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A Supreme Court Majority Admits 911 Calls Into Evidence_ But

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					  A Supreme Court Majority Admits 911 Calls Into Evidence, But Justice Thomas Seeks
                  More Protection for Domestic Violence Victims:


Part One
By JULIE HILDEN
julhil@aol.com

                                                                             Tuesday, Jun. 20, 2006
This is Part One in a two-part series on these two end-of-Term cases. - Ed.



       Yesterday, the Supreme Court issued a decision resolving two companion cases, Davis v.

Washington and Hammon v. Indiana, relating to the constitutionality of admitting certain

evidence in criminal cases. The decision was 8-1, with Justice Thomas concurring in the

judgment in part, and dissenting in part.

       In the first case, the Court affirmed as constitutional the use of an accuser's 911-call

recordings against the defendant in a criminal case, even when the accuser declines to testify or

cannot be located, and thus cannot be cross-examined. But in the second case, the 8-1 majority

held unconstitutional the use of on-the-scene affidavits gathered by police, when their purpose is

to establish or prove events for a later criminal prosecution.

       The Case's Importance: A Key Ruling for Domestic Violence Victims

       This decision may be of particular importance in domestic violence cases like the two

that were before the Court here. Reportedly, domestic violence victims often refuse to testify at

trial for fear that the original perpetrator may harm them again, in retaliation for their testimony.

And that creates a very ugly dynamic: The more threatening and violent the defendant is, the less

likely the victim may be to risk his wrath by testifying against him - and the more likely she'll be
a no-show when subpoenaed. A defendant who makes threats against a woman's children, in

particular, may easily coerce her refusal to testify.

        Ironically, given the consequences for domestic violence victims, former women's rights

advocate Justice Ruth Bader Ginsburg was among those who joined the majority in leaving one

victim out in the cold, while protecting the other. In contrast, Justice Clarence Thomas - not

considered a feminist by a long shot -- would have protected both women, as he made clear in

his dissent.

        While domestic violence victims may be especially benefited by the 911-call ruling, the

ruling is applicable much more generally. This ruling should make prosecutors' lives easier in

any case where intimidated and frightened witnesses turn out to be no-shows for trial despite

subpoenas, or cannot be located because they have gone into hiding.

        The Confrontation Clause: The Right of the Accused to Have Prosecution Witnesses

Appear in Court To Testify

        The Constitution's Sixth Amendment recognizes a number of rights of the accused. At

issue in yesterday's decision was its guarantee that "[i]n all criminal prosecutions, the accused

shall enjoy the right…to be confronted with the witnesses against him."

        This clause - called the Confrontation Clause - serves a number of values. Like the

evidence rule barring hearsay, the Confrontation Clause ensures that certain out-of-court witness

statements that are not susceptible to cross-examination cannot form the basis of a conviction. In

our system, the ability to cross-examine witnesses - a process designed to test their truth -- is part

of what's deemed necessary for a fair trial.
       Also, in a more visceral sense, the Clause typically forces a testifying witness to look into

the eyes of the person whom his or her testimony may send to jail. Exceptions are rare, and

require strong justification: One was recognized by the Supreme Court in 1990, in Maryland v.

Craig. There, the Court allowed a child who was alleged to be an abuse victim to testify via a

one-way television - so the defendant could see the child, but the child could not see the

defendant - based on the trial court's finding that two-way television would traumatize the child.

And even that was a 5-4 decision - showing how seriously the Court takes the Confrontation

Clause's protections.

       (If a particular statement is not covered by the Confrontation Clause, separate rules

against the admission of hearsay may still apply. But these rules are not constitutionally based,

and thus are subject to alteration. Moreover, hearsay rules have many exceptions - among them,

an exception for "excited utterances" that would cover virtually all 911 calls, as well as many on-

the-scene statements to police. Thus, there is good reason for defendants to invoke the

Confrontation Clause, rather than simply relying on the protection of hearsay rules.)

       Supreme Court Doctrine: Restricting the Confrontation Clause to "Testimonial"

Statements

       Significantly, the Confrontation Clause requires that a defendant be confronted, in

particular, with "witnesses." Based on this reference to "witnesses," as well as consultation of the

relevant historical sources, the Court has interpreted the Confrontation Clause to bar only the

"admission of testimonial statements."

       So which statements are "testimonial" and which are not?

       Here's the Court's current guidance on the issue, from yesterday's decision:
        A statement is "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." Conversely, a statement is "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."

        The Court's language, then, puts the focus directly on the police: It is the police officers'

primary purpose in obtaining statements that counts. Granted, the Court looks to the

circumstances to figure out what that purpose was, rather than just taking the officers' word for

it. But in the end, it's the officers' primary purpose that the Court is trying to discern.

        Given that these are criminal cases, this laser-like focus on the police is the right one.

Whereas a civil plaintiff may forfeit her case if she fails to show up to testify, the same is not

true for an accuser in a criminal case. After all, a criminal case is brought on behalf of the state,

as represented by police and prosecutors, not the victim. And a criminal trial is a search for truth

-- with one of its goals to protect the community, as well as the particular accuser.

        The search-for-truth idea behind the criminal trial argues for examining evidence from

the accuser that comes up naturally, such as through a 911 call -- even if she is a no-show at trial.

But it does not argue for allowing police to game the system by getting statements from a victim

they suspect will be a no-show, so that later, at trial, they can present what is, in effect, testimony

that cannot be cross-examined.

        Applying the "Testimonial" Evidence Requirement in the 911-Call Case

        Here's how the Court applied the test in yesterday's decision:
        In Davis, the 911-call case, the Court reasoned that a 911 operator is hardly an

interrogator - and thus the recording was not "testimonial." And, rather than trying to collect

evidence to prove what happened in the past, the operator is trying to figure out how police can

best intervene in an ongoing emergency.

        The Court acknowledged that a 911 call may, at times, evolve into an interrogation about

past events. But it also held that that was not the case with respect to the relevant part of the call

at issue.

        And it's quite clear from the transcript sections included in the decision why the Court

was confident the relevant part of the 911 call --- where victim Michelle McCottry identified her

assailant - was made in the midst of an emergency. That part came during the following

excerpted sequence:

            "911 Operator: What's going on?

            "[McCottry]: He's here jumpin' on me again.

            ***

            "911 Operator: Are there any weapons?

            "[McCottry]: No. He's usin' his fists.

            ***

            "911 Operator: Listen to me carefully. Do you know his last name?

            "[McCottry]: It's Davis.

            "911 Operator: Davis? Okay, what's his first name?

            "[McCottry]: Adrian.
           ***

           "911 Operator: Okay. What's his middle initial?

           "[McCottry]: Martell. He's runnin' now."




       Clearly, the assailant went from fight to flight as the call was occurring. McCottry's

statements were "nontestimonial," under the Court's test, since the primary purpose of the 911

Operator's questions were to enable police assistance to meet an ongoing emergency.

       In Part Two of this series I will discuss how in Hammon, the companion case to Davis,

the Court reached the opposite result in holding that the accuser's statements were, indeed,

testimonial.

       I will also discuss how, in Hammon, Justice Thomas, in his lone dissent, seeks to provide

extra protection to victims of domestic violence. In doing so, he provides strong evidence,

contrary to widespread belief, that he is able to look at the world from women's perspective.

				
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