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.