Most Child Statements to Police Now “Testimonial”

Davis v. Washington and Hammon v. Indiana (2006)

In its first major elaboration on Crawford v. Washington, the U.S. Supreme Court has distinguished statements to police which are covered by the Confrontation Clause from those which are not. The difference, the Court ruled, turns on whether police take a statement primarily “to enable police assistance to meet an ongoing emergency.”

The decision came in Davis v. Washington and Hammon v. Indiana. Both were domestic violence cases. The statements in question were made by the two complainants and were essential to conviction. In child sex abuse cases, too, statements by complainants to law enforcement are often essential to conviction. Much in the Davis and Hammon majority opinion will affect criminal cases alleging child abuse.

In Davis, a woman phoned 911. That led to this exchange:

911 Operator: Hello.
Complainant: Hello.
911 Operator: What’s going on?
Complainant: He’s here jumpin’ on me again.
911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment?
Complainant: I’m in a house.
911 Operator: Are there any weapons?
Complainant: No. He’s usin’ his fists.

911 Operator: Listen to me carefully. Do you know his last name?
Complainant: It’s Davis.
911 Operator: Davis? Okay, what’s his first name?
Complainant: Adran.
911 Operator: What is it?
Complainant: Adrian.
911 Operator: Adrian?
Complainant: Yeah.
911 Operator: Okay. What’s his middle initial?
Complainant: Martell. He’s runnin’ now.

At Davis’ trial for felony violation of a domestic no-contact order, the complainant did not appear. The tape of the 911 call was admitted, though, and he was convicted.

In Hammon, police responded to a domestic disturbance report at the home of Amy and Hershel Hammon. They found Amy alone on the front porch. She told them nothing was the matter. Inside, they found broken glass and Hershel, who told them he and his wife had argued, but that all was well now. One officer then questioned Amy while another kept Hershel from participating in that interview. Amy described an assault by Hershel and then, at police request, made out a battery affidavit.

When Amy failed to appear at Hershel’s trial for domestic battery and violating probation, her oral and written statements were admitted, and he was convicted.

In Crawford v. Washington, the Supreme Court construed the constitution’s Confrontation Clause to prohibit the prosecution’s use at trial of “testimonial” out-of-court statements unless the speaker herself testified at the trial or she was unavailable to testify and the defendant had had an adequate opportunity to cross-examine her earlier. The question posed by Davis and Hammon was under what circumstances complainants’ statements to police were “testimonial.”

They are generally testimonial, the Court decided, when the police are investigating a past crime—even if it is in the very recent past:

[I]t suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

This meant that Hammon’s right to confront witnesses against him was violated, but Davis’ was not.

It also means that almost all abuse allegations to law enforcement by children should be deemed “testimonial” because almost all are made when there is no emergency underway. Several features of the Davis and Hammon opinion show that it makes even allegations of very recent abuse “testimonial.” In Hammon, the assault had apparently occurred shortly before police arrived. In Davis, the majority opinion, by Justice Scalia, suggests that even the complainant’s statements in the latter part of the 911 call were testimonial:

[A]fter the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then … proceeded to pose a battery of questions. It could readily be maintained that, from that point on, [the] statements were testimonial … .

Also, the Court mentioned an 18th-century English rape case in which the complaint was about as fresh as complaints get in child abuse cases. The Court implied it was not fresh enough:

In King v. Brasier … a young rape victim, “immediately on her coming home, told all the circumstances of the injury” to her mother. The case would be helpful to Davis if the relevant statement had been the girl’s screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events.

Justice Thomas wrote in dissent that Amy Hammon’s assailant might have assaulted her again after the police left. That would have “transform[ed] what the Court dismisses as ‘past conduct’ back into an ‘ongoing emergency.'” The other eight justices did not seem to consider the possibility of recurring crime a reason to consider an emergency still in progress. The majority opinion mentioned only the risk of a violent confrontation with police as reason for the police to want the complainant to identify Davis:

[T]he nature of what was asked and answered in Davis … was such that the elicited statements were necessary to be able to resolve the present emergency … . That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon.

The Court refused to narrow the right to confront witnesses in domestic violence cases, despite arguments that that was necessary for justice to be done in those cases:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In child abuse cases, too, one hears the argument for, as the Court put it, “greater flexibility in the use of testimonial evidence.” The Court’s refusal to make special rules for domestic violence cases suggests it will refuse to make special ones for child abuse cases.

But the Court affirmed that a defendant may forfeit his confrontation right by wrongdoing—say, by preventing the witness from testifying at trial.

This forfeiture doctrine may become a key battlefield in applying the Confrontation Clause in child abuse cases. Child forensic interviewers often ask children whether they were told not to tell what was done to them. Often the children say they were told that. Sometimes, no doubt, this is true. Other times, children may acquiesce to this suggestion because it implies they should not be blamed for not telling. It remains to be seen whether courts will find such an answer adequate basis to rule the defendant has forfeited his confrontation right.

Although the statements at issue in these cases were responses to focused questions, the Court pointed out that even “volunteered testimony or answers to open-ended questions” could be testimonial.

The Davis and Hammon decision focused on statements to law enforcement but, in footnote 2, declined to decide just who was a part of law enforcement. It assumed but did not decide even that 911 operators are part of law enforcement. This leaves open whether the decision applies to statements to child investigative interviewers who are not commissioned police officers.