Wednesday, July 12, 2006

Post-Davis decisions by the Supreme Court: A Preliminary Look

The Davis opinion left many questions unanswered, even within the realm of statements made shortly after a crime to law enforcement officials. Some indication beyond the opinion of what the Supreme Court is thinking about these issues may be gleaned from its post-Davis decisions, denying certiorari in some cases and granting, vacating, and remanding in others. Andy Fine has drawn these cases to my attention and written a very brief summary, which I am posting here with his permission, and with a very short comment afterwards; I am hoping to post a more detailed analysis before too long.

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Very Early Fallout From Davis/Hammon

Some may have thought that the Supreme Court’s term ended on June 29 with its decisions in Hamdan v. Rumsfeld and Clark v. Arizona, but the Court also issued an interesting batch of “GVRs” on June 30, granting cert, vacating and remanding for reconsideration in light of Davis/Hammon in seven cases. Criminal defendants were the petitioners in each instance. Six of these seven cases involved crime-scene statements to responding police, and two of those, Wright v. Minnesota and Lewis v. North Carolina, were appeals from state supreme court decisions holding such statements to be nontestimonial under Crawford. See State v. Wright, 701 N.W.2d 802 (Minn. 2005); State v. Lewis, 619 S.E.2d 830 (N.C. 2005). The Lewis decision is particularly intriguing, since the North Carolina Supreme Court’s analysis in some respects resembled that adopted in Davis/Hammon; the state high court said that when police responding to emergency calls for help ask preliminary questions at the crime scene to ascertain whether the victim, other civilians, or the police themselves are in danger, they are not obtaining information for the purpose of making a case against a suspect, and the ensuing statements therefore are not testimonial. And in Forrest v. North Carolina, the Court “GVR’ed” where the declarant, described as nervous, shaking, and crying, blurted out most of her statements before any questions were asked. See State v. Forrest, 596 S.E.2d 22 (N.C. App. 2004).

On the other hand, the Court denied cert to the state in Gonsalves v. Massachusetts, in which the Massachusetts Supreme Judicial Court had held that statements that are the product of any questioning by law enforcement agents other than to secure a volatile scene or ascertain the need for medical care are testimonial per se, and that other statements are testimonial if a reasonable person in declarant’s position would anticipate the statement’s use against the accused in a prosecution. Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005). The Court also denied cert to one criminal defendant appealing from an adverse state supreme court decision involving crime-scene statements to responding police, Hembertt v. Nebraska. See State v. Hembertt, 696 N.W.2d 473 (Neb. 2005).

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Friedman psotscript: Hembertt, involved a woman running outside of a house as police arrived, crying and saying , "[H]e's inside. He's upstairs." This appears to be the type of case that the Court had in mind when it noted that some statements made to police at the scene are non-testimonial because within the emergency doctrine. To this case, we might also add
Foley v. Massachusetts, denying cert in Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005), a companion case to Gonsalves involving responses to the question "[W]here is he?" and to an inquiry about the need for medical care. In addition, the issue had not been properly preserved in Foley, as in Greene v. Connecticut, denying cert in State v. Greene, 874 A.2d 750 (Ct. 2005).

3 comments:

Paul Vinegrad said...

Supreme Court of Rhode Island holds that unsworn statement (identifying perpetrator of past assault) volunteered to (or, possibly, in response to question by) a private party is nontestimonial and, thus, outside the scope of the Confrontation Clause. (See State v. Feliciano, ___ A.2d ___, 2006 WL 1932661 [July 14, 2006].)

Not too suprising since Crawford already recognized that casual remarks to acquaitances are nontestimonial.

However, nice to see the court recognize the fact (suggested in Crawford and nailed down in Davis) that nontestimonial hearsay is not within the ambit of the Confrontation Clause.

Also, the court seems to recognize a very important aspect of Davis, to wit, that "formality" is an "essential" element of a testimonial statement. With that requirement being firmly established by Davis, it is hard to conceive of a unsworn statement that is volunteered to (or even made in response to questioning by) a private party ever being testimonial.

Crawford started laying out some bright-lines re: the Confrontation Clause, Davis seems to have suggested another line of demarcation by deeming formality essential.

David B. Chontos said...

I don't see Davis as big as formaility as Paul does. it can be considered as part of the decionsal matrix but is not the quintesential focal point.
On another issue, is the child witness and the interplay with states tender years hearsay rule being pushed by any cases seeking cert ? Who knows what site or blog I can visit to track the petitons which have been filed for the upcoming term. More importantly, the questions presented is the key to look at but I don't know where to look. thanks.

melissabrooks said...

Curious about your thoughts on the Massachusetts decision - Commonwealth v. Gonsalves, 833 N.E. 548 (2005). If the Court's distinction regarding "interrogation" actually hinges on whether the police are acting in their community care-taking function versus their investigative function (as if the two were exclusive), doesn't this leave serendipity to decide what constitutes interrogation? Who knows whether the defendant will be on-scene or will have just left 5, 10, 15 minutes ago? Or maybe the defendant is hiding in the closet? Are the police really "interrogating" when they first arrive on scene? I think the concurrence in Gonsalves got it right by noting that fortuity will dictate the admissibility of a witness's response. And the Court's definition of testimonial is so broad that even 911 recordings look likely to be kicked from trial.

On a random, though related note, to the extent it's necessary to authenticate the 911 for admission into evidence (and usually with the person who made the call), the Confrontation Clause has little effect on whether 911 tapes come in. If the witness is there to authenticate, then they're available and can crossed. So, no 6th Amendment issue.