Amicus Curiae Brief — Davis v. Washington

i 4 Supreme Court, U.S.

@a FILED

his v

AUG 11 2005

No. 05-5224

CLERK |

IN THE

Supreme Court of the Anited States

ADRIAN MARTELL DAVIS,

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

On Petition for a Writ of Certiorari to the

Washington Supreme Court

BRIEF OF AMICI CURIAE

THE PUBLIC DEFENDER SERVICE FOR THE

DISTRICT OF COLUMBIA AND THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

PAMELA HARRIS TIMOTHY P. O'TOOLE

Co-Chair Amicus Committee Counsel of Record

NATIONAL ASSOCIATION OF CATHARINE F. EASTERLY

CRIMINAL DEFENSE LAWYERS ANDREA ROTH

1625 Eye Street, NW CORINNE BECKWITH

Washington, D.C. 20006 PUBLIC DEFENDER SERVICE FOR

(202) 383-5386 THE DISTRICT OF COLUMBIA

633 Indiana Avenue, NW

Washington, D.C. 20004

(202) 628-1200

SS

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 - WasHinGTon, D.C. 20001

A

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........ccssscsssesssesseeessesseesseeeans ii

INTEREST OF AMICI CURIAE.......... PERE eco I

STATEMENT OF THE CASE .......cccccecessesssesseesssecsveen 2

SUMMARY OF ARGUMENT. ......cccscccscscsssessseessessseen 4

REASONS FOR GRANTING THE PETITION........... 5

1. THE COURT SHOULD CLARIFY THE

GOAL OF CRAWFORD’S “TESTIMONIAL”

eae a 5

A. The Common Law As Baseline................... Sina

B. Roberts Redux: Conditioning the Right to

Confrontation On Speculation About the

Absentee Witness’s Subjective Motivation .. 8

C. Roberts Redux: Limiting Confrontation

to Only Those Statements That Mirror

Tangential Aspects of the Common-Law

ERE iinvsiicdiceneniniitilviagieniaibinaimisdinniievgineai 13

Il. THIS COURT SHOULD CLARIFY THAT

ACCUSATORY STATEMENTS ABOUT

COMPLETED CRIMES TO KNOWN GOV-

ERNMENT OFFICIALS ARE “TESTI-

SURUTEN Te sctwisiincinsiicientesmneptionioonnnteninaietinidcenempn 17

CONCLUSION ..........ccccc0000-- Soa I a 20

(i)

ii

TABLE OF AUTHORITIES

SUPREME COURT CASES Page

Bruton v. United States, 391 U.S. 123 (1968)....... 18

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

SOMIPUTTccseceicidiielciindNsiecthcinsnseiinndllbaabigiaabulighibaiiuiiiniaios 2

Crawford v. Washington, 541 U.S. 36 (2004)....... passim

Devenpeck v. Alford, 125 S. Ct. 588 (2004)........... 12

Ewing v. California, 535 U.S. 969 (2002)............. 2

Faragher v. City of Boca Raton, 524 U.S. 775

Ieee cteniiiesisdiciadbicieniicanipniattnasiinibaiipaliansisteadaiieinitinin 2

Lockyer v. Andrade, 535 U.S. 969 (2002)............. 2

McCreary County, Ky. v. ACLU, 125 S. Ct. 310

Era assansesipsiiesinaetisiipesapceeriidniibadecasensivdidiandbaticesadiamnodinieie 2

Murphy v. United Parcel Service, Inc., 527 U.S.

ee wiiitieisiiianistsclabisiagalipnebhliicbdiepessitiaidaainis 2

Ohio v. Roberts, 448 U.S. 56 (1980) ............::cccee 4

Sutton v. United Air Lines, 527 U.S. 471 (1999)... 2

United States v. Booker, 125 S. Ct. 738 (2005)..... 8

Van Orden v. Perry, 125 S. Ct. 346 (2004)........... 2

White v. Illinois, 502 U.S. 346 (1992)............cc0e8 3

FEDERAL CASES

Massey v. Lamarque, 2005 WL 1140025 (9th

ae. BUN iy SUI etsicccemiaesnritesipicndnintadinheingtestandecnce 9

United States v. Arnold, 410 F.3d 895 (6th Cir.

SITU x:ssdicsadiktcsiitensidsundlepipanadsondblaminiiianvalaiantainiaties 6

United States v. Bordeaux, 400 F.3d 548 (8th Cir.

Se eesistadecciercienilisindtnsiaciiiiblnnheiiiainasabaianiteitiiania 6

United States v. Brun, 2005 WL 1797451 (8th

Ce SS FEE, F, Ta Pincsindtcieinnntstpercnvecininntiiinn 9, 16

United States v. Cromer, 389 F.3d 662 (6th Cir.

Spi eck ceshtuiissincisiteslpiitieccidieiadéanaadandababnibabatniaddoldeate 6

United States v. Solomon, 399 F.3d 1231 (10th

i ae ieshicicdlbdisneinicechisibasiiidtaihainaieinibndinicniiebons 6

United States v. Summers, 2005 WL 1694031

(10th Cir. (N.M.) Jul. 21, 2005)... eee 6

iil

TABLE OF AUTHORITIES—Continued

Page

United States v. Wilmore, 381 F.3d 868 (9th Cir.

Se ecalsasehiceanitidsccinibideaddtabietagisinibieiitenitebediiidaions 12

STATE CASES

Anderson v. State, 111 P.3d 350 (Alaska App.

inte citiitibsineishdiambineiuehiabinthabbdiidisisihenifidaipesadabvediinns 9,13

Commonwealth v. Gray, 867 A.2d 560 (Pa. App

SE iiniiiaticobiiiigiidetadhieLicnaiaiehlgdaalidediabenieligliintss )

Davis v. State, 2005 WL 183141 (Tex. App. Jan.

Stee Ane cosiniestiedaebiledibbciiedahedileonetinapiiebidiinnbastindsisiiipess 16

Hammon v. Indiana, 829 N.E.2d 444 (Ind.

2005)......... esesosiosstasenttinvenianeosensniseesnnstonessoes 1,4, 9, 16,17

Heard v. Kentucky, 2004 WL 1367163 (Ky.

App.), review granted, (Ky. 2005) ........::ccc0 16

In re E.H., 823 N.E.2d 1029 (Ill. App. 2005)........ 6

Key v. State, 2005 WL 467167 (Tex. App. Feb.

Sn Se iicsihiterechitlbicicinritesililaiitindeibialabiabiiidiibdpoorsiee 9

Lee v. State, 143 S.W.3d 565 (Tex. App. 2004)... 15

Lopez v. State, 888 So. 2d 693 (Fla. App. 2004)... 6

Mason v. State, 2005 WL 1531286 (Tex. App.

SE ee A icctcincdancecectanninstedieiitisdsaniatniinentes 6

Miller v. State, 2005 WL 1423393 (Ga. App.

June ZO, ZOOS) (SaINC)......0cccssecccccssccccscsscsesecceeees 6

People v. Adams, 16 Cal Rptr. 3d 237 (Cal.

App.), review granted, (Cal. 2004).............000. 6

People v. Aubrey, 2004 WL 2378400 (Cal. App.),

review denied, (Cal. Jan 12, 2005)............. 9, 13, 15, 16

People v. Bradley, 2005 WL 1774080 (N.Y.

App. Div. July 28, 2005) .........cccccsscseeseseereeeseees 16

People v. Cage, 15 Cal. Rptr. 3d 846 (Cal. App.

SEAS IEF Sea a seatane eatery Aen BET 8 AC Oe 13

People v. Caudillo, 19 Cal. Rptr. 3d 574 (2004)... 9

People v. Coleman, 791 N.Y.S.2d 112 (N.Y.

Ts GID viventevsnciciatninstiniinsssetsebuiitiainetness 9

. iV

TABLE OF AUTHORITIES—Continued

Page

People v. Corella, 18 Cal. Rptr. 3d 770 (2004)..... 3, 16

People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup.

CA, FOR scinisnsicedobnannpitinspprilictinnisensbiantstsiiinaseinale 6

People v. Kilday, 20 Cal. Rptr. 3d 161 (Cal. App.

2004), review granted, 23 Cal Rptr. 3d 693

SAG; BD i cccnsncinepsadinptnincinstovcanseitcinnusinapabeniahs 15

People v. King, 2005 WL 170727 (Colo. App.

FON Fig eee a sicatiitarntidgncicituiiulnssintpleincaailaansvonthe 15, 16

People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim.

OR, ZAI iiohsncncninncbeniectiitrincinaanitiendaiasiiaiiulabiiedseiein 9

People v. R.F., 825 N.E.2d 287 (Ill. App. 2005)... 16

People v. Walker, 697 N.W.2d 159 (Mich. App.

BD vcncsniscecnisacaaitacisenppiiviinnniasimmmapihelaidnin 9

Stancil v. United States, 866 A.2d 799, reh'g en

banc granted, 2005 WL 1653880 (D.C. June

A SED bekcsosenssseccnentavescnpenentnienhiebesiiieiaamaiiianiats 16

State v. Anderson, 2005 WL 171441 (Tenn. App. _

SEI ET, SD ccversestisiiartiepsineddapenitcieniaadiiionibbiianite 9

State v. Barnes, 854 A.2d 208 (Me. 2004)............ 9,16

State v. Branch, 865 A.2d 673 (N.J. 2005)............ 6

State v. Campbell, 30 S.C.L. 124, 1844 WL 2558

GAD. ©... TIUD cccccscrsscnsntncesenitnticsiiiniianiiaimpeiniaiss 15

State v. Cannaday, 2005 WL 736583 (Ohio App.

ROR: DE; HD cxvstcecianesisiiniicicsitidinsiapstiniimiiindiinisan 9

State v. Clark, 598 S.E.2d 213 (N.C. App.),

review denied, 601 S.E.2d 866 (N.C. 2004)...... 6

State v. Grace, 111 P.3d 28 (Haw. App. 2005).... 6

State v. Hembertt, 696 N.W.2d 473 (Neb. 2005).. 14, 16

State v. Hill, 827 N.E.2d 351 (Ohio App. 2005)... 6

State v. Lewis, 603 S.E.2d 559 (N.C. App.),

review allowed and appeal dismissed, 608

So GD GK... BOOP cerstnctssccciivintniaitisipheiniivnaiigjte 6

Vv

TABLE OF AUTHORITIES—Continued

Page

State v. Maclin, 2005 WL 313977 (Tenn. App.

I ict el thn cttieetiaceaciaen 15

State v. Snowden, 867 A.2d 314 (Md. 2005)......... 6

State v. Wright, 686 N.W.2d 295 (Minn. App.),

review granted (Minn. 2004)...............cccccee 9, 15, 16

Talley v. Commonwealth, 2005 WL 387443 (Ky.

Re eee 16

CONSTITUTIONAL PROVISIONS

I hn tncernenmensinnemtdenen 18

ACADEMIC JOURNALS

Richard Friedman & Bridget McCormack, Dial-

in Testimony, 150 U. Pa. L. Rev. 1171 (2002).. 20

Robert P. Mosteller, Crawford v. Washington:

Encouraging and Ensuring the Confrontation

of Witnesses, 39 U. Rich. L. Rev. 511 (2005)... 20

Robert P. Mosteller, Remaking Confrontation

Clause and Hearsay Doctrine Under the Chal-

lenge of Child Sex Abuse Prosecutions, 1993

ee ee is NG SUED chinsehiensecheitaiicstninstnsenicneneniissoniiones 18

INTEREST OF AMICI CURIAE

Amicus curiae Public Defender Service for the District of

Columbia represents indigent ciiminal defendants. Amicus

curiae National Association of Criminal Defense Lawyers

is a non-profit corporation with a membership of more

than 10,000 attorneys nationwide, along with 78 state and

local affiliate organizations numbering 28,000 members in 50

states.' As criminal defense lawyers, amici advise ¢\i ats of

their confrontation rights at trial, conduct cross-examinations

of prosecution witnesses, and bring appellate challenges to

restrictions on their clients’ ability to confront prosecution

witnesses—tasks they cannot perform effectively without a

clear understanding of when the Sixth Amendment requires

the government to present the testimony of witnesses against

the accused in court and subject to cross-examination.

In amici’s view, this Court’s decision in Crawford v. Wash-

ington, 541 U.S. 36 (2004), formulated a standard that, if

properly applied, has the potential to substantially clarify this

calculus. But as Petitioner has demonstrated, significant in-

terim uncertainty remains about what constitutes a “testi-

monial” witness statement necessitating confrontation under ~

Crawford—particularly where, in order to prove its case, the

prosecution relies on “excited” criminal accusations made by

an absentee witness in response to questioning by a 911 op-

erator or a responding police officer.

Amici believe that the Court has two excellent vehicles to

address the use of unconfronted criminal accusations that are

the product of both these scenarios—Mr. Davis’s case

(accusatory statements to a 911 operator) and Hammon v.

Indiana, 829 N.E.2d 444 (Ind. 2005), Docket No. 05-5705

(petition filed August 5, 2005) (accusatory statements to

responding police officers). Amici encourage this Court to

' Accompanying this brief are letters of consent to its filing. No coun-

sel for any party authored any part of this brief, and no person or entity,

other than amici, has made a monetary contnbution to the preparation or

submission of this bnef.

2

grant certiorari in both cases, as it has done in other related

cases addressing a complex issue with widespread impact,” in

order to put an end to the substantial uncertainty that

currently plagues this important area of the law. To delay

comprehensive guidance will perpetuate confusion 1m literally

hundreds of criminal cases throughout the nation.

STATEMENT OF THE CASE

Amici adopt Petitioner’s statement of the case, see Petition

for Writ of Certioran’ (“Pet.”) at 1-6, with the additional

observation that Mr. Davis’s case shares three important

similarities with those cases amici litigate daily in courts

throughout the country.

1. Mr. Davis’ case is representative of a group of post-

Crawford cases that treat as unremarkable the absence at

trial of the percipient witness to the alleged crime. Here, for

example, the Washington Supreme Court determined that

statements by an absentee accuser to a 911 operator were not

“testimonial” despite the fact that it contained the “only

evidence” linking Mr. Davis to the crime, Petitioner’s Appen-

dix (“Pet. App.”) at 3, and despite the fact that the prosecutor

could not even describe Ms. McCottry’s statements to a lay

jury without using the word “testimony.” /d. at 6.

2. The-Washington Supreme Court’s focus on whether the

absentee witness was subjectively motivated solely by a de-

sire to “bear witness” at the time she made her statements is

also typical of a subset of courts interpreting Crawford. Pet.

? See, e.g., Van Orden v. Perry, 125 S. Ct. 346 (2004), and McCreary

County, Ky. v. ACLU, 125 S. Ct. 310 (2004) (whether ten commandments

displays violate the Establishment Clause); Ewing v. California, 535 U.S.

969 (2002), and Lockyer v. Andrade, 535 U.S. 969 (2002) (whether appli-

cations of California's Three Strikes Law violated the Cruel and Unusual

Punishment Clause); Sutton v. United Air Lines, 527 U.S. 471 (1999), and

Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (whether

“correctable” disabilities are covered by Americans with Disabilities Act);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.

City of Boca Raton, 524 U.S. 775 (1998) (whether employers are vicari-

ously liable for sexual harassment under Title VII).

3

App. 5-6. In determining that Ms. McCottry was not so moti-

vated, the Washington Supreme Court surmised that her state-

ments were merely “a call for help,” and the court appeared to

look to Petitioner for contrary “evidence” concerning the

absentee witness’s subjective motivation for speaking. /d.

The court also suggested that the “excited” accusations of an

absentee witness to investigating police officers cannot serve

as “testimonial” statements within the meaning of Crawford

because they are never motivated solely by a desire to provide

incriminating evidence. Pet. App. 5-6 (quoting People v.

Corella, 18 Cal. Rptr. 3d 770 (2004)). The Washington court

ignored this Court’s observation in Crawford that an after-

the-fact narrative of an event to government officials in

response to questioning is testimonial, 541 U.S. at 58 n.8

(discussing White v. Illinois, 502 U.S. 346 (1992)), and that

the admission of such a statement in White as a spontaneous

declaration was “arguably in tension” with the Court’s his-

torical interpretation of the Confrontation Clause because

such out-of-court statements would not have been admitted in

criminal trials at common law. /d.

3. Instead of attempting to reconcile its analysis with ei-

ther the common-law right to confrontation or the Framers’

clear preference for in-court adversary testing described

by this Court in Crawford, the Washington Supreme Court,

like many courts nationwide, stressed that Ms. McCottry’s

statements to the 911 operator were not, in its view, the

“functional equivalent” of the civil-law abuses that motivated

the Framers to include the Clause in the Bill of Rights. Pet.

App. 5-6. But, as is also typical of courts interpreting Craw-

ford in this way, the Washington Supreme Court did not

explain why, in resolving whether a statement necessitates

confrontation under the Crawford analysis, tangential aspects

of the historic abuses (such as the formality of ex parte affi-

davits) should play a decisive role in the “testimonial” analy-

sis, while other seemingly more significant aspects of those

abuses (namely, the fact that ex parte affidavits generally

4

‘involved criminal accusations made to known government

agents by absentee witnesses) should be disregarded.

SUMMARY OF ARGUMENT

This Court should grant Mr. Davis’s Petition, as well as the

pending petition in Hammon v. Indiana, Docket No. 05-5705,

in order to secure the uniform, analytically cohesive enforce-

ment of the Sixth Amendment’s confrontation guarantee. As

demonstrated by Petitioner, the striking division among ap-

pellate courts regarding the “testimonial” nature of “excited

utterances” made to 911 operators and responding police offi-

cers has matured and solidified. The lower courts cannot

resolve this division because their dispute is not simply a

matter of choosing among “formulations.” See Crawford, 541

U.S. at 51-52. It stems from a basic disagreement about the

purpose and scope of the Confrontation Clause now that the

Court has reconnected it with its common-law origins.

On one side of this dispute are the courts that read Craw-

ford as requiring a construction of the Sixth Amendment

confrontation guarantee at least as broad as the common-law

confrontation right. These courts are guided by this Court’s

repeated references to the functional common-law right and

the Framers’ belief that adversarial testing was an indispensa-

ble protection for a person accused of a crime. On the other

side of this split are courts, like the Washington Supreme

Court, that treat the confrontation guarantee as one that can

be routinely denied based on the presence or absence of a

variety of inconsistently applied arbitrary and subjective

factors—much as was done under Ohio v. Roberts, 448 US.

56 (1980). To the extent these courts refer to the common-

law origins of the night to confrontation at all, they limit their

focus to tangential aspects of the ex parte affidavit practice

that prompted the Framers to include the Confrontation Clause

in the Bill of Rights, without explaining why the Framers

would have accepted a definition of “testimonial” statements

that leaves the government free to evade the common-law

right to confrontation in new and different ways.

5

Mr. Davis’s and Mr. Hammon’s cases provide excellent

vehicles for resolving this dispute. Both were witnessless

criminal prosecutions that would have been forbidden at

common law because they rose or fell on unconfronted

criminal accusations made by an absentee witness to known

government agents. Accordingly, in amici’s view (and the

view of many appellate courts), such a prosecution should

have been forbidden under Crawford. Because the

Washington Supreme Court and the Indiana Supreme Court

(among others) have held otherwise—applying an analysis

representative of those courts that construe the confrontation

right as far more narrow and pliable than it was at common

law—granting review in Mr. Davis’s case and Mr. Hammon’s

case will give this Court the means to resolve this funda-

mental dispute about the nature and purpose of the Sixth

Amendment confrontation guarantee.’

REASONS FOR GRANTING THE PETITION

I. THE COURT SHOULD CLARIFY THE GOAL

OF CRAWFORD’S “TESTIMONIAL” INQUIRY.

The confusion about how to identify a “testimonial” state-

ment, documented by Petitioner, see Pet. 8-18, is the product

of a fundamental dispute about the purpose and scope of the

Sixth Amendment right to confrontation now that the Court

has reconnected it to its common-law origins.

A. The Common Law As Baseline.

Some courts read Crawford as reinforcing a “categorical

constitutional guarantee[],” 541 U.S. at 68, founded on the

common-law requirement that people functioning as wit-

nesses against the accused provide “live testimony in court

subject to adversarial testing,” id. at 43, and born of the desire

of the Framers to confer on defendants adequate means at a

* Amici fear that granting certiorari in either a 911 case or a responding

officer case will be insufficient because courts will continue to narrowly

limit their definition of “testimonial” statements only to those expressly

declared “testimonial” by this Court.

6

criminal trial to probe the government’s evidence against

them—especially where that evidence consists of accusatory

statements to known government agents.’ This understanding

of the Sixth Amendment right, where confrontation of per-

cipient witnesses is the norm, is grounded in the detailed

discourse in Crawford of the common-law origins of the

Confrontation Clause and the value accorded to the practice

of adversarial testing.

Throughout its opinion in Crawford, the Court repeatedly

reaffirmed the common-law roots of the confrontation guar-

antee, noting that the Clause is “most naturally read as a ref-

erence to the right of confrontation at common law, admitting

only those exceptions established at the time of the found-

* See, e.g., United States v. Summers, 2005 WL 1694031 (10th Cir.

(N.M.) Jul. 21, 2005) (statement by defendant’s companion made to po-

lice testimonial); United States v. Arnold, 410 F.3d 895 (6th Cir. 2005)

(accusations to police testimonial); United States v. Bordeaux, 400 F.3d

548 (8th Cir. 2005) (accusations to “forensic interviewer” testimonial);

United States v. Solomon, 399 F.3d 1231 (10th Cir. 2005) (statement

by defendant’s companion made to police testimonial); United States v.

Cromer, 389 F.3d 662 (6th Cir. 2004) (accusations to police testimonial);

People v. Adams, 16 Cal Rptr. 3d 237, 244 (Cal. App.) (accusations to

responding police officers testimonial), review granted, (Cal. 2004); Lopez

v. State, 888 So. 2d 693 (Fla. App. 2004) (same); Miller v. State, 2005

WL 1423393 (Ga. App. June 20, 2005) (same); State v. Grace, 111 P.3d

28 (Haw. App. 2005) (same); /n re E.H., 823 N.E.2d 1029, 1036 (Ill. App.

2005) (absentee complainant “bore accusatory testimony” because out-of-

court accusations were repeated in court); State v. Snowden, 867 A.2d 314

(Md. 2005) (accusations to sexual abuse investigator testimonial); State v.

Clark, 598 S.E.2d 213 (N.C. App.) (statements to police testimonial), re-

view denied, 601 S.E.2d 866 (N.C. 2004); State v. Lewis, 603 S.E.2d 559

(N.C. App.) (same), review allowed and appeal dismissed, 608 S.E.2d 60

(N.C. 2004); People v. Cortes, 781 N.Y.S.2d 401 (N.Y. Sup. Ct. 2004) (911

call testimonial); State v. Hill, 827 N.E.2d 351 (Ohio App. 2005) (accusa-

tion to responding police officer testimonial); Mason v. State, 2005S WL

1531286 (Tex. App. June 30, 2005) (same); cf State v. Branch, 865 A.2d

673, 692 (N.J. 2005) (in order to “pay proper respect to the principles

animating our Confrontation Clause jurisprudence,” excited utterances to

police inadmissible).

7

ing.” 541 U.S. at 54; see also id. at 54n.5 (“the Sixth Amend-

ment incorporated the common-law right of confrontation’’);

id. at 68 (“the Sixth Amendment demands what the common

law required”). In 1791, these exceptions were limited. See

id. at 54 n.5 (“Marian examinations were admissible . . . only

because the statutes derogated from the common law” but

that by 1791 “even the statutory-derogation view had been

rejected”); id. at 56 n.6 & 58 n.8 (delineating established

exceptions to common-law confrontation right as of 1791;

spontaneous declarations not part of the res gestae were not

then established).

Although the Court in Crawford noted that “the principal

evil at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure,” 541 U.S. at 50, it gave

no indication that the constitutional right to confrontation

was meant solely to prevent the replication of these historic

abuses of the common-law right, while leaving functionally

equivalent encroachments unregulated. Rather, the Court en-

dorsed as a whole the common-law understanding that defen-

dants should be permitted to confront their accusers—the

“witnesses against” them—before the trier of fact in order to

elicit additional information, probe inconsistencies or un-

truths, and thereby demonstrate reason to doubt the govern-

ment’s charges. Jd. at 43-56, 61-62, 66-68. The Court also

indicated that, where there was no “direct evidence” of the

Framers’ reaction to modern-day limitations on confrontation,

courts should employ a “reasonable inference” analysis to

preserve confrontation rights. /d. at 52 n.3.

The reliance on the common-law confrontation right as

the baseline organizing principle for identifying “testimonial”

statements comports with the Court’s discussion of adver-

sarial testing as the fundamental procedural guarantor of reli-

ability:

{The Confrontation Clause] commands . . . that reliabil-

ity be assessed . . . by testing in the crucible of cross-

examination . . . . [and] thus reflects a judgment, not

8

only about the desirability of reliable evidence . . . , but

about how reliability can best be determined. Cf 3

Blackstone, Commentaries, at 373 (“This open examina-

tion of witnesses . . . is much more conducive to the

clearing up of truth”); M. Hale, History and Analysis of

the Common Law of England 258 (1713) (adversarial

testing “beats and bolts out the Truth much better”).

541 U.S. at 61-62; see also id. at 62 (condemning Roberts be-

cause “it allows a jury to hear evidence untested by the adver-

sary process, based on a mere judicial determination of

reliability”).

Despite these many indications in Crawford that the object

of the testimonial inquiry is to promote the practice of bring-

ing live witnesses into court and to ensure today at least as

broad an opportunity for cross-examination as existed in

1791, some appellate courts have taken a quite different

approach. These courts accord little or no import to whether

a person is, within a common-law or common-sense under-

standing, functioning as a “witness against” the defendant at

trial, and they minimize, if not entirely disregard, the utility

of adversarial testing. Much as they did under Ohio v.

Roberts, these courts continue to act as gatekeepers and make

subjective determinations about the need for confrontation

based on ahistorical, arbitrary, and manipulable tests that re-

duce the confrontation right to a technicality. In order to find

support for their varying pliable tests, these courts read iso-

lated passages of Crawford out of context and ignore this

Court’s reliance on the common law and “the principles [it]

sought to vindicate.” United States v. Booker, 125 S. Ct. 738,

753 (2005).

B. Roberts Redux: Conditioning the Right to Con-

frontation On Speculation About the Absentee

Witness’s Subjective Motivation.

Instead of asking whether confrontation would have been

required at common law as it existed in 1791, the Washington

9

Supreme Court, like many others,® held that assessing whether

a statement made in a 911 call is testimonial involves “scruti-

niz[ing] {the call] . . . to determine whether it is a call for help

to be rescued or whether it is generated by a desire to bear

witness.” Pet. App. at 5. The court noted that Ms. McCottry

had made her accusations to the 911 operator “as part of an

ongoing emergency situation” while she was “crying and hys-

terical,” id. at 6, and found that she was subjectively moti-

vated to “call{] 911 because she was in immediate danger.”

Id. at 7. Based on its supposition that the absent Ms. Mc-

Cottry’s single subjective motive to speak to the 911 operator

was to “call for help,” the court held that her accusatory state-

ments were nontestimonial and were admissible without con-

- frontation. /d. at 6-7.

* See, e.g., United States v. Brun, 2005 WL 1797451 at *3 (8th Cir.

(Minn.) Aug. 1, 2005) (“emotional and spontaneous” 911 call nontestimo-

nial); Massey v. Lamarque, 2005 WL 1140025 (9th Cir. May 9, 2005)

(“spontaneous” accusation by “upset” witness on 911 tape nontestimo-

nial); Anderson v. State, 111 P.3d 350, 354 (Alaska App. 2005) (accusa-

tory “excited response” to responding police officer nontestimonial);

People v. Aubrey, 2004 WL 2378400, at *7 (Cal. App.) (911 call nontes-

timonial because it was “a cry for help”), review denied, (Cal. Jan 12,

2005); People v. Caudillo, 19 Cal. Rptr. 3d 574, 590 (2004) (911 call non-

testimonial where caller-witness reported crime to “protect the commu-

nity”); Hammon, 829 N.E.2d at 458 (accusatory excited utterances to

responding police officer nontestimonial where witness’s motivation was

simply “to convey basic facts”); State v. Barnes, 854 A.2d 208 (Me. 2004)

(accusations made by “stressed” complainant who drove to police station

on her own initiative nontestimonial); People v. Walker, 697 N.W.2d 159

(Mich. App. 2005) (“excited” accusations to neighbor and police nontes-

timonial); State v. Wright, 686 N.W.2d 295 (Minn. App.) (accusations in

911 call nontestimonial because complainant was seeking aid), review

granted, (Minn. 2004); People v. Coleman, 791 N.Y.S.2d 112 (N.Y. App.

Div. 2005) (same); People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim. Ct.

2004) (same); State v. Cannaday, 2005 WL 736583 (Ohio App. Mar. 31,

2005) (accusations by “upset” complainant to police nontestimonial);

Commonwealth v. Gray, 867 A.2d 560 (Pa. App. 2005) (excited utter-

ances to responding police officers nontestimonial); State v. Anderson,

2005 WL 171441 (Tenn. App. Jan 27, 2005) (same); Key v. State, 2005

WL 467167 (Tex. App. Feb. 28, 2005) (same).

10

In amici’s view, this focus on the subjective motivations of

the speaker as the pivotal factor in the “testimonial” analysis

cannot be reconciled with Crawford’s insistence on the com-

mon law as the touchstone for determining which statements

require an opportunity for confrontation. Nothing in the com-

mon-law history suggests that the subjective motivations of

the speaker should play any role in the analysis of which

statements are “testimonial” and therefore necessitate con-

frontation. Thus, as the Court explained in Crawford, 541

U.S. at 62, the Framers’ objection to Sir Walter Raleigh’s

trial, a quintessential common-law confrontation abuse, had

nothing to do with Lord Cobham’s subjective motivations for

writing his accusatory letter or testifying before the Privy

Council. Indeed, the whole point of confrontation would have

been to allow Raleigh to explore Cobham’s subjective moti-

vations in making the accusations, by “confront[ing] Cobham

in court, where he could cross-examine him and try to expose

his accusation as a lie.” /d.

A focus on the subjective motivations of the absentee wit-

ness not only has no foundation in the common law, but also

runs afoul of this Court’s efforts in Crawford to disentangle

the confrontation guarantee from hearsay rules. Like a sub-

jective test for “testimonial” statements, what constitutes ad-

missible hearsay as an excited utterance or a spontaneous

declaration also turns on the subjective motivation of the

speaker. These statements are deemed to be motivated by the

exciting event—not by any conscious design, much less the

desire to bear witness. See, e.g., Pet. App. at 15. In fact, the

Washington Supreme Court favorably cited a California ap-

pellate court decision that observed that “it is difficult to per-

ceive circumstances under which a statement qualifying as an

excited utterance would be testimonial.” Pet. App. at 5; but

° Numerous courts have held that statements admissible under Roberts as

“excited utterances” or “spontaneous declarations” by their very nature

cannot be “testimonial” under Crawford. See Pet. at 10-11.

1]

see Crawford, 541 U.S. at 58 n.8 (spontaneous declaration in

White was “testimonial”). By focusing on precisely the same

factors that a court would look to in determining whether to

apply the “excited utterance” exception to the hearsay rule,

the Washington Supreme Court’s analysis improperly “leav[es]

the Sixth Amendment’s protection to the vagaries of the rules

of evidence,” Crawford, 541 U.S. at 61, and its analysis of the

confrontation question is virtually indistinguishable from

what it would have been under Roberts.

Moreover, a test that turns on speculative assumptions

about an absent witness’s subjective motivations is inconsis-

tent both with this Court’s admonition in Crawford that “only

cross-examination could reveal” a witness’s “perception of

her situation,” 54] U.S at 66, and with this Court’s suggestion

that testimonial statements may be identified by examining

whether the circumstances surrounding the statement “would

lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Jd. at 52

(emphasis added). An objective analysis under Crawford of

what a witness anticipates (as opposed to what her motives

are), would, as it did under the common law, focus on

whether the statement is an accusation of a completed crime,

whether it was made to a known government agent, and

whether, given these factors, a reasonable person would know

the statement is one that might be used in a criminal

proceeding. In addition to their historical accuracy, reliance

on these objective factors makes it easy to determine when

confrontation will be required.

By contrast, reliance on the subjective motivation test es-

poused by the Washington Supreme Court and others makes it

nearly impossible to predict whether a court will require

confrontation for a particular statement. In Mr. Davis’s case, the

Washington Supreme Court focused on the emergency situation

and Ms. McCottry’s emotional upset as a basis for its sup-

position that her subjective motivation was to “call for help.”

But, as the dissent noted, there was contrary record evidence that

12

Ms. McCottry “never ask[ed] for help,” Pet. App. 10, and, when

asked if she needed an “aid car,” told the 911 operator, “no I’m

alright.” Jd. at 25. This, in conjunction with the accusatory

nature of her statements and the fact that they were made to a

government agent, could have supported a conclusion—under

the same subjective test—that her subjective motivation was to

bear witness because she must have known that her statements

would be available for use in a later criminal proceeding.

Moreover, it is entirely possible and reasonable to conclude on

this record, as in many of these cases, that Ms. McCottry had

multiple motivations for speaking to the 911 operator,’ rendering

the subjective motivation test all the more unpredictable and

difficult to employ.

Finally, of particular concern to amici, adopting a subjec-

tive motivation test for “testimonial” statements where the

right to confrontation under a given set of facts will “vary

from place to place and from time to time” presents a host of

problems for practitioners. In addition to encountering grave

difficulties in advising a client pre-trial about her Sixth

Amendment rights, defense counsel would face obstacles in

seeking to assert the client’s confrontation rights at trial. In

the regular course, defense counsel will not have had access

to the absent percipient witnesses, thus making it difficult for

counsel to challenge the prosecution’s assertions about the

percipient witnesses’ subjective motivations. More troubling

is the Washington Supreme Court’s apparent suggestion that

” Even if one of those motives were to seek aid, that should not obviate

confrontation, because the desire to seek help does not preclude a witness

from telling untruths. See, e.g., United States v. Wilmore, 38\ F.3d 868

(9th Cir. 2004) (911 caller made false accusations in order to get the police

to respond quickly to her home).

* See Devenpeck v. Alford, 125 S. Ct. 588, 594 (2004) (condemning stan-

dard of probable cause that turned on officer’s subjective reason for mak-

ing arrest, explaining that it is intolerable for the constitutional validity

of the exact same arrest to turn on the officer's stated reasons for making

the arrest).

13

a defendant has some unspecified burden to affirmatively

present “evidence” about the witness’s subjective motivations

in speaking with police or he risks losing the nght to confront

the witness. Pet. App. at 6 (denial of confrontation affirmed

in part because “no evidence that McCottry” subjectively

possessed or was influenced by “common knowledge” that

taped 911 calls could be used as evidence). Nothing in the

common-law history of the Confrontation Clause or this

Court’s Crawford decision even hints that a defendant’s

confrontation rights turn on his ability to affirmatively prove

the absent witness’s subjective desire to bear witness. In

addition to all the other problems with a subjective motiva-

tion test, the contrary suggestion by the Washington Supreme

Court and other courts illustrates the urgent need for this

Court to intervene and provide lower courts with further

guidance on this issue.

C. Roberts Redux: Limiting Confrontation to

Only Those Statements That Mirror Tangential

Aspects of the Common-Law Abuses.

The Washington Supreme Court, like many others around

the country, concluded without meaningful analysis that the

Sixth Amendment right to confrontation also turns on

whether an out-of-court witness statement sufficiently dupli-

cates the formality or some other tangential aspect of the ex

parte examination practice that was of immediate concern to

the Framers.” Thus, the Court also affirmed the denial of con-

* See, e.g., Anderson, 111 P.3d at 357-58 (concurrence) (testimonial

statements are the product of “the kind of formal, systematic questioning

that was characteristic of the English inquisitonal practices that prompted

the enactment of the Confrontation Clause”); Aubrey, 2004 WL 2378400,

at *6 (accusations made to investigating police officer and 911 operator

nontestimonial where court “could not believe that the framers would

have seen a striking resemblance” between them and a justice of the peace’s

pre-tnal examination”); People v. Cage, 15 Cal. Rptr. 3d 846, 854 (Cal.

App. 2004) (accusations made to doctor nontestimonial because he “was

not performing any function remotely resembling that of a Tudor, Stuart

14

frontation in Mr. Davis’s case because “[Ms.] McCottry’s 911

call cannot accurately be described as an ex parte examina-

tion or its functional equivalent.” Pet. App. at 6.

Telephones, 911 operators, and professional police forces did

not exist in 1791. Thus it is hardly surprising that the Framers

had no express views on the use of 911 calls at criminal trials.

But this omission merely proves why limiting “testimonial”

statements to those that mirror the specific abusive mechanisms

of Tudor, Stuart, or Hanoverian England is a woefully insuf-

ficient means of safeguarding the constitutional confrontation

guarantee. Any meaningful analysis must focus on the “func-

tional” problem of gravest concern to the Framers—the exis-

tence of patently unfair trials like Sir Walter Raleigh’s, in which

people were deprived of. liberty and life based on criminal

accusations to government agents that were never subjected to

adversarial testing. In that dispositive respect, Ms. McCottry’s

unconfronted accusations to a 911 operator can “accurately be -

described” as the “functional equivalent” of the abusive prac-

tices most familiar to the Framers, who were not so shortsighted

as to fail to predict that, if one particular means of evading the

common-law right to confrontation were closed off, the govern-

ment would inevitably find others.

It turns history on its head to ignore the salient aspects of

Ms. McCottry’s statements for confrontation purposes—that

they were accusatory and made to a known government

official—and to limit testimonial statements to those that

sufficiently duplicate the civil-law abuses of which the Fram-

ers disapproved. After all, the “abuses” described in Craw-

ford were only abuses at all because they sought to encroach,

through a veneer of formality, on the established, broad

common-law right that entitled an accused to confront his

or Hanoverian justice of the peace”), State v. Hembertt, 696 N.W.2d 473,

481 (Neb. 2005) (“Police interrogations bear a striking resemblance to ex-

aminations by justices of the peace in England” but police interview of

complainant eliciting accusations was not an interrogation).

15

accuser in open court. The sixteenth and seventeenth century

mechanisms used to evade the common-law night cannot now

be used to define the whole of that right as it is preserved in

the Confrontation Clause. Moreover, there is every reason to

believe that at common law the informality of 911 calls

would have heightened, not lessened, concerns about the use

of such statements in criminal prosecutions. Indeed, State v.

Campbell, 30 S.C.L. 124, 1844 WL 2558 at * 3 (App. L.

1844)}—a nineteenth century decision relied on by this Court

in Craw-ford, 541 U.S. at 49—made clear that the “emer-

gency” and “excited” nature of common-law coroner’s in-

quests made them even /ess amenable “to dispens[ing] with

any of the common law guards.”

The abuses-only construct of the nght to confrontation not

only misconstrues the parameters of the common-law right,

but also, as with the subjective motivation test for “testi-

monial” statements, permits courts to make entirely sub-

jective and unpredictable determinations as to when confron-

tation is warranted. In their efforts to determine when a

modern-day police practice sufficiently resembles the civil-

law abuses, some appellate courts have articulated a mish-

mash of possible characteristics of a testimonial statement (its

formality,'° its timing in relation to the alleged incident, '' its

timing in relation to the filing of criminal charges,'” the pres-

'° See, e.g., State v. Maclin, 2005 WL 313977 (Tenn. App. Feb. 9,

2005) (nontestimonial: “informa!” accusation to police responding to 911

call); Lee v. State, 143 S.W.3d 565, 570 (Tex. App. 2004) (testimonial:

recording statement made after roadside traffic stop rendered it suffi-

ciently formal); but see People v. Kilday, 20 Cal. Rptr. 3d 161, 173 (Cal.

App. 2004) (“presence or absence of indicia of formality” not “determina-

tive”), review granted, 23 Cal Rptr. 3d 693 (Cal. 2005).

'' See, e.g., Wright, 686 N.W.2d at 302 (nontestimonial: statement made

to police minutes after alleged incident); but see People v. King, 2005 WL

170727 (Colo. App. Jan. 27, 2005) (nontestimonial: time between injury

and elicitation of statements by police unknown).

? See, e.g, Aubrey, 2004 WL 2378400, *8 (nontestimonial: “no sus-

pect was under arrest, no trial was contemplated”); Lee, 143 S.W.3d at

16

ence or absence of structured police questioning,’ the loca-

tion in which it was made,'* the identity of the witness,'* the

identity of the auditor,’® the state of mind of the auditor,'’ the

state of mind of the witness'*). But these factors (none of

which captures the most important features of the civil-law

570 (testimonial: statement made after defendant’s arrest); but see Stancil

v. United States, 866 A.2d 799 (testimonial: made to police after scene

was secured but before arrest), reh'g en banc granted, 2005 WL 1653880

(D.C. June 29, 2005).

'? See e.g., Aubrey, 2004 WL 2378400, at *8 (nontestimonial: no

“structured [police} questioning, just an open-ended invitation for . . . [the

witnesses] to tell their story”); Barnes, 854 A.2d 208 (nontestimonial:

voluntary accusation); Davis v. State, 2005 WL 183141, *4 (Tex. App.

Jan. 27, 2005) (same); but see Talley v. Commonwealth, 2005 WL 387443,

at *3 (Ky. Feb. 17, 2005) (nontestimonial: government officers involve-

ment in statement’s production irrelevant).

* See, e.g., King, 2005 WL 170727, at *5 (nontestimonial: statement

made to police officer in noncustodial setting and without indicia of for-

mality); but see Barnes, 854 A.2d at 211 (nontestimonial: statement made

at police station).

'S See, e.g., Davis, 2005 WL 183141, at *4 (nontestimonial: police did

not consider who made accusatory statement to be “a suspect, an accom-

plice, or a co-conspirator”); but see Wright, 686 N.W.2d at 302 (nontesti-

monial: 911 caller expects to maintain “cloak of anonymity”).

'® See, e.g, People v. R.F., 825 N.E.2d 287, 295 (Ill. App. 2005)

(Crawford “applies only to statements to government officials”); Heard v.

Kentucky, 2004 WL 1367163, at *5 (Ky. App.) (accusatory statement to

grandmother and doctor nontestimonial, but accusatory statement to po-

lice testimonial), review granted, (Ky. 2005); but see Barnes, 854 A.2d at

211 (nontestimonial: statement made to police at police station).

"” See, e.g.. People v. Bradley, 2005 WL 1774080 at *7 (N.Y. App.

Div. July 28, 2005) (what is testimonial turns on “the objective of the

person posing the question”); Corella, 18 Cal. Rptr. 3d at 776 (nontesti-

monial: 911 call; 911 operator was “not conducting a police interrogation

in contemplation of a future prosecution”); Stancil, 866 A.2d at 812-13

(nontestimonial: made~to police officers who were “securing scene”);

Hembertt, 696 N.W.2d at 483 (same); but see Hammon, 829 N.E.2d at 456

(what is testimonial turns on motive of questioner and responder).

'® See Pet. at 10-11 (cases holding excited utterances are nontestimo-

nial); see also Brun, 2005 WL 1797451 (same); Key, 2005 WL 467167

(same); but see Stancil, 866 A.2d at 809°(some excited utterances are

testimonial); Hembertt, 696 N.W.2d at 482 (same); Hammon, 829 N.E.2d

at 456 (motives of questioner and responder are dispositive).

17

abuses, see Point II infra) vary, and it is unclear which factors

(or combination thereof) are dispositive. See 541 U.S. at 63

(unpredictability of multi-faceted Roberts test “fail[ed] to

provide meaningful protection from even core confrontation

violations”). This test is a return to the Ohio v. Roberts

regime so pointedly rejected in Crawford.

; *> ¢+ * &

Like Crawford before it, Mr. Davis’s case is a “self-con-

tained demonstration” of the “unpredictable and inconsistent

application” of the nght to confrontation, 541 U.S. 66, which

this Court should use to clarify which of the lower court

analyses more accurately reflects its vision of the confronta-

tion right. But Davis alone cannot capture the depth and

breadth of the post-Crawford confusion, and there is every

reason to believe that, even if this Court clarifies the applica-

tion of Crawford to 911 calls, further clarification will none-

theless be required in the responding officer context. See nn. _

9-18 supra (documenting the varied and conflicting factors

upon which courts are relying to deny the right to confron-

tation). Accordingly, this Court should also consider granting

review in Hammon v. Indiana, Docket No. 05-5705. This

Court has frequently used the practice of granting review in

two cases involving different permutations of the same issue

in order to provide more comprehensive guidance to lower

courts, see note 2 supra, and such a procedure would be

especially appropriate here, where the legal confusion stem-

ming from this Court’s Crawford decision is widespread.

Il. THIS COURT SHOULD CLARIFY THAT AC-

CUSATORY STATEMENTS ABOUT COM-

PLETED CRIMES TO KNOWN GOVERNMENT

OFFICIALS ARE “TESTIMONIAL.”

Like the tnal of Sir Walter Raleigh, Mr. Davis’s trial was a

“paradigmatic confrontation violation,” Crawford, 541 U.S.

at 52, when viewed through the lens of the common law.

Raleigh’s complaint and his contemporaries’ shame was that

18

he had been prevented from confronting his accuser, Lord

Cobham, in court and that Cobham’s unconfronted statements

to the Privy Council were used to convict him. /d. at 44, 62.

Like Raleigh, Mr. Davis was never permitted to confront Ms.

McCottry, upon whose out-of-court accusations made to

a known government agent—described by the prosecutor

in closing as “testimony”—the government’s entire case re-

lied. But although the Washington court acknowledged that

McCottry’s identification of Davis as her assailant was “es-

sential to the prosecution of this case,” it deemed her state-

ments “nontestimonial and properly admitted.” Pet. App. 7.

In so doing, it ignored their accusatory nature and deemed

significant that they were the product of a 911 call, not “an in

custody interrogation by police.” /d. at 5.

The text and history of the Sixth Amendment preclude a

definition of “testimonial” statements that authorizes the in-

troduction at trial of facially accusatory out-of-court state-

ments to known government agents without any opportunity

for cross-examination. First, a person accusing someone of

a past crime—an accuser—is the quintessential “witness

against” the “accused” in a “criminal prosecution” contem-

plated by the Sixth Amendment. U.S. Const. amend. VI; see

also Crawford, 541 U.S. at 43 (the Confrontation Clause has

its roots in the “right to confront one’s accusers . . . [in]

Roman times”); Bruton v. United States, 391 U.S. 123, 138

- (1968) (Stewart, J., concurring) (“[A]n out-of-court accusa-

tion is universally conceded to be constitutionally inadmissi-

ble against the accused”). Indeed, as in Mr. Davis’s case, an

accuser’s statements typically serve as the foundation, if not

the whole, of the prosecution’s case. “[T]}he legal community

at the time of the framing understood that at least a witness

who made an accusation against the defendant was the equiva-

lent of a witness against him.” Robert P. Mosteller, Remak-

ing Confrontation Clause and Hearsay Doctrine Under the

Challenge of Child Sex Abuse Prosecutions, 1993 VU. Ill. L.

Rev. 691, 750 (discussing King v. Brasier, 168 Eng. Rep. 202

19

(1779) (complainant impermissibly acted as a witness against

the defendant by virtue of the introduction of her unsworm

accusations at trial)).

Second, government involvement in procuring a witness

—statement about a completed crime—regardless of its precise

form—also should render a statement “testimonial.” As the

Framers were well aware, government involvement in secur-

ing witness statements always carries the potential for abuse

because it places the government in the position of ensuring

that the government’s side of the story is the one the witness

tells. Crawford, 541 U.S. at 53, 56 n.7. “Neutral” govern-

ment officers, 541 U.S. at 66, are trained to elicit the precise

information the government needs to sustain a prosecution.

See, e.g., Pet. App. 21-23.' There is only added danger when

the statements are elicited in haste, shortly after an alleged in-

cident, by government agents making an initial assessment of

the situation based on incomplete information because the

government may unwittingly pursue charges that only adver-

sarial questioning could expose as exaggerated or unfounded.

For these reasons, the involvement of known government

officials in securing witness statements also triggered (but was

not the sole prerequisite for) the common-law confrontation

right. A well-documented abuse of that right arose from the

introduction of sworn statements to justices of the peace (the

closest analog to our modern-day police) in lieu of live wit-

ness testimony. 541 U.S. at 43. Similarly, much of the evi-

dence introduced against Sir Walter Raleigh “in derogation of

the common law” was elicited from Lord Cobham by the

'? In the instant case, the 911 operator tracked the questions scripted in

the “Police Incident Interview Techniques” set forth in the city’s standard

operating procedures—questions that were drafted knowing that arrests

could be made based on information gathered from 911 callers. Pet. App.

9n.5 & 21-28; Pet. at 2 (quoting Standard Operating Procedures, Section

4, at 29).

20

Privy Council. Jd. at 44, 46.7 Thus, just as “(t]he Framers

would be astounded to learn that ex parte testimony could be

admitted . . . because it was elicited by ‘neutral’ government

officers,” id. at 66, the Framers would be appalled at the

widespread practice of convicting defendants based in large

part on “dial-in” 911 testimony or officers’ hearsay accounts

of complainants’ on-the-scene accusations. Richard Friedman

& Bridget McCormack, Dial-in Testimony, 150 U. Pa. L.

Rev. 1171 (2002).

There is no textual, historical, or common sense justifica-

tion for a definition of “testimonial” that compels confronta-

tion for statements derived from “in custody interrogation”

and that shelters from adversarial testing accusations that

have been made “informally” and in haste to government

agents. 541 U.S. at 61 (“the Clause’s ultimate goal is to

ensure reliability of evidence” through cross-examination).

That the Washington Supreme Court and many like it have

determined that the latter statements are not “testimonial”

under Crawford illustrates the critical need for this Court to

provide further guidance on this issue.

CONCLUSION

For the reasons set forth above, the Petition should be

granted.

° The historical record does not reflect that the Framers were con-

cemed exclusively, or even primarily, with ensuring confrontation only

for those statements made in response to coercive or overly suggestive

questioning by government officials. Indeed, many common-law abuses

involved witnesses (apparently labeled “bringers”) who made statements

to the Justices of the Peace and who “were extremely willing witnesses”—

thus rendering leading questions “unnecessary.” Robert P. Mosteller,

Crawford v. Washington: Encouraging and Ensuring the Confrontation of

Witnesses, 39 U. Rich. L. Rev. 511, 568 (2005).

PAMELA HARRIS

Co-Chair Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1625 Eye Street, NW

Washington, D.C. 20006

(202) 383-5386

Respectfully submitted,

TIMOTHY P. O’ TOOLE

Counsel of Record

CATHARINE F. EASTERLY

ANDREA ROTH

CORINNE BECKWITH

PUBLIC DEFENDER SERVICE FOR

THE DISTRICT OF COLUMBIA

633 Indiana Avenue, NW

Washington, D.C. 20004

(202) 628-1200

I

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