We may be moving towards a Supreme Court resolution of the question of how the Confrontation Clause applies to fresh accusations – that is, to accusatory statements made shortly after an incident, typically either in a 911 call or to a responding police officer. Jeff Fisher has submitted a petition for
certiorari, which you can see by clicking
here, in
State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (Wash. 2005). And I have filed a petition, which you can see by clicking here, in State v. Hammon, 829 N.E.2d 444 (Ind. 2005). The National Association of Criminal Defense Lawyers has filed an amicus brief in Davis suggesting that the Court grant cert in both cases; I anticipate the NACDL will follow up with a brief in Hammon as well. With these petitions pending, I won’t comment further on these cases here. But I will take note of State v. Wright, 2005 WL 1903860 (Minn. 2005), decided since both petitions were filed, in which the Minnesota Supreme Court reviewed the conflict among the lower courts and said:
The Supreme Court stated in Crawford that it would “leave for another day” any effort to put forth a comprehensive definition of testimonial statements. 541 U.S. at 68. We believe that the task of defining the exact parameters of what constitutes testimonial statements for purposes of the Confrontation Clause of the U.S. Constitution is best suited for the Supreme Court.
Wright involves both 911 statements and statements to responding officers, and, like the majority of the cases in this realm, it finds a way to let them all in. Some of the statements were made during an interview at the complainant’s apartment. The court’s opinion includes this remarkable passage:
It is inconsequential that during the interviews the officers took notes that they later used to refresh their memories at trial. We acknowledge that the officers took possession of some evidence at the apartment while interviewing R.R. and her sister, and Wright was in custody at that time. However, we conclude that the officers’ actions represent a response to a call for assistance and preliminary determination of “what happened” and whether there was immediate danger, rather than an effort to gather evidence for a future trial.
The analogy that comes most readily to mind is provided by this memorable passage from Ring Lardner’s The Young Immigrants:
Are you lost daddy I arsked [sic] tenderly.
Shut up he explained.
The Minnesota Supreme Court said:
A consequence of using the Court’s broadest formulation may be the categorization of virtually every out-of-court statement made by a declarant to a police officer as testimonial. But such a consequence would make an analysis of the interrogative qualities of interactions between declarants and the police wholly unnecessary.
Well, yes. I have discussed the question of interrogation at length on this blog, in the posting titled The Interrogation Bugaboo. I believe a statement made to government officials and accusing another person of a crime should be considered testimonial irrespective of whether it was in response to interrogation. In some more doubtful circumstances, the fact that a statement was made in response to interrogation may support the conclusion that the speaker anticipated prosecutorial use of the statement – but when the statement is accusatory and made to police officers, that conclusion is clear even if the statement was made entirely at the initiative of the speaker. The Minnesota court believed that Crawford did not intend such a result. I believe that the Minnesota court is wrong, and that Crawford's references to interrogation were not intended to limit the category of statements deemed to be testimonial. But plainly the matter will not be resolved without intervention by the United States Supreme Court.
3 comments:
Rich, your assumption ("when the statement is accusatory and made to police officers, that conclusion is clear even if the statement was made entirely at the initiative of the speaker") seems to only makes sense if you assume that the speaker has a specific familiarity with the criminal prosecution process. Maybe repeat reporting DV victims, for example, understand what it means to call 911 or talk to police. But if you're basing your argument on that assumption, I think that a real, live factual study of DV cases that go to trial would show you that in many, many cases (as in the case I'm in trial on right now - no Crawford issues involved) the victim will say "I never would have called 911 [or talked to officers] if I knew that he'd be arrested or charged. I just wanted the police to make him leave."
Knowing how thorough you are, I imagine you've considered and dealt with this criticism of this aspect of your argument before. What's been your response?
Bill, an excellent former student of mine, asks a very good question.
First, and most broadly, even if the only desire of the complainant at the time of the statement was to get the police "to make him leave" -- and even assuming that the desire of the complainant is the key issue (which it isn't, for reasons suggested below) -- I believe that the statement is testimonial. The complainant, by making an accusation against a person, is invoking the power of the state to use compulsory force against the accused. I think that is testimonial, even if the anticipated process is an informal one.
Second, as a matter of fact, many 911 DV calls are made by people with prior experience in the system, who understand the consequences of the call. Bridget McCormack and I discuss this phenomenon in Dial-In Testimony, 150 U.Pa. L. Rev. 1171 (2002).
Third, also as a matter of fact, in many cases the accused has left by the time of the statement.
Fourth, I would take with a grain of salt protestations like the one Bill says the complainant made in his case. If the complainant retracts, it means that at this moment she does not want the accused to be prosecuted. Her recollection now of her past state of mind is not particularly strong evidence that at the moment she made the statement she did not expect the police to bring charges. And, for reasons I discuss in my forthcoming article Grappling With the Meaning of "Testimonial," an early draft of which is avilable on this blog, I think the question is one of expectation rather than of desire.
Fifth, in the formulation I think most courts prefer, and that I think ultimately the Supreme Court is most likely to adopt, the test is objective rather than subjective -- that is, it depends not on the expectation of this particular speaker but on what a reasonable person in the position of the speaker would expect. This formulation raises definitional issues -- what is a reasonable person? what is the position of the speaker? -- but it avoids a subjective psychological inquiry. I think a reasonable person in the position of a speaker who makes a statement to the police accusing another person of a crime of violence would understand that the police are likely to pursue the matter. And if that were not true now, it soon would be, especially if these statements are not considered testimonial, because prosecutions will continue to be brought on the basis of them and TV shows and movies as well as news reports will likely spread the word. Further, I think this is particularly true in the case of statements made to responding officers -- in which the police have already indicated their concern by coming to the scene.
I am the attorney who appealed the Wright case in Minnesota. The Minnesota Supreme Court went beyond the Court of Appeals and beyond even what the prosecutor was asking for by deciding that not only was the 911 call testimonial but the police interviews were also non-testimonial. No one saw that coming.
My thought on that, based on some of the oral argument comments, is that the Minnesota Supreme Court has worked out some sort of dual purpose analysis. Under this analysis, 911 callers usually have a dual purpose - to report the crime and to get help. They can't get help without talking the police. So, even though under an objective or subjective test, the caller knew or would have known the statements would be used to prosecute, the caller had "no choice" since who else is going to get them medical care or get the defendant out of the house, etc. The Court is "worried" about discouraging people from calling 911 or the police.
In Wright, because, in the Court's opinion, the interviews were done as soon as the police could get to the apartment after receiving the call, the Court decided the interviews were really just a follow-up to the call for help and the complainant had no real choice in participating and the police were simply doing their duty to follow up and see what help might be needed. The Court distinguished this from an actual interview that is done only to develop a case -- not to figure out who needs help or what might have happened.
Of course, I totally disagree with this but I think the Court felt that they really wanted to salvage these cases for these complainants who they believe won't come to court and should not be forced to come to court. (The Battered Womens groups filed amicus briefs)
I think this on-the-scene preliminary investigation versus already developing a case dichotomy is also the big problem.
I wonder if the test shouldn't be simply that when the police interview people, because that could lead to the abuse of ex-parte trial (once the police have statements, the prosecutors have the ability or incentive to prosecutor on only on the hearsay), then it is always a testimonial statement. This would include even calls for help or initial, preliminary on-the scene questioning.
I hope to filing a petition for cert to the US Supreme Ct soon. Any thoughts on what should be emphasized would be appreciated.
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