Supreme Court to Consider When Fresh Reports to Authorities Are Testimonial

The U.S. Supreme Court has agreed to hear two cases which turn on when a complaining witness’s first crime report to authorities is a “testimonial” statement. When it is, it may not be used in evidence to prove the crime unless either the complaining witness testifies, or the complaining witness is unavailable to testify and the defendant had an earlier adequate opportunity to cross-examine him or her.

The cases are Davis v. Washington and Hammon v. Indiana.

In March 2004 in Crawford v. Washington, the Supreme Court fundamentally changed its interpretation of the constitution’s Confrontation Clause. It announced that the clause applied only to “testimonial” statements�a term whose meaning it said it would flesh out later. With the Court’s decision to hear Davis and Hammon, “later” has come.

In both cases, women reported to police that they had been assaulted in domestic situations. In Davis, the report came in a 911 call; in Hammon, it came to responding officers at the scene. In both cases the women did not testify at trial, and the trial judges admitted their statements as not testimonial.

Davis’s and Hammon’s briefs have been submitted to the Court. Davis’s may be read here. Hammon’s may be found here on the blog of its author, Prof. Richard D. Friedman. The Court may hear the cases this March.

For an outline of post-Crawford decisions by the lower courts, go here. This outline is updated from time to time by Jeffrey L. Fisher, the lawyer who won theCrawford case and who now represents Davis.

For more details of the Davis and Hammon cases, and for a state-by-state and circuit-by-circuit summary of lower court approaches to the fresh report issue, seeAll Eyes Are on High Court Over ‘Crawford’ Issues.