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).