Issues
Are 911 calls — previously admissible as evidence in court even when the witness was absent under exceptions to the hearsay rule — "testimonial" statements and therefore no longer admissible under the new Crawford standard?
The Confrontation Clause of the Sixth Amendment codifies the long-recognized right of an accused to confront his/her accuser, and the corresponding “hearsay rule” requires that if the accuser does not testify at trial his/her statements can not be used as evidence. The trial judge in this case allowed a 911 call made by Davis' alleged victim into evidence even though the victim failed to appear at trial. The Washington Court of Appeals and Washington Supreme Court upheld that decision based on a well-recognized exception to the hearsay rule for reliable or spontaneous statements. Davis now appeals that these decisions were improper in light of the recent Crawford standard which forbids "testimonial" statements from being introduced in the absence of the witness. Davis claims that the Framers of the Constitution understood the Confrontation Clause to apply to immediate reports of crime to government agents, and therefore, despite the change of technological context, the Clause also applies to 911 calls. Washington responds that the motivation of the Confrontation Clause — preventing prosecutorial abuse — will not be served by Davis’s interpretation since 911 operators are unlikely to be soliciting testimony with an eye towards trial. This case, which will be heard back-to-back with Hammon v. Indiana, is the first in which the Court will address the admissibility of the content of 911 calls in the absence of the witness under the reformulated Crawford standard. Along with the rights of defendants, the case will also have a significant effect on the ability of prosecutors nationwide to convict the accused in "evidence-based" cases where the alleged victim is unavailable to testify, which are especially prevalent in the domestic violence context.
Questions as Framed for the Court by the Parties
Whether an alleged victim's statements to a 911 operator naming her assailant — admitted as "excited utterances" under a jurisdiction's hearsay law — constitute "testimonial" statements subject to the Confrontation Clause restrictions enunciated in Crawford v. Washington, 541 U.S. 36 (2004).
Facts
At 11:54 a.m. on February 1, 2001, a 911 operator in Kent, Washington, picked up a call only to hear a dial tone — the party on the other end had hung up before speaking. Brief for Respondent at 1, State v. Davis, 154 Wash.2d 291, 295 (2005). The operator immediately reversed the call, ringing the phone at Michelle McCottry's apartment. Brief for Respondent at 1. McCottry picked up the phone and was breathing heavily as she told the operator, "He's here jumpin' on me again." Brief for Respondent at 1; Davis, 154 Wash.2d at 295. The operator then asked McCottry who she was referring to, what her relationship to "him" was, and whether "he" had been drinking. Davis, 154 Wash.2d at 295. McCottry responded that she was referring to her boyfriend Adrian Davis, who had beat her with his fists and had left moments earlier. Brief for Respondent at 1; Davis, 154 Wash.2d at 295-96. The operator inquired about what led up to the incident, and McCottry explained that Davis had come to her apartment when another man, "Mike," was present, and that Davis started to beat her when she told him to leave. Brief for Respondent at 1. McCottry also told the operator that she had previously obtained a judicial protection order against Davis. Brief for Petitioner at 5.
The Standard Operating Procedure for the City of Kent's 911 system urges operators to "[q]uestion aggressively" and to "[b]e tenacious in obtaining information from reporting parties," because officers may arrest subjects based on information relayed by the 911 operator. Brief for Petitioner at 3. Policy 602 of the Procedure provides a list of questions for the operator to ask, including where the incident occurred, who was involved, and why it occurred. Brief for Petitioner at 3.
Police officers responded within four minutes of the 911 call, finding a very upset McCottry with fresh injuries on her forearm and face. Davis, 154 Wash.2d at 296. At that point, McCottry was frantically gathering up her belongings and children, telling the officers she had to leave the residence. Id. McCottry also described to the officers how Davis attacked her and how she tried to defend herself. Id.
Washington prosecutors charged Davis with violating a protection order in a Washington trial court, where the judge ruled that McCottry's statements on the 911 tape were admissible as excited utterances, though her statements to the officers that arrived at her apartment were not. Brief for Petitioner at 3. This ruling turned out to be critical since McCottry failed to appear for trial despite being under a subpoena, and could not be located. See Id. The case proceeded against Davis on the basis of the 911 tape, the officer's testimony regarding McCottry's behavior and condition, and the protection order that had been previously served on Davis. Id. A jury convicted Davis, and the court sentenced him to 15 months confinement. Id. The Washington Court of Appeals and the Washington Supreme Court both upheld Davis' conviction on the basis that McCottry's statements to the 911 operator were excited utterances and, therefore, were admissible despite the fact that McCottry failed to appear in court. Id. at 3–4. Davis now argues for reversal by the Supreme Court of the United States because McCottry's statements in the 911 tape should have been excluded from trial in accordance with his Sixth Amendment right to confront his accusers. Id. at 10.
Analysis
The Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.” US Const. amend. VI (emphasis supplied). The Clause was enacted largely to limit the use of testimony from a witness when the accused had no opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 43 (2004). Without this ability to cross-examine, an accused is susceptible to being convicted on the basis of potentially false testimony shaped entirely by a prosecutor’s theory of the case. Brief of Respondent, at 17.
The United States Supreme Court, however, has interpreted the Confrontation Clause to permit use of testimony against an accused even if he/she had no opportunity to cross examine his accuser at trial under certain circumstances. Where a prosecutor seeks to present such testimony, a court must consider whether the statement is “testimonial” in nature. Although the Court has never precisely defined what constitutes a testimonial statement, at a minimum it includes testimony before a grand jury, at a former trial, or to police interrogators. Crawford, 541 U.S. at 68. If a statement is testimonial in nature, it can be admitted against an accused only after satisfying two conditions: the accused had an earlier opportunity to cross examine the witness, and the witness is now unavailable to testify in court. Id. On the other hand, if an out-of-court statement is non-testimonial, it is admissible against an accused only if the statement is sufficiently reliable. Ohio v. Roberts, 448 U.S. 56 (1980). Courts consider excited utterances, such as those McCottry made to the 911 operator, sufficiently reliable because the accuser is unlikely to have had an opportunity to fabricate the statement. Id. However, courts disagree on a more central question – whether statements made in an emergency call to 911 operators are testimonial. This case will resolve the uncertainty, but each party argues for opposite answers.
The Confrontation Clause as Understood by the Framers of the Constitution
The Framers included the Confrontation Clause in the Constitution to reflect their conviction that a defendant must be allowed to cross examine the accuser. Id. at 17. Although 911 systems were not in place in 1791, hues and cries – oral reports of felonious acts to constables – typically served the function of helping to apprehend a potentially dangerous suspect and trigger a criminal prosecution. Id. at 18. However, because hues and cries were made without giving the accused the chance to cross examine his accuser, American courts refused to admit these statements against an accused in a criminal trial. Id. at 20. Even though hues and cries were often made in a state of excitement, the framers refused to exempt them from the restrictions of the confrontation clause. Id. at 22.
Davis argues that the framers would have admitted an excited statement only if it was part of the res gestae of an alleged crime – that is, part of, rather than a description of, the crime. Id. For example, the statement, “Prince Jones, don’t shoot me,” is likely res gestae, but telling a third party that “Prince Jones just shot me” is not. Id. at 24-25. Thus, Davis argues that even if the framers considered a statement reliable because it was made in close temporal proximity to a crime, the reliability alone did not extricate a statement from the reach of the confrontation clause. Id. Applying this historical framework to the present case, Davis believes it irrelevant for purposes of the Confrontation Clause that McCottry’s answers to the 911 operator’s questions are exempt as “excited utterances” under current Washington evidence law. Id. at 32.
Washington responds that statements to 911 operators are a far cry from the prosecutorial abuses anticipated by the Confrontation Clause, and therefore, should not be labeled testimonial statements. Brief for Respondent, at 15. In deciding whether a statement is testimonial, Washington urges the Court to focus on whether government officers were involved in producing testimony with an eye toward trial, because these situations exhibit an enhanced potential for the prosecution to produce evidence favorable to their case. Id. at 17-19. For instance, a prosecutor that repeatedly asks targeted, leading questions is more likely to produce biased testimony. Id. Such testimony, Washington concedes, is imbued with “testimonial” qualities. On the other hand, not all forms of questioning by government officials trigger concerns of prosecutorial abuse. Id. Do statements to 911 operators trigger these concerns? Washington answers in the negative. They propose a three-part test to show that statements to 911 operators are not elicited under circumstances where the operator could manipulate the caller’s statement into something that resembles trial testimony. Id. at 20-21.
Two Different Tests Proposed for Identifying Testimonial Statements
The first part of Washington’s three-part test inquires whether the questioner has “an essentially investigative and prosecutorial function.” Crawford, 541 U.S. at 53. Brief of Respondent, at 21. At the time the government official received the information, was she acting as an investigator as opposed to a community-caretaker, such as a police officer or a 911 operator? Id. The second part focuses on whether the investigator was conducting a structured police investigation. Id. Were the investigatory questions asked in a structured, targeted, and formal manner with an eye toward later use at trial? Id. The third part asks whether the investigator had the opportunity and ability to manipulate or shape the statement. Id.
Applying this three-part test, Washington concludes that McCottry’s statements are not testimonial. Id. at 23. First, a 911 operator is not an investigator, but merely a “conduit between the caller and the police.” Id. at 24. Unlike police officers, operators are not trained to assess evidence; instead, they coordinate responses to a threat to public safety. Id. Second, an operator’s questions are directed at ensuring that the police have sufficient information to respond to a public safety issue, not at interrogating callers to produce evidence for use in a criminal case. Id. at 25. Davis could counter their argument here by pointing out that the standard operating procedures for the City of Kent's 911 system instructed the operators to acquire information that could be used against the accused. Third, 911 operators typically have only brief interactions with callers, which is not enough time to conduct anything resembling an “interrogation.” Id. at 26.Washington concludes that 911 tapes differ from the prosecutorial abuses that the Framers sought to limit. Id. at 27.
Although Davis believes that the history of the Confrontation Clause shows that McCottry’s statements are testimonial, in the event the Court disagrees with him on this point, he proposes a legal test to determine whether the statements are testimonial. Davis’s test asks “whether a reasonable declarant would have anticipated that her statement might be used for law enforcement purposes.” Brief of Petitioner at 41. Thus, the test ignores the caller’s subjective belief about the use of the statement, and instead inquires into the thoughts of a reasonable person in the caller’s position. Davis believes that by focusing on whether a reasonable person would have realized that prosecutors might use her statements at trial, the test comports with the Framers’ intentions of “preserving the adversarial process.” Id.
When Davis applies his test, he concludes that McCottry’s statements are testimonial. Id. at 42. McCottry’s started her call by responding to a series of questions posed by the 911 operator, not by pleading for immediate help. Id. And when the operator learned that McCottry was not asking for help, the operator told her to “stop talking and answer my questions.” Id.
Washington attempts to undermine Davis’s test by revealing its faulty assumptions. Brief of Respondent, at 37. First, a typical 911 caller can hardly be expected to have “objectively reasonable” thoughts or expectations about the use of her statement. Id.. Callers are often highly distressed and cannot reflect calmly on the situation. Id. at 38. Second, although some 911 callers realize that their statements to operators can form the basis for an arrest, many are unaware of this. Id. Washington argues that callers have different expectations about the use of their statements since callers come from diverse racial, ethnic, and socioeconomic backgrounds. Id. By Davis’s own logic, the Court must fashion a profile for each subgroup of callers in order to render his test workable in practice. See Id. These assumptions, Washington argues, would only hinder the Court’s effort in determining whether a statement is testimonial. Id.
Discussion
Lower courts have been scrambling to conform to the new Crawford standard for determining whether statements can be admitted as evidence despite an absence of the declarant at trial. Prior to Crawford, the well-known hearsay rule barred the admission of statements by persons unavailable to testify at trial, but prosecutors relied on the generous "hearsay exception" that allowed statements to be admitted if they were deemed reliable. See Geetanjli Malhotra, Resolving the Ambiguity Behind the Bright-line Rule: The Effect of Crawford v. Washington on the Admissibility of 911 Calls in Evidence-based Domestic Violence Prosecutions, 2006 U. Ill. L. Rev. 205, 205 (2006). The Crawford standard shifts the question away from reliability and instead simply provides that any "testimonial" statement is not admissible under a hearsay exception unless the witness testified at trial. See Id. at 205. Before Crawford, prosecutors had comfortably relied on admitting 911 calls into evidence under the "excited utterances" exception, which presumed that statements made by a victim under stress were reliable and, therefore, could be admitted into evidence. See Id. at 214. The Court must now reexamine this practice in light of the reformulated Crawford standard.
This case centers on the struggle between the rights of the accused and the ability of the state to prosecute the accused. Allowing prosecutors to introduce 911 calls as evidence in the absence of the witness will allow them to aggressively prosecute the accused and obtain substantive justice for the victim. The Court’s decision will be particularly resonant in domestic violence cases, since the Court's decision will affect whether victims of domestic violence can realize justice against their abusers without enduring the difficult and painful process of confronting their abuser face-to-face in court. Like McCottry in this case, many domestic violence victims refuse to testify against their abusers because they may be hesitant to help prosecute their partner, distrustful of the legal system, fearful of retaliation, financially or emotionally dependent, and/or unwilling break up their families. Geetanjli Malhotra, Resolving the Ambiguity Behind the Bright-line Rule: The Effect of Crawford v. Washington on the Admissibility of 911 Calls in Evidence-based Domestic Violence Prosecutions, 2006 U. Ill. L. Rev. 205, 214 (2006). This leaves the prosecutor with the unenviable task of putting together an "evidence-based" or "victimless" prosecution, relying on the victim's out-of-court statements. Brief Amicus Curiae of American Civil Liberties Union (ACLU) at 4. Prosecutors would have even less evidence to work with if 911 calls were not allowed into evidence, which increases the likelihood that alleged abusers would be acquitted. However, the American Civil Liberties Union (ACLU) argues that the confrontation rule should be upheld because in cases like this one, prosecutors would respond to the unavailability of the 911 call by increasing the pressure on domestic violence victims to testify, possibly through the use of advocates that will work with victims to explain the importance of their role in the prosecution. Brief Amicus Curiae of ACLU at 6.
On the other hand, allowing 911 calls to be introduced as evidence without the presence of the witness in court could bias the fact-finder, often a jury, since it would not directly and independently assess the credibility of the witness who made the call. This, in turn, threatens the defendant’s rights to a fair trial. Accusers could also take advantage of the rule by making statements in 911 calls with the express knowledge that they would be admissible at trial absent the accuser. In Crawford v. Washington, 541 U.S. 36, Justice Scalia noted the historical example of Sir Walter Raleigh who was sentenced to death in 1603 due to a fraudulent letter written by an alleged accomplice. Although all statements introduced into evidence absent the declarant carry the risk of non-credibility, 911 calls present a special threat to the rights of the accused. The statements in a 911 call may be especially persuasive to a fact-finder since they are the witness' own words — in the case of an audio tape, the witness' own voice — yet the witness never has to be confronted in court and, therefore, the witness’s credibility may not be attacked. Brief of Amici Curiae NCDL et al. at 5. Defense lawyers, unsurprisingly, side with the accused here, because without the ability to cross-examine unfavorable witnesses in court, their ability ability to defend the accused — and on a more self-interested note, their ability to win cases — is handicapped. Brief of Amici Curiae The National Association of Criminal Defense Lawyers (NCDL) et al. at 2.
The Court's decision may also affect the operating procedures of 911 operators, especially if the Court crafts a standard for the admissibility of 911 calls that depends on the type of questions asked by a 911 operator and how much the operator influenced the caller. For example, The Supreme Court may decide that 911 calls are not admissible into evidence unless the operator was objective in his/her questioning and did not “lead” the victim into making snap judgments. Such legal restraints on 911 operators could impair their primary function of quickly obtaining as much information as possible to provide help to a caller.
Those who strongly support strict law enforcement are often outraged in instances where defendants walk free because of legal technicalities. They would not hesitate to sacrifice some protections to the accused to see substantive justice served. Therefore, those who strongly support law enforcement likely hope that the Court will permit 911 calls to be admitted into evidence – even in the absence of the witness – in order to benefit prosecutors and increase the probability that an accused is convicted.
Conclusion
The Court in Crawford expressly declined to resolve the question presented in this case. In deciding whether statements to 911 operators are testimonial in nature, this Court will now examine the historical roots of the Confrontation Clause to determine if the statements trigger the Framers’ concerns about prosecutorial abuse. If history fails to reveal the answer, the Court may adopt and apply Davis’s “reasonable declarant” test, Washington’s “resemblance” test, or none of the two and instead formulate its test. Written by:
Euwyn Poon
Ya-Wei Li