Wednesday, June 22, 2005

An important decision – the right way! – on 911 calls and statements to responding officers

A decision of the Sixth Circuit, in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), prompted me to begin this blog. And now after a too-long hiatus – prompted at first by what was then a dearth of interesting news and a surge of time-pressured work, and prolonged by inertia – I am resuming attention to the blog by reporting on another exciting decision by the Sixth Circuit, issued just yesterday in United States v. Arnold, 2005 WL 1431484. Arnold is one more in a long line of post-Crawford cases involving a 911 call and a statement to a responding officer. Unlike most of the others, Arnold holds that the statement made in the 911 call, as well as the one to the responding officer, should have been excluded.

Arnold was a prosecution for possession of a firearm by a convicted felon. Police involvement was initiated by a woman’s 911 call reporting that Arnold had threatened her with a gun. Police arrived at the scene, and a young woman, Tamica Gordon, who apparently was the caller and who was extremely upset, described the incident in fuller difficulty. Soon after, Arnold drove up, and Gordon identified him as the assailant. The police searched the car, apparently legally, and found a gun. Gordon declined to respond to subpoenas, and evidence of her statements was introduced at Arnold’s trial, where he was found guilty.

The majority of the appellate panel held that the first two statements – in the 911 call and to the officers when they arrived – did not qualify as excited utterances, because there was no proof of when the incident occurred, and that even if admission of all the statements was proper there was insufficient evidence to tie the gun to Arnold. In view of this, the dissenting judge thought with considerable reason that there was no need to reach the confrontation issue. Nevertheless, the majority did reach the issue, and it concluded that all three statements were testimonial. In large part, the court relied on and applied Cromer. As the Arnold court said, Cromer
stated that the decisive inquiry should be "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." Id. (quotation and citation omitted [aw, shucks]).
Given this, the Arnold court found the case rather simple:
Gordon could reasonably expect that her statements would be used to prosecute Arnold. Further, her statements, which were made knowingly to authorities, described criminal activity.
I think the result and the analysis are correct, except that the “Further” is confusing – really, this should be a “because” linking the two sentences.

One other notable aspect of the opinion is that the court acknowledges that “one purpose of the 911 call may have been to secure assistance,” but nevertheless recognizes that this is not decisive because “it remains that Gordon could also reasonably expect the statements to be used in a future trial” [It would have been better if the court had said “future prosecution” instead, but that doesn’t matter here.] In other words, the court declines to use a purpose test and instead looks to the anticipation of the declarant in determining whether the statement is testimonial. This, as I have argued, is the best approach. And in a case of this sort, the application does indeed seem clear: Beginning with the 911 call, Gordon was reporting to the police a crime that had recently been committed. Whatever her motivation may have been, a reasonable person in her position would almost certainly expect the criminal justice system to use the information she provided in an attempt to investigate and if appropriate punish the assailant. If her statements were admissible, then we would have created a system in which witnesses may knowingly create evidence for trial by calling 911 or by speaking to responding officers.

There are some other aspects of the majority opinion that do not strike me as helpful. The majority indicates that Gordon was “the only witness to the alleged incident”; the relevance of this is unclear, though the majority seems to believe that it supports the conclusion that she would reasonably expect her statements to be used to prosecute Arnold. The court also relied on the facts that Gordon’s statements were “made for the purpose of ‘establishing or proving some fact’” [citations omitted] and that they were “were evidence and proof of a matter, firsthand authentication of a fact, and open acknowledgments.” I do not see how these factors distinguish these statements from most hearsay. The opinion would have been more powerful had it simply adhered to the Cromer logic: A statement made in reasonable anticipation of prosecutorial use is testimonial, and therefore a statement knowingly made to the authorities that describes criminal activity is almost always testimonial, no matter how excited the declarant may be.

The dissenting opinion, though thoughtful, articulate, and moderate-sounding – it does indicate that “most statements made directly and consciously to investigating officers will be testimonial” – is nevertheless misguided, in my view. It puts a great deal of emphasis on the fact that the statements were not “solemn declarations,” thus committing an error on which I have commented before in this blog – declining to treat a statement as testimonial for Confrontation Clause purposes because it lacks the incidents that we associate with testimony given under proper conditions. Also, though the dissenting judge quotes the Cromer standard, it appears that he actually applies a purpose test. (“As in this case, a 911 call generally will be a plea for help, not an effort to establish a record for future prosecution.”) He also seems to regard it as incongruous that a person who is in an agitated state could give testimony. And, like many other post-Crawford opinions considering statements that are supposedly excited utterances, this one deals with the crucial passage from footnote 8 of Crawford (“It is questionable whether testimonial statements would ever have been admissible on that ground [as spontaneous declarations] in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made 'immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.' Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694)”) by ignoring it.

I believe the dissent provides further confirmation of a sense I have had for some time, that it will not be enough for the Supreme Court to adopt the proper standard in determining what statements are testimonial – in my view, a standard based on the expectations of a reasonable person in the position of the declarant. The Supreme Court will have to say, in effect, “And we really mean it” to prevent some judges, even some sophisticated ones, from applying that standard in a very narrow manner. The best way to do that, I believe, is to adopt rules of thumb, as Cromer did, indicating circumstances in which a statement should usually be deemed testimonial. Perhaps the most important such rule adopted by Cromer, the one now critical to Arnold, is that a statement made knowingly to the authorities that describes criminal activity is almost always testimonial.


Tracy Staab said...

Nice to have you back professor.

Mark Dwyer said...

I agree. But if I may ask, professor: where in Crawford does the court say that a testimonial statement is one that the declarant thinks may be put to any use by law enforcement, as opposed to one that the declarant thinks will be introduced in a grand jury or at trial?

Richard D. Friedman said...

Thanks! I very much appreciate that. I will try to keep in rhythm of making regular contributions again.

Well, of course, Crawford leaves it quite wide open -- beyond a stated core -- just what testimonial means. So I'm just trying to come up with the best definition. I don;t think it's wise to demand an inquiry into what a reasonable person would think about the admissibility of evidence at trial -- and common understanding of grand jury proceedings is even less. There is also a conceptual difficulty, what I have called a Catch 22 and what Michael Dreeben of the Solicitor General's Office has called a hall of mirrors -- if the statement is inadmissible because of the confrontaiton right, then presumably the next knowledgeable declarant understands this and so it becomes non-testimonial. More fundamentally, the confrontaiton right is one that should transcend the particular system or the particular type of adjudication. Effectively, we may think of the crmiinal justice system as a black box that turns out results, some by adjudication and some by settlement after evidence has been collected. If the statement is made with the anticipation that it may help lead the system to a result, then it should be deemed testimonial.

Paige A. Nichols said...

You're back! Yay!

Here, for those interested in this issue, are a couple of other jurists who have gotten the excited-utterance analysis right (but were unfortunately unable to convince their colleagues):

People v. Walker, 2004 WL 3248429, **8-11 (Mich. App. March 24, 2005) (Cooper, J., dissenting) (enumerating flaws in majority’s conclusion that excited accusatory utterances to neighbor and police were not testimonial); State v. Davis, 111 P.3d 844, 853 (Wash. 2005) (Sanders, J., dissenting) (explaining that in today's media-saturated, crime-drama culture “a reasonable person today who calls 911 in connection with a criminal act could anticipate that his or her statement would be used in investigating and prosecuting the crime”).

I also highly recommend, on this issue as well as others, Tom Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev. 747 (2005). This author manages to advocate for victims' rights without trying to narrow the reach of Crawford.

Chris said...

Prof. Friedman: I was curious, can't Arnold be interpreted as moving beyond your position with regards to 911 calls?

Arnold states: "We see no reason for deviating from the Cromer holding . . . . Gordon could reasonably expect that her statements would be used to prosecute Arnold. Further, her statements, which were made knowingly to authorities, described criminal activity."

In your article last year, "Adjusting to Crawford" (and I hope I'm not mischaracterizing your position), you suggested 911 calls made as an urgent plea for help could be nontestimonial and advocated a case-by-case analysis.

Exchanging the Sixth Circuit's "further" for "because," it is difficult for me to see how any urgent plea for help would not be: 1) to authorities, and 2) describing criminal activity.

Is the distinction as fine as "I've been shot," versus "John shot me?" I suppose being shot does not describe criminal activity in the same way saying that someone has shot you does...

Andrew C. Fine said...

Re: Chris's comment, that's probably the reason that the dissenter accused the majority of holding that all 911 calls would be testimonial. However, the majority used the word "further," not because," demonstrating their intention to adhere to Cromer and require the defense to demonstrate that the declarant would reasonably expect her comments to be used to prosecute.
I think the majority's reliance, in part, on the statement having described criminal activity was intended to recognize that a statement's accusatory nature should militate in favor of the conclusion that it is testimonial, as Prof. Mosteller has advocated.

Stuart Friedman said...

I think some 911 calls will always come in and it is difficult to create a fudge proof test. The nice thing about 911 cases is that Courts usually have the tape to review. If the caller is saying "help, I'm asleep in my bed, a burglar has just broken in, and his heading upstairs -- hurry," you can argue that the primary purpose of the victim is for rescue from a difficult situation.

Conversely, a person who calls the police and says: "I just got home, a 19 year old holding a crow bar ran out of my patio door carrying my laptop" is probably calling to prosecute the suspect AND get his notebook back.

The problem that I am concerned with is that as the police learn from Crawford, they will: (a) take crime scene statements; and, (b) salt the documents with the right buzz words.

The same courts that caused Crawford will then race through the statement like a game of tag briefly touching those words to declare the statmement non-testimonial.