Julien v. State, 2019 WL 2750591, a decision issued yesterday by the Texas Court of Appeals, First District, shows how vulnerable the law of confrontation is with respect to fresh accusations.  As in Hammon v. Indiana, this was a domestic violence case, involving a statement made in the house by the complainant a considerable time after the alleged incident to responding police officers; here it was three hours later because, unaccountably, that is how long it took to respond to repeated 911 calls.  The principal difference was that here the suspect had left the house by the time the officers arrived; in Hammon, he was kept at bay by one officer while another spoke with the complainant.

 

In supporting the conclusion that the purpose of the questioning was to relieve an ongoing emergency, the Julien court first noted that on arrival the officers asked what happened -- which is ironic given that in Davis-Hammon that question (as contrasted to "What is happening?") was considered an indicator that the response would be testimonial.  Of course, in this case, as in Hammon, the speaker was protected as she made the statement, and given that the allegation was of domestic violence there was no plausible fear that the suspect was off on a rampage against others.  But, the court said, the whereabouts of the suspect were not known.  Therefore:  "The primary purpose of the questioning was not to document a past crime, but instead to assess the situation, determine the location of the suspect, and ascertain whether the threat remained."

 

 I think everybody has to have understood that the complainant was giving the officers evidence that could be used in prosecuting Julien.  It should have been an easy case to call this testimonial.  The holding to the contrary just provides a glaring demonstrating of how completely malleable the "primary purpose" test is; if a court wants to wave the evidence in it can almost always mouth sufficient words to reach a conclusion that the primary purpose of the conversation (and usually the court will focus on the officers rather than on the speaker) was something other than the transmission of evidence.

 

Let's also not ignore the horrible incentives this decision creates.  Sure, officers, you can respond at leisure to a 911 call; we'll still be able to say that the conversation was meant to respond to an ongoing emergency.  Better to wait, in fact, because then the suspect will likely have left, and you can say you didn't know his whereabouts.

 

These cases should be decided from the point of view of a reasonable person in the position of the speaker, not from that of the investigator or some kind of mishmashed joint perspective.  And the question should be whether there was a reasonable expectation that the statement would be used in prosecution.  That was clearly so here.  The statement was testimonial -- and the confrontation right should have prevailed, unless Julien forfeited it, as by intimidating the speaker.