Important Confrontation Clause cases pending in Scotus; Crawford to be clarified?

Keep your eyes open for decisions in two cases from the Untied States Supreme Court that should have an impact on practice in Massachusetts.  As noted by Capital Defense Weekly, two Sixth Amendment cases are awaiting decision, Davis v. Washington and Hammon v. Indiana. Both of these cases present issues related to Crawford v. Washington, which most of us hoped would put an end to the creative theories that Courts were usisng to admit hearsay testimony against criminal defendants. Crawford held that the Sixth Amendment means what it says, that a defendant has the right to confront the witnesses against him; more specifically, if a statement is "testimonial" in nature, it cannot be used in evidence unless the person who uttered it testifies about it (with narrow exceptions). Justice Scalia, however, left the door open by saving "for another day" the question of what "testimonial" means. Davis and Hammon may help answer that question.

Davis involves a call to a 911 operator, in which a woman identified the man who beat her as Adrian Davis. The woman did not testify at trial, but the judge allowed the 911 call to be entered into evidence against Davis, who was convicted. In Hammon, a witness told a police officer about a stabbing she had witnessed. Though she did not testify, the content of her statemet was admitted against Hammon, who was also convicted.

Scalia wrote in Crawford:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law–as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Davis and Hammon provide the opportunity for the Court to more clearly define the term "testimonial".  Justice Theodore Boehm of the Indiana Supreme Court wrote in Hammon's case that he agreed with the trial court that Amy Hammon’s statement to the police was non-testimonial, since it was given during a “preliminary investigation.”  Is this different from police interrogation? The 911 call in Davis was actually a second call; the first 911 call was a hang-up before the operator answered.  The operator called back, and that is when the statments that eventually were admitted were made.  How far is this from investigation?  Yes, the 911 operator is primarily an emergency response source for the community.  But when the operator calls back and asks questions, knowing that the call was taped, it also serves as an information-gathering tool, an aid to investigation.

The Crawford decision discussed various definitions of the term "testimonial".  While it is dicta, one can hope that the Court will adopt something similar as a definition: 

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition–for example, ex parte testimony at a preliminary hearing.