before the operator learned that Davis had left the premises.
18. Id.
19. See State v. Davis, 64 P.3d 661, 665 (Wash. Ct. App. 2003) ("[W]e conclude that the trial court properly admitted the 911 tape as an excited utterance, and its admission does not offend Davis' right to confrontation because the statements fall within a firmly-rooted hearsay exception.").
20. State v. Davis, 111 P.3d 844 (Wash. 2005).
21. Id. at 851. In his dissent, Justice Sanders contended that 911 calls are structured by agents and "constitute an interrogation just as effective as if a police officer were questioning the absent witness directly." id. at 854 (Sanders, J., dissenting). Because McCottry's statements were the "result of government-initiated interrogation" rather than "a 'cry for help,'" Justice Sanders maintained that the 911 recording was testimonial and that its admission violated the Confrontation Clause.
22. See id. at 854-55.
23. Davis, 126 S. Ct. at 2272.
24. Id. (quoting Hammon v. State, 829 N.E.2d 444, 446 (Ind. 2005)).
25. Davis, 126 S. Ct. at 2272.
26. Id. (quoting Hammon, 829 N.E.2d at 447).
27. Davis, 126 S. Ct. at 2272.
28. Hammon v. State, 809 N.E.2d 945, 948 (Ind. Ct. App. 2004).
29. Davis, 126 S. Ct. at 2272.
30. Hammon, 809 N.E.2d at 948.
31. Davis, 126 S. Ct. at 2272.
32. Id.
33. See id.
34. Id.
35. Hammon, 829 N.E.2d at 447.
36. Hammon, 809 N.E.2d at 952-53. The court admitted Amy's statement under the hearsay exception for excited utterances. The court declined to determine whether the affidavit was properly admitted because, even if erroneously admitted, the affidavit was cumulative of the officer's testimony and thus harmless. Id. at 948 n.1.
37. Hammon, 829 N.E.2d at 459.
38. Id. at 457.
39. Id. at 458.
40. Id. at 458-59.
41. Davis, 126 S. Ct. at 2273-74.
42. Id. at 2274 (quoting Crawford v. Washington, 541 U.S. 36, 53 (2004)).
43. See id.
44. Id. at 2277.
45. Id. at 2276-77.
46. Davis, 126 S. Ct. at 2277.
47. Id. at 2278.
48. Id. at 2279.
49. Id.
50. Id. at 2278.
51. Davis, 126 S. Ct. at 2283 (Thomas, J., dissenting). Justice Thomas offered the examples of affidavits, depositions, prior testimony, or confessions extracted by police in a formal manner, as "bear[ing] a 'striking resemblance' to the examinations of the accused and accusers under the Marian statutes." Id. at 2282 (citations omitted).
52. Id. at 2282-83.
53. Id. at 2283.
54. Id. at 2285.
55. Crawford v. Washington, 541 U.S. 36, 68 (2004).
56. Id. at 56 n.7 ("Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse....").
57. Id. at 67 ("[The Framers] knew that judges...could not always be trusted to safeguard the rights of the people....");
58. see also Fisher, supra note 9, at 1520-21 ("Lower courts applying Roberts were finding almost anything and everything to indicate trustworthiness sufficient to overlook the inability to cross-examine. Even when a court conceded a circumstance actually did indicate a statement's unreliability, it could simply search the record for other facts that suggested trustworthiness and allow the admission of the statement." (footnote omitted)).
59. Bibas, supra note 5, at 185; cf. Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L. REV. 1171, 1172 (2002) ("[T]he confrontation right... should apply only to a limited category of out-of-court statements, but as to those it should be deemed categorical, not subject to balancing or ringed with exceptions.").
60. Fisher, supra note 9, at 1516.
61. See generally Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 863 (1989) ("[T]he main danger in judicial interpretation...is that the judges will mistake their own predilections for the law.").
62. See Crawford, 541 U.S. at 53-54. The Court noted that the term "testimonial" applied "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations," id. at 68, and compared "interrogation" to official pre-trial examinations of witnesses by English magistrates or justices of the peace under the Marian statutes in sixteenth- and seventeenth-century England, id. at 52. In the ex parte examination system, justices of the peace would interrogate defendants and witnesses in private chambers, later introducing the statements as evidence at trial.
63. See Torchin, supra note 4, at 603-04.
64. See Davis, 126 S. Ct. at 2283 (Thomas, J., dissenting).
65. Id. at 2277.
66. Id. at 2272.
67. Cf. Brief for the United States as Amicus Curiae Supporting Respondent at 11, Hammon, 126 S. Ct. 2266, No. 05-5705, 2006 WL 303913, at *11 ("An officer who responds to a potential domestic abuse emergency cannot content himself with 'securing the scene' while he is there, but must consider the potential for a flare up of violence when he leaves.").
68. Davis, 126 S. Ct. at 2277.
69. Id.
70. Id. at 2278.
71. Id. at 2271.
72. State v. Davis, 111 P.3d 844, 854 (Wash. 2005).
73. Davis, 126 S. Ct. at 2274 n.1.
74. See Torchin, supra note 4, at 603-04.
75. To be sure, some police officers will prioritize quieting the situation for the victim's sake or his or her own safety over securing a conviction. Nonetheless, police incentives to adapt and manipulate their practices to obtain accusatory statements have been well-documented, even in the wake of Crawford's holding. See Richard D. Friedman, Grappling with the Meaning of "Testimonial," 71 BROOK. L. REV. 241, 249 (2005) ("As a result [of a characteristic-based approach to the question of what is trial testimony] we have seen police advised to try to secure accusatory statements before beginning what would necessarily be deemed a formal interrogation.").
76. See Major Robert Wm. Best, To Be or Not To Be Testimonial? That Is the Question: 2004 Developments in the Sixth Amendment, 2005 ARMY LAW. 65, 75-87 (detailing various lower court positions on whether 911 calls for help and statements to responding officers at the scene of a disturbance are testimonial).
77. See Davis, 126 S. Ct. at 2279 ("Although we necessarily reject the Indiana Supreme Court's implication that virtually any 'initial inquiries' at the crime scene will not be testimonial, we do not hold ... that no questions at the scene will yield nontestimonial answers." (citation omitted));
78. see also id. at 2277 ("This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, 'evolve into testimonial statements,' once that purpose has been achieved." (citation omitted)).
79. Id. at 2277.
80. See generally Best, supra note 72.
81. See Posting of Jeffrey Fisher to SCOTUSblog, http://www. scotusblog.com/movabletype/archives/2006/06/more_on_davisha.html (June 19, 2006, 14:38 EST).
82. Bibas, supra note 5, at 189.