Amicus Curiae Brief — Davis v. Washington

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Nos. 05-5224 and 05-570

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IN THE

Supreme Court of the United States

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ADRIAN MARTELL DAVIS,

Petitioner,

—_v.—

WASHINGTON,

Respondent.

HERSHEL HAMMON,

Petitioner,

—_—V—

INDIANA,

Respondent.

ON WRITS OF CERTIORARI TO THE SUPREME COURTS OF

WASHINGTON AND INDIANA

BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION, THE ACLU OF

WASHINGTON AND THE INDIANA CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONERS

Steven R. Shapiro Jordan Gross

Lenora Lapidus Counsel of Record

Emily Martin Yarmouth Wilsdon Calfo PLLC

American Civil Liberties The IDX Tower

Union Foundation 925 Fourth Avenue, Suite 2500

125 Broad Street, 18th Floor Seattle, WA 98104

New York, NY 10004 (206) 516-3800

212) 549-2500

(Counsel continued on inside cover)

BEST AVAILABLE COPY

Ken Falk

Indiana Civil Liberties Union

1031 East Washington Street

Indianapolis, IN 46202

(317) 635-4059

Aaron Caplan

ACLU of Washington

705 Second Avenue

Seattle, WA 98104

(206) 624-2184

INTEREST OF AMICI

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

Ill.

TABLE OF CONTENTS

Out-Of-Court Statements Are “Testimonia!”

Under The Confrontation Clause. And Thus

Inadmissible, If a Reasonable Person Under

The Circumstances Would Understand That

The Statements Could Be Used For Cnminal

Investigation Or Prosecution................cccceeeeee

Hammon: The Significance Of

IID siceisstricieestinsciientedenigriamiapiisiinendsndeieaine

Davis: The Speaker’s Motivation

PETITE AE CTE TA aR ON a

The Confrontation Clause Is Not

Incompatible With Effective Domestic

Violence Prosecutions............................c....ssessss.

B. Sates Have A Variety Of Available

Tools To Facilitate Domestic

Violence Prosecutions Without

Sacrificing Confrontation Clause Values.......

OPP Pee ee eee eee eee eee eee eee eee

Tee eee Ce Pee Pe eee eee eee eee eee eee eee eee

SEE EEE EERE EEE EEE EEE EEE EEE EHH EEE EEE EEE EEE HEHEHE EH

C. The Fight Against Domestic Violence

Should Not Be Measured Solely In

iad sertsinrnleieanlaiedelcin

CONCLUSION

ERE EEE EEE EEE EEE EEE EEE EEE EE EEE EERE HEHEHE EEE EEE

il

TABLE OF AUTHORITIES

Cases

Bourjaily v. United States,

GED US. EF UETIID ccceccosesscnsnincssintntissnsiomstaiaamnmiaann 8

Crawford v. Washington,

SOE CD. FE GOD tcccinccsconsssinssvintsisetitniaminaiaaaa passim

Hammon vy. State, 829 N.E.2d 444

nt. DUET: FID eircsensnsvesintisaisiibeniiimanintmetain 3, 11,13, 17

Mattox v. United States,

BSG UE. FEF CHG GD cicicccenssiccstcsctstevssisuenivenemnmamenia 18

Ohio v. Roberts, 448 U.S. 56 (1980) 00... ceeecseeeeseeeeeeeeeeees 6

People v. Corella, 18 Cal. Rptr.3d 770

CGE. Co, Bae, FBG) ccerecssccecesssissinstnnsetsesseimanmmntanen 16

People v. Moscat, 3 Misc. 3d 739

GOV. Bem. CR. FDO oncecscsvisenarsciassstisststinensesimamaaa 16

People v. West, 823 N.E.2d 82

CR. Aten: CO. BD cncecescccsnsininsntssotssiesinnniniaaae 17

Pointer v. Texas, 380 U.S. 400 (1965) ...........cccceeeeeeee suiteclara 5

State v. Banks, No. 03AP-1286,

2004 WL 2809070

Co CL. Aap. That. 7, BID ccisicinitnseninitnsisitdiemasiaanmaaa 16

State v. Davis, 111 P.3d 844

CORE, DID cxcsccecisicitidittssehicssisieiaiipaaiaaal passim

Town of Castle Rock v. Gonzales,

US. _, 125. S.Ct. 2796 (2005) -..cscsceveee-

U.S. v. Baker, 2005 WL 3369204

ee

U.S. v. Brun,

S16 F.36 FOSS Cie. 2005) .0..ccccceccreccccessesceees

U.S. v. Cromer,

389 F.3d 662 (6™ Cir. 2004) o..ceccceccccecccessesesseees

U.S. v. Hinton, 423 F.3d 355

a ceennien

U.S. v. Saget, 377 F.3d 223

En

White v. Illinois, 502 U.S. 346 (1992), «0.0.0.0

Other Authorities

Akhil Reed Amar, Twenty-Fifth Annual

Review of Criminal Procedure — Preface.

Sixth Amendment First Principles,

84 Geo. L.J. 641 (1996). ..cccccccecccsseescsvecssseeeseeees

Ronet Bachman & Linda E. Saltzman,

U.S. Department of Justice,

Violence Against Women: Estimates

from the Redesigned National Crime

Victimization Survey (1995) .........ccccccecesereeeeees

iV

icleenienaniaie 6

Douglas E. Beloof & Joel Shapiro,

Let the Truth Be Told: Proposed

Hearsay Exceptions to Admit Domestic

Violence Victims’ Out of Court

Statements as Substantive Evidence,

11 Colum. J. Gender & L. 1 (2002)

-

Angela Corsilles, Note, No-Drop Policies

in the Prosecution of Domestic Violence

Cases: Guarantee to Action or Dangerous Solution ?,

63 Fordham L. Rev. 853 (1994)

Laura Dugan et al., Exposure Reduction

or Retaliation? The Effects of Domestic

Violence Resources on Intimate Partner

Homicide, 37 Law & Soc’y Rev. 169 (2003)

Deborah Epstein, Effective Intervention in

Domestic Violence Cases: Rethinking

the Roles of Prosecutors, Judges,

and the Court System,

1 Yale J. L. & Feminism 3 (1999) ......0..0..ee 20, 22, 23

Deborah Epstein et al., 7ransforming Aggressive

Prosecution Policies: Prioritizing Victims’

Long-Term Safety in the Prosecution of

Domestic Violence Cases, 11 Am. U.J.

Gender Soc. Pol’y & L. 465 (2003) .........0....cccceeeee. 19, 20

Richard D. Fnedman, Confrontation:

The Search for Basic Principles,

86 Geo. L.J. 1011 (1998)

Richard D. Fnedman, Grappling with

the Meaning of "Testimonial,"

71 Beooklyn L.Rev. 241 (2005) ............cccccecsercecssessoncsones 12

Barbara Hart, Battered Women and the

Criminal Justice System, 36 Am.

Behavioral Scientist 624 (1993) ..........0..20.0. 19, 20, 21. 23

Tom Lininger, Prosecuting Batterers After Crawfora,

a 8 8 FR ae eee 19, 23

Martha R. Mahoney, Legal Images of Battered Women:

Redefining the Issue of Separation,

PP Wine CNG CIID tei cintnitciinicsiccicgmeiiiocmnndatnibaitiiia 20

Robert P. Mosteller, "Testimonial" and the Formalistic

Definition — The Case for an "Accusatorial” Fix,

area 12

Raymond Paternoster et al., Do Fair Procedures Matter?

The Effect of Procedural Justice on Spouse Assault,

31 Law and Soc'y Rev. 163 (1997) ..........cccccscssscesseceteees 21

Melanie Randall, Domestic Violence and the

Construction of ‘Ideal Victims’:

Assaulted Women's “Image Problems”

in Law, St. Louis Univ. Pub. L. Rev. 107(2004) ........... 22

Emily J. Sack, Battered Women and the State:

The Struggle for the Future of

Domestic Violence Policy,

2004 Wis. L. Rev. 1657(2004) ............ccceeeeeeeees 21, 22, 23

v1

Andrew E. Taslitz, What Remains of Reliability: Hearsay

and Freestanding Due Process After Crawford v.

Washington, 20-Sum. Crim. Just. 39 (2005) ................ 7,8

Vi

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 500,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. The ACLU

Women's Rights Project, founded in 1972, seeks to advance

equality and justice for women and girls, including vigorous

protection for women facing domestic abuse. The ACLU of

Washington and the ACLU of Indiana are statewide affiliates

of the ACLU.

The ACLU has a long-standing commitment to the

faimess of criminal trials, including the nght of the

cnminally accused to confront the witnesses against them.

The ACLU accordingly appeared as amicus curiae in

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

reinvigoration of the Confrontation Clause that Crawford

embraced. The ACLU also has a long-standing commitment

to equal nghts for women, which are endangered when the

state fails to take appropriate action to punish and deter

violence against women. In furtherance of that commitment,

the ACLU recently appeared as amicus curiae in Town of

Castle Rock v. Gonzales, __ US. __, 125 S.Ct. 2796

(2005), in support of a constitutional claim for damages filed

by a woman whose three children were killed by her

estranged husband after the police failed to enforce a

protective order.

' Pursuant to Rule 37.3, letters of consent to the filing of this brief have

been lodged with the Clerk of the Court. Pursuant to Rule 37.6, counsel

for amici curiae states that no counsel for a party authored this brief in

whole or in part and no person other than amici curiae, its members or its

counsel made a monetary contribution to the preparation of this brief.

l

Lower courts have struggled in defining and applying

the principles of Crawford, especially in domestic violence

prosecutions, where pressure to rely on a victim’s out-of-

court statement is frequently enhanced y the fact that many

victims of domestic violence are unable or unwilling to

testify at tnal. For reasons set forth below, we believe that a

proper understanding of the Confrontation Clause requires

reversal of the judgments in both Hammon and Davis.

Respect for the Confrontation Clause, however, must not

become an excuse for non-enforcement of domestic violence

laws. Domestic violence remains a serious social problem

that the state has a duty to address through constitutionally

appropriate means, some of which are also discussed below.

The proper resolution of these cases is therefore a

matter of significant interest to the ACLU and its members.

STATEMENT OF THE CASE

The cases before the Court involve two types of out-

of-court statements routinely admitted in evidence-based

domestic violence prosecutions — statements by victims to

police officers responding to the scene of a domestic

disturbance and statements to 911 operators descnbing a

recent or contemporaneous act of violence.

In Hammon, police responded to a report of a

domestic disturbance. On the scene, they interviewed Amy

Hammon, who stated in response to police questioning that

she had been assaulted by her husband Herschel. Officers

gave her an affidavit to fill out and sign reciting her

allegations. The state then charged Herschel Hammon with

domestic battery. Amy Hammon did not appear as a witness

at his bench trial, although she had been subpoenaed by the

prosecution. In her absence, and over defendant’s objection,

one of the responding officers testified to Amy Hammon’s

2

-_

oral statements and her affidavit was admitted into evidence.

This was the only evidence offered to prove the cnme of

domestic battery.

Herschel Hammon was tried before this Court

decided Crawford and the tnal court admitted the statements

at issue under two hearsay exceptions. Following Crawford,

the Supreme Court of Indiana ruled that Amy’s oral

statement was not testimonial within the meaning of

Crawford and was thus properly admitted. It reached the

opposite conclusion with regard to the wntten statement, but

nevertheless concluded that its admission was harmless error

because the case was tned before a judge rather than a jury.

Hammon v. State, 829 N.E.2d 444, 457-59 (Ind. Sup.Ct.

2005). The court construed Crawford as requiring a

subjective inquiry into whether either the questioner or the

declarant was “principally motivated by a desire to preserve

the statement” for potential use in future legal proceedings.

Id. at 456.

In Davis, a caller dialed a 911 operator and hung up.

The operator called back: and spoke to Michelle McCottry,

who stated in response to the operator's questions that she

had been assaulted by her former boyfriend, Adrian Davis.

McCottry did not testify at the subsequent trial for felony

violation .of a domestic no-contact order. Instead, the

prosecution used portions of the recording of her

conversation with the 911 operator as the only evidence

identifying Davis as the assailant.

The Supreme Court of Washington first observed that

Crawford requires an examunation of “the circumstances of

the 911 call in each case to determine whether the declarant

knowingly provided the functional equivalent of testimony to

a government agent.” State v. Davis, 111 P.3d 844, 850

(Wash.Sup.Ct. 2005). It then held that “the portion of

McCottry’s 911 call that identified Davis as her assailant was

3

non-testimonial and properly admitted” because they were

made as part of an ongoing emergency situation and there

was no evidence that she intended her statements to be used

for prosecution purposes. /d. at 851.

SUMMARY OF ARGUMENT

The present cases involve the relationship between

two vital concerns. First, criminal trials must be conducted

fairly and in accordance with the Sixth Amendment’s

Confrontation Clause. Second, violence against women, and

domestic violence in particular, is a significant social

problem that has too often failed to receive the attention it

deserves from the criminal justice system. These concerns

cannot and should not be treated as mutually incompatible.

Victims of domestic violence have a night to expect that laws

designed for their protection will be enforced against their

abusers, and those accused of domestic violence have a nght

to cross-examine the witnesses against them in any criminal

proceeding.

If the victim is willing to testify, the solution is

simple. In many cases, however, domestic violence victims

are unwilling to testify for various reasons, including the fear

of further victimization. Many prosecutors in the past used

that reluctance as an excuse to abandon prosecutions they

were not enthusiastic about in the first instance. That, in

turn, produced a public backlash that forced the law

enforcement community to treat domestic violence more

seriously. In response, prosecutors have increasingly sought

to overcome the problem of reluctant domestic violence

witnesses by employing what is sometimes called an

"evidence-based prosecution” or "victimless prosecution,”

where the victim's out-of-court description of the crime is

entered into evidence in lieu of live testimony from the

4

witness. Unfortunately, that has merely replaced one

problem with another.

As this Court explained in Crawford, the

Confrontation Clause prohibits the use of testimonial

evidence that has not been subject to cross-examination even

if there are indicia of reliability that would otherwise satisfy

the rules of evidence governing hearsay. 541 U.S. at 62.

That is because the Confrontation Clause serves a broader

purpose than the hearsay rules. Among other things, the

framers of the Constitution were well aware that the reliance

on ex parte evidence undermines the credibility of the

judicial process regardless of how reliable the evidence might

be in particular cases. See, e.g., Pointer v. Texas, 380 U.S.

400, 404 (1965). By its very nature, such ex parte evidence

is also more susceptible to manipulation. See, e.g.,

Crawford, 541 U.S. at 56 n.7.

In Crawford itself, there was little dispute that the

challenged statement was in fact testimonial and thus no need

for the Court to define the limits of that term with any

precision. These cases arise in a context that has proven

more vexing for the lower courts. In our view, the purposes

of the Confrontation Clause are best served by an objective

test that does not tur on the speaker’s motivation but, rather,

asks whether a reasonable person under the circumstances

would have understood that any accusatory statements could

be used for cnminal investigation or prosecution. That is the

test we proposed in Crawford, and we continue to believe it

is correct. See 541 U.S. at 52.

Because neither court below applied this standard,

neither judgment can be sustained. A strategy to address

domestic violence cannot be premised on an end run around

the Constitution. | At the same time, compliance with the

Constitution does not and cannot relieve government officials

of their obligation to develop an effective response to

5

domestic violence. For example, experience has shown that

domestic violence victims are more likely to testify if they

have access to- advocates who explain the process, help

victims ensure their safety, and work with victims to deal

with the legal, economic, and medical issues stemming from

the violence. This is not surpnsing, but it is often

overlooked.

ARGUMENT

I. OUT-OF-COURT STATEMENTS ARE

"TESTIMONIAL" UNDER THE

CONFRONTATION CLAUSE, AND THUS

INADMISSIBLE, IF A REASONABLE PERSON

UNDER THE CIRCUMSTANCES WOULD

UNDERSTAND THAT THE STATEMENTS

COULD BE USED FOR’ CRIMINAL

INVESTIGATION OR PROSECUTION

The compact language of the Confrontation Clause --

"In all criminal prosecutions, the accused shall enjoy the

nght ... to be confronted with the witnesses against him" --

serves many purposes. See Akhil Reed Amar, 7wenty-Fifth

Annual Review of Criminal Procedure — Preface: Sixth

Amendment First Principles, 84 Geo. L.J. 641, 643, 689

(1996). A primary goal is to ensure that evidence against the

accused is reliable. But an exclusive focus on confrontation

as a mere proxy for quality of evidence led to~ the

unpredictable and ultimately unworkable framework of Ohio

v. Roberts, 448 U.S. 56 (1980), which linked Confrontation

Clause analysis with hearsay rules of evidence in a manner

that Crawford ultimately rejected. As confrontation law

develops under Crawford, courts should not ignore these

other values.

6

The requirement of confrontation at trial affects law

enforcement before tnal, by removing an incentive

for police to fabricate inculpatory out-of-court

statements or to procure them through coercion or

duress. The declarant's appearance for cross-

examination "permits the uncovering and revealing of

intentional or negligent governmental abuses in the

creation of testimony, abuse that leaves the individual

at the mercy of a vastly more powerful state and that

may expose the innocent to conviction at the hands of

vindictive or incompetent police or prosecutors.”

Andrew E. Taslitz, What Remains of Reliability:

Hearsay and Freestanding Due Process After

Crawford v. Washington, 20-Sum. Crim. Just. 39, 41

(2005).

At tnal, confrontation is also a matter of simple

fairness for the accused, giving defendants the best

opportunity to mount their challenge to the state's best

evidence. It has also been recognized since Biblical

times that some form of structured face-to-face

meeting between the accuser and the accused is at the

core of justice. Confrontation thus has a moral

component above and beyond its utility as a truth-

finding mechanism. This is why the Sixth

Amendment makes confrontation a "right" of the

accused, and not merely a direction to the courts.

Confrontation also has benefits after tnal. By

ensuring that the state brings its best evidence to trial,

and by giving the defendant a fighting chance to

contest it, public confidence in the tnal's result is

enhanced, no matter what the outcome. As with the

nght to tnal by jury, “there are good political and

symbolic reasons” to insist on confrontation during

criminal tnals; it too "promotes the perceived fairness

-

and legitimacy of the justice system." Taslitz, What

Remains of Reliability, 20-Sum. Crim. Just.at 42,

Taking these and other values together, confrontation

becomes more than just an evidentiary tool — it is a

fundamental characteristic of the “way we do judicial

business." Richard D. Friedman, Confrontation: The Search

for Basic Principles, 86 Geo. L.J. 1011, 1028-29 (1998). The

ACLU submits here, as it did in Crawford, that statements

are testimonial -- and hence not admissible for the truth of

the matter asserted in the absence of confrontation -- when

they are made under circumstances in which a reasonable

person would understand that the statements could be used

for cnminal investigation or prosecution.

The standard proposed by the ACLU is consistent

with the text of the Confrontation Clause, which requires the

production at tral of a "witness against" the accused.

Whatever else might be encompassed in the term, it is

certainly reasonable to conclude that one is acting as a

“witness against” a person when one knowingly tells the

police that the person has engaged in criminal activity, both

because of the accusatory nature of the statement and

because of the foreseeable likelihood that the statement will

be used as the basis for further law enforcement activity. To

be sure, many statements are made to police by persons who

are not knowingly acting as witnesses against another, as

when a conspirator makes a statement to an undercover

officer in the conspiracy. See Bourjaily v. United States, 483

U.S. 171. 183-84 (1989). But the words "witness against"

cannot be satisfactorily defined in any way that would

exclude situations where a person knowingly delivers to the

police an accusation that another person has committed a

crime.

Focusing on a statement’s content, rather than its

\ form, is entirely consistent with Crawford. There, the Court

8

categorically rejected the notion that the Confrontation

Clause only applies to in-court testimony. 541 U.S. at 50-51.

It rejected the notion that a person is only acting as a

"witness against" the accused when he gives a statement

under oath. Jd. at 52. It rejected the notion that a testimonial

statement must be in wniting. (Indeed, the excluded

statements by Sylvia Crawford at the police station were

oral.) And finally, Crawford was carefully written to allow

for a more expansive definition of testimonial statements to

develop in later cases. /d. at 68 (the Confrontation Clause

“applies at a2 minimum to pnor testimony [in a courtroom]

and to police interrogations,” but other statements may be

testimonial as well).

The proposed test also furthers the interest in

predictability articulated in Crawford because it is an

objective inquiry. As such, it avoids the dangers inherent in

allowing courts to resolve admissibility questions based on

the type of subjective inquines often permitted or required

under hearsay law that the Court rejected as constitutionally

infirm in Crawford. Under an objective inquiry, courts

should not rely on a particular declarant's subjective reason

for making a statement in determining whether it is

testimonial. Thus, an objective inquiry will avoid the

phenomenon, on full display in the present cases, of judges

speculating about the state of mind of an absent person to

determine his or her unspoken motivation for making an

accusatory statement to the police. Such determinations,

naturally, are unassailable precisely because the defendant

cannot question the witness about the circumstances

surrounding the statement. A test that requires a judge to

divine an absent witness’ subjective motivations will

necessanly generate inconsistent results, as it did under the

Roberts framework.

These and similar reasons have convinced many

federal courts of appeals that the best measure of a

testimonial statement under Crawford is whether a

reasonable person in the declarant's circumstances would

expect the statement to be the basis for further investigation

or prosecution by law enforcement. E.g., U.S. v. Hinton, 423

F.3d 355, 359 (3 Cir. 2005) (confrontation right applies to

"statements that were made under circumstances which

would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.");

U.S. v. Cromer, 389 F.3d 662, 674 (6" Cir. 2004)

("Statements 'made to the authorities who will use them in

investigating and prosecuting a crime, ... made with the full

understanding that they will be so used,’ are precisely the sort

of accusatory statements the Confrontation Clause was

designed to address") (citation omitted); U.S. v. Saget, 377

F.3d 223, 229 (2™ Cir.2004) ("the [Crawford] Court would

use the reasonable expectation of the declarant as the anchor

of a more concrete definition of testimony.").

Il. HAMMON: THE SIGNIFICANCE OF

INTERROGATION

The fundamental mistake of the Indiana Supreme

Court in Hammon was to assume that the examples of

testimonial statements provided by Crawford (in-court

tesumony and police interrogations) constituted an

exhaustive list that relieved it of any further obligation to

assess whether the admission of Amy Hammon’s statement

was consistent with the underlying purposes of the

Confrontation Clause. Based on that misunderstanding, the

Indiana Supreme Court then focused its attention on whether

the oral conversation between Amy Hammon and the police

was an interrogation. The court concluded that it was not an

interrogation because the officers’ questions were not

10

"attempts by police to pin down and preserve statements” but

instead were "efforts directed to determining whether an

offense has occurred, protection of victims or others, or

apprehension of a suspect.” 829 N.E. 2d at 457. The court

also considered it significant that Amy Hammon's

"motivation was to convey basic facts," and that there was no

"suggestion" that Amy intended her oral statements to be

preserved or otherwise used against her husband. /d. at 458.

As an initia] matter, the Indiana court relied on an

inappropriately cramped notion of what constitutes an

interrogation. Crawford made clear that its use of the term

interrogation was not limited to the facts of that case

(extended in-custody questioning of a potential suspect).

Instead, the term is to be used in its "colloquial, rather than

any technical legal, sense" for Confrontation Clause

purposes. 541 US. at 53 n.4. . See also U.S. v. Baker,

2005 WL 3369204 at *3 (11th Cir. 2005) (citations omitted)

("As the Crawford Court used the term ‘interrogation’ in the

‘colloquial’ and not 'technical legal’ sense, statements given in

a formal interrogation setting at a police station and witness

statements given to an investigating police officer are both

considered "testimonial’.").

The facts of Hammon clearly fit within the colloquial

understanding of an interrogation. Upon arriving at her home,

the police questioned Ms. Hammon about suspected cnminal

activity. 829 N.E.2d at 446-47. When she initially

responded that nothing was the matter, the police

investigated the scene and then returned and renewed their

questioning as to what had occurred. /d. Upon this renewed

questioning, she stated that her husband had assaulted her.

At a minimum, repeated police questioning of a witness

about a suspected crime constitutes interrogation under any

reasonable definition of that term.

1]

-

Moreover, if the difference between interrogation and

other types of questioning hinges on particular indicia of

formality, the Confrontation Clause inquiry can be easily

manipulated by police, prosecutors, and the courts:

If certain characteristics are deemed crucial for

treating a statement as testimonial, then repeat players

involved in the creation or receipt of prosecution

evidence will have a strong incentive, and often ready

means, to escape that treatment, simply by avoiding

those characteristics. We have seen this already.

Some courts have indicated that even if a statement

made knowingly to the police accuses a person of a

crime, it is not testimonial unless it is the product of a

formal interrogation conducted after the police have

determined that a cnme has been committed. Some

courts have held that, so long as the police can be

deemed to have been assessing and securing the

scene, even a statement making an express criminal

accusation is not testimonial. As a result, we have

seen police advised to try to secure accusatory

statements before beginning what would necessarily

be deemed a formal interrogation.

Richard D. Friedman, Grappling with the Meaning of

"Testimonial," 71 Brooklyn L.Rev. 241, 248-49 (2005); see

also Robert P. Mosteller, “Testimonial” and the Formalistic

Definition — The Case for an "Accusatorial" Fix, 20-Sum.

Crim. Just. 14, 20 (2005) ("If the form of the statement is

important to its testimonial nature ... then governmental

officials who receive the statement can consciously

manipulate those circumstances to exclude the statement

from coverage."). As the Sixth Circuit recently observed: “If

the judicial system only requires cross-examination when

someone has formally served as a witness against a

12

defendant, then witnesses and those who deal with them will

have every incentive to ensure that testimony is given

informally." U.S. v. Cromer, 389 F.3d at 675.

More fundamentally, however, the Indiana court’s

focus on the term “interrogation” itself is misplaced. The

better approach is not to debate the definition of

“interrogation” (a word not found in the Confrontation

Clause), but to focus on whether Amy Hammon was a

"witness against" Herschel Hammon when she told police he

had assaulted her. She plainly was, because a reasonable

person in her situation would know that telling the police that

Herschel assaulted her would almost certainly lead to further

investigation and might well result in Herschel’s arrest.

Introduction of the statement at trial carries the same

potential for law enforcement manipulation and untested

accusation as the ex parte affidavits used against Sir Walter

Raleigh. From the defendant's point of view, Amy

Hammon’s oral statement as recounted by the police is

equally damning as the affidavit recounting the same facts

that the Indiana court found itself bound to exclude. 829

N.E.2d at 458. Both are equally impossible to test before

thefinder of fact.

By resolving Hammon with reference to the broader

question, the Court can avoid the exercise of choosing among

competing definitions of “interrogation.” It would also avoid

limiting the analysis to cases in which the statements to the

police are in response to questioning. It is inevitable that

there will be statements made to police officers at a crime

scene that are volunteered or unsolicited. Answering only

the narrow question of whether statements in response to

police questioning constitute an “interrogation” will leave

courts and litigants with no guidance as to other types of

statements made to police investigating a cnme, even where

those statements are clearly accusatory. And, undoubtedly, it

13

will spawn a whole new round of litigation around the issue

of when a particular statement is truly “in response” to an

interrogation, as opposed to volunteered or unsolicited.

The role of the police in procuring the challenged

statement is often relevant, but not dispositive to the

Confrontation Clause analysis. For example, if Amy

Hammon had wntten her statement on her own and delivered

it to the police, the Confrontation Clause would still have

barred its admission in court. On the other hand, Crawford

understandably expressed a particular concern with

government involvement in producing or eliciting an out-of-

court statement, a concern the ACLU shares. /d. at 52

("Police interrogations bear a striking resemblance to

examinations by justices of the peace in England."); /d. at 53

("The involvement of government officers in the production

of testimonial evidence presents the same nsk [as justices of

the peace conducting examinations under the Manan

statutes.") Police questioning is highly relevant to whether a

declarant would reasonably understand that his or her

statements would be available for later use in a cnminal

prosecution or _ investigation. Speakers reasonably

understand that police are gathering evidence for prosecution

when they question a person about a cnme. Properly

understood, therefore, the existence of police questioning 1s

usually sufficient to establish that a statement is testimonial,

but it 1s not necessary.

The objective standard focusing on a reasonable

person’s understanding offers multiple advantages over the

test relied on by the Hammon court: it is simple, consistent

with the constitutional language, resistant to word games, and

does not hinge on speculative assumptions about subjective

motivations of witnesses (the most important of whom was

absent).

14

Ill. DAVIS: THE SPEAKER'S MOTIVATION AND

DEMEANOR

Where the primary error in Hammon was its

misplaced focus on whether the police questioning of Amy

Hammon constituted “interrogation,” the pnmary error in

Davis was its misplaced focus on the subjective motivation

and demeanor of the witness, Michelle McCottry. The

Washington Supreme Court reasoned that statements within a

911 call should be classified according to whether they are a

"cry for help to be rescued from peril" (nontestimonial) or

whether they are "generated by a desire to bear witness"

(testimonial), irrespective of whether the content of the cry

for help also implicates the defendant in a cnme. See, e.g.

State v. Davis, 111 P.3d at 849. The court then charactenzed

Ms. McCottry’s statement as the former rather than the latter,

in part because of “her crying and hysterical” demeanor. /d.

at 850.

This approach undermines the purposes of the

Confrontation Clause. From the perspective of the defendant

whose confrontation nght is at stake, it does not matter

whether the witness against him is motivated by the specific

subjective desire to have the statement be used in a later tral.

White v. Illinois, 502 U.S. 346 (1992), properly rejected the

suggestion that the Confrontation Clause would hinge on

whether “the statement has been made for the principal

purpose of accusing or incriminating the defendant." /d. at

352 (emphasis added).’ So long as the declarant is narrating

a description of the defendant's allegedly cnminal behavior

to the police or other law enforcement personnel (including

911 operators), the declarant is a "witness against” the

9

~ This aspect of White's holding was not called into question by

Crawford

accused. The testimonial nature of the statement should be

tested by reference to how a reasonable person would expect

the statement to be used.”

Of course, 911 service plays a dual role in our society

— it can be both a mechanism to summon help in an

emergency and a mechanism for reporting criminal activity.

Furthermore, a single 911 call often invokes both roles.

Under the objective standard proposed, however, statements

made by during a 911 call describing criminal activity should

be treated as "testimonial" for Confrontation Clause purposes

in light of the common knowledge that 911 operators are

affiliated with law enforcement, and that their job is to

transmit information about criminal activity from the caller to

the police. *

> Other courts have gone farther than Washington to say that any

statement that is an excited utterance is per se nontestimonial. See, e.g.,

U.S. v. Brun, 416 F.3d 703, 707-08 (8th Cir. 2005) (indicating that

statement to 911 operator is nontestimonial when it is “emotional and

spontaneous” and holding that statements to responding police officer

were “excited utterances and thus nontesumonial statements”); People v.

Moscat, 3 Misc. 3d 739, 746 (N.Y. Sup. Ct. 2004) (adopting a rule that

911 calls are not testimonial for the same reason that they are excited

utterances—“because there has been no opportunity for the caller to

reflect and falsify her (or his) account of events”); People v. Corella, 18

Cal. Rptr.3d 770, 776 (Cal. Ct. App. 2004) (stating that it 1s difficult to

perceive any circumstances under which an excited utterance would be

testimonial); State v. Banks, No. O3AP-1286, 2004 WL 2809070, at *3

(Ohio Ct. App. Dec. 7, 2004) (stating that Crawford does not apply to

statement subject to common-law exceptions to the hearsay mule, such as

excited utterance)

* In Davis, the state court brushed aside the argument that Ms. McCottry

reasonably knew that her statements could be used to prosecute Mr. Davis

because it is common knowledge that statements made in the course of a

911 call can be used prosecutorially with the observation that there was

“no evidence that McCottry had such knowledge or that it influenced her

decision to call 911." Davis, 111 P.3d at 850. It confidentty concluded

that. under the facts of the case, McCottry called 911 “because of an

16

In a given case, there may be some portions of 911

calls (or indeed portions of any out-of-court statement) that

are not testimonial and can be introduced into evidence. This

would include the portion of the call that is strictly a "cry for

help" and does not describe another person's criminal

activity. See People v. West, 823 N.E.2d 82, 91 (Ill. App. Ct.

2005) (finding statements to 911 operator describing nature

of alleged attack, victim’s medical needs, and victim’s

location to be nontestimonial, while statements describing

assailants’ vehicle and the direction in which they fled to be

testimonial). Although this part of a call may be a small

portion of the entire conversation, the fact that a person

sought aid from 911 at a particular time will often be an

important and relevant item of evidence for the prosecution.

The state court decisions in both Davis and Hammon

illustrate the same tendency seen in many Roberts-era cases.

When Roberts said out-of-court statements could be admitted

into evidence without confrontation if they fell within a

"firmly rooted" hearsay exception, courts were pressured to

Steadily expand these exceptions. Davis and Hammon

illustrate the similar pressure on courts to expand the

definition of "nontestimonial." To avoid this msk, courts

should not pretend that a person is not a "witness against"

another when making statements in circumstances where a

immediate danger” and that there was “no evidence [she] sought to ‘bear

witess* in contemplanon of legal proceedings.” /d. at 851. The court did

not explain how the defendant could have produced this evidence so long

as Ms. McCottry was unavailable and could not be questioned regarding

her motives and her understanding of how her statement might be used.

This is simular to the Hammon court’s finding with respect to Amy

Hammon’s oral statement that her “motivation was to convey basic facts

and [there] was no suggestion that [she] wanted her initial response to be

preserved or otherwise used against her husband at mal,” even though she.

was unavailable and could not be questioned as to her motives. 829

N.EF.2d at 458

17

reasonable person would expect those statements to be used

for cnminal investigation or prosecution.

There may be room in Confrontation Clause

jurisprudence for genuine exceptions to the confrontation

rule. See generally Mattox v. Umited States, 156 U.S. 237,

243 (1895) (noting that in some instances exceptions to the

Confrontation Clause may be appropnate when such

exceptions were recognized at the time of its adoption).

Indeed, Crawford notes that there may be an exception to the

confrontation requirement for dying declarations. 541 U.S.

at 56 n.6._ It also reaffirms that the Confrontation Clause

does not bar admission of statements made by witnesses

whose unavailability arises from the defendant's own

wrongdoing. /d. at 62. If this Court chooses to make an

exception for accusatory statements made dunng exigent

circumstance or as part of a cry for help, rather than asserting

that such statements are nontestimonial, the more analytically

justified approach would be to recognize such an exception

explicitly and justify it in terms of the history and purposes

of the Confrontation Clause. See id. at 58 n.8.

Absent such an exception, the reasoning and results

in Davis, like those in Hammon, cannot be sustained.

IV. THE CONFRONTATION CLAUSE IS NOT

INCOMPATIBLE WITH EFFECTIVE

DOMESTIC VIOLENCE PROSECUTIONS

Just as the difficulties of prosecuting domestic

violence cannot be an excuse for abandoning the

Confrontation Clause, the requirements of the Confrontation

Clause cannot and should not be seen as an insurmountable

barner to domestic violence prosecutions.

18

A. The Problem of Reluctant Witnesses

Prosecutors committed to trying domestic violence

cases have tended to rely so heavily on victims’ out-of-court

statements because many forces discourage victims from

testifying. According to some recent estimates, 80 to 90

percent of domestic violence victims whose abusers become

involved with the criminal justice system recant or otherwise

fail to assist the prosecution at some point in the proceedings.

See Tom Lininger, Prosecuting Batterers After Crawford, 91

Va. L. Rev. 747, 768 n.103 (2005), Douglas E. Beloof & Joel

Shapiro, Let the Truth Be Told: Proposed Hearsay

Exceptions to Admit Domestic Violence Victims’ Out of

Court Statements as Substantive Evidence, 11 Colum. J.

Gender & L. 1, 3 (2002).

Some victims do not cooperate with prosecutors

because they fear retaliation by the defendant. That fear may

be a reasonable projection from past conduct. In other

instances there may be express threats of retaliation or actual

retaliatory violence by the batterer. Indeed, data indicate that

such threats and retaliation may occur in the majonty of

domestic violence prosecutions. F.g., Liminger, supra, at

769, Laura Dugan et al., Exposure Reduction or Retaliation?

The Effects of Domestic Violence Resources on Intimate

Partner Homicide, 37 Law & Soc’y Rev. 169, 179 (2003):

Barbara Hart, Battered Women and the Criminal Justice

System, 36 Am. Behavioral Scientist 624, 626 (1993); see

also Deborah Epstein et al, Transforming Aggressive

Prosecution Policies: Prioritizing Victims’ Long-Term Safen

in the Prosecution of Domestic Violence Cases, 11 Am. U.J.

Gender Soc. Pol'y & L. 465, 476 & n.38 (2003) (descnbing

study in which women identified fear of batterer as the

number one reason why they were unwilling to cooperate

with government). Battered women are at a heightened nsk

of violence at the moment they seek to separate from their

19

abusers; cooperation in cnminal prosecution is often meant

and understood as a means of formally separating from an

abuser and thus presents increased danger to victims. F.g.,

Dugan ef al., supra, at 174; Ronet Bachman & Linda E.

Saltzman, U.S. Department of Justice, Violence Against

Women: Estimates from the Redesigned National Crime

Victimization Survey (1995); see generally Martha R.

Mahoney, Lega/ Images of Battered Women: Redefining the

Issue of Separation, 90 Mich. L. Rev. 1 (1991) (explaining

dynamics and prevalence of separation assault). As a result,

many individuals who have expenenced domestic violence

quite reasonably conclude that cnmina! prosecution of their

batterers will leave them less safe.

Others victims of domestic violence do not testify for

other reasons, including: economic dependence on their

batterer; concern that an immigrant batterer will be deported

upon conviction; fear of an adverse reaction from family or

community, who might regard a victim's participation in the

prosecution as a betrayal, apprehension that involvement in

the cnminal justice system will lead to the loss of child

custody to child protective services; or continuing emotional

connections to their batterer. Epstein er al., supra, at 477-82;

Hart, supra, at 627-28. Victims of domestic violence, like

other victims of cme, sometimes cease to cooperate in

prosecution because of the time and effort that such

cooperation entails. The difficulties presented by taking

repeated time off work or repeatedly finding child care in

order to participate in court proceedings, for instance, can

impose significant barners to participation, particularly to

individuals who may be facing other crises in their lives as a

result of the violence they have expenenced. Deborah

Epstein, Effective Intervention in Domestic Violence Cases:

Rethinking the Roles of Prosecutors, Judges, and the Court

Svstem, 11 Yale J. L. & Feminism 3, 25 (1999), Hart, supra,

at 628. Moreover, while attitudes are changing, battered

20

women too often are viewed by the cnminal justice system as

somehow responsible for the crimes against them, leading

domestic violence victims to reject participation in cnmuinal

tnals. £.g., Hart, supra, at 626-27.

It 1s also important to recognize, however, that as

with all cnmes, some alleged victims refuse to testify

because their initial accusations were untrue or exaggerated.

For instance, batterers may falsely accuse their partners of

abuse in an attempt to gain an upper hand in the relationship.

E.g., Emily J. Sack, Battered Women and the State: The

Struggle for the Future of Domestic Violence Policy, 2004

Wis. L. Rev. 1657, 1692-93 (2004). Thus, the function of

confrontation as a too] to vindicate the innocent has as much

of a role in domestic violence prosecutions as in other

criminal prosecutions. Additionally, a fair tnal with

confrontation nghts may itself heighten the deterrent effect of

the criminal conviction by demonstrating the system's

fairness to the accused. Individuals arrested for domestic

violence may be less likely to engage in violence in the

future when they believe that they were treated in a

procedurally fair manner upon their arrest. See Raymond

Paternoster et al., Do Fair Procedures Matter? The Effect of

Procedural Justice on Spouse Assault, 31 Law and Soc'y

Rev. 163, 165 (1997).

* While a substantial majonty of domestic violence prosecutions involve

a man accused of harming a woman, it would be 2 mistake to think that

only male defendants benefit from the nght to confrontation. There are

increasing numbers of prosecutions of women for domestic assaults on

men, and jyumsdichons with large gay populations have begun to bring

domestic violence charges against men and women in same-sex

relationships

2]

B. States Have A Variety of Available Tools

To Facilitate Domestic Violence

Prosecutions Without Sacrificing

Confrontation Clause Values.

States have many tools available to address the

reasons that domestic violence victims fail to testify and thus

pursue domestic violence prosecutions consistent with the

Confrontation Clause. Some data suggest that by using

combinations of these techniques, victims will cooperate

fully in a prosecution in sixty-five to ninety-five percent of

cases. Angela Corsilles, Note, No-Drop Policies in the

Prosecution of Domestic Violence Cases: Guarantee to

Action or Dangerous Solution?, 63 Fordham L. Rev. 853,

873 (1994).

First, victims who receive the services of a victim

advocate are far more likely to assist with the prosecution of

their abuser. Melamie Randall, Domestic Violence and the

Construction of ‘Ideal Victims’: Assaulted Women's “Image

Problems" tin Law, St. Louis Univ. Pub. L. Rev. 107, 143

(2004) (battered women three times more likely to be willing

to tesufy when they met with an advocate); see also Epstein,

supra, at 20 (1999) (survivors able to access interpersonal

support twice as likely to cooperate with prosecution).

Advocates can work with victims to demystify the cnminal!

process, address the range of needs created by the violence,

help link victims to services, assist them with civil legal

needs, and provide encouragement and support. See, e.g.,

Sack, supra, at 1728-29 (2004). For instance, advocates

canhelp address a victim's concerms that cooperation will

endanger her by offernng safety planning or assistance in

obtaining a protective order. They might also assist a victim

who is concerned about loss of a batterer's income by

directing her to available benefits and explaining the

application procedures for these benefits. Junsdictions can

77

enhance domestic violence prosecution by providing these

domestic violence advocacy services.

“>

Second, jurisdictions can do more to make safety a

reality for domestic violence victims. Increased resources to

services for individuals seeking to escape domestic violence,

including housing, job training, and the like, may also

indirectly lead to greater victim cooperation in cnminal

prosecution by reducing the danger and cost of ending a

violent relationship. See generally supra at 1735 (2004).

Third, some of the obstacles to testifying are the

result of inefficiency within the criminal justice system. By

coordinating the often separate fields of criminal prosecution

and civil no-contact orders, prosecutors or criminal court

judges can help victims maneuver within the legal system

and reduce the frustration that leads to noncooperation.

Epstein, supra, at 21-34; Sack, supra, at 1731-32. Women

who have experienced domestic violence are also more likely

to cooperate with prosecution when they are not implicitly or

explicitly blamed for the violence against them by police,

prosecutors, or judges. See Hart, supra, at 626.

Fourth, because victims’ willingness to participate in

cnminal proceedings often diminishes over time, preserving

testimony at an earlier stage may permit prosecutions to go

forward that otherwise would have floundered on the lack of

victim testimony. Lininger, supra, at 784-97.

Fifth, thorough police work may help ensure a

successful prosecution even if the complaining witness does

not testify. Under the Roderts rule, police had confidence

that they could obtain a conviction with little more than a 911

tape, thus eliminating an incentive to pursue other leads that

could help seal the case. To be sure, a large number of

domestic assaults are witnessed only by the assailant and the

victim. But in other cases there may often be other

23

witnesses, such the persow(s)who first called the police in

Hammon, or the other persons on the scene (children and the

man named Mike) when the 911 call was made in Davis. It

would be a mistake for the Court to believe that domestic

violence can be prosecuted only through a relaxed approach

to the Confrontation Clause.

C. The Fight Against Domestic Violence

Should Not Be Measured Solely In Terms

of Convictions

- Some advocates have expressed concerns that

application of Crawford’s rule to the kinds of statements at

issue in these cases will lead police to ignore domestic

violence calls, because they consider it pointless to intervene

if the alleged perpetrator will not be convicted as a result of

an arrest. Others suggest that the inadmissibility of these

statements give batterers an even greater incentive to prevent

victims from testifying. Amici fully agree that these are

outcomes to avoid and believe jurisdictions should take steps

such as those set out above to avoid this result. Moreover,

whether a successful prosecution ultimately follows or not,

police must continue to provide prompt emergency assistance

in domestic violence cases to protect the health and safety of

women and their families.

In addition, while domestic violence is a cnme

deserving vigorous enforcement and punishment, the number

of defendants convicted is not the only, or even the most

important, measure of success in the struggle against

domestic violence. Helping domestic violence victims

address their immediate needs for housing, financial] support,

physical safety, and the like indirectly increases the

probability victims will cooperate with prosecution; far more

importantly, however, such assistance directly increases the

iikelihood victums of violence will be able to end violent

relationships and protect themselves in the long term. Safety

24

and autonomy for victims of violence is the ultimate goal of

domestic violence policy. While cnmuinal law enforcement is

an important piece of such efforts, standing alone it cannot

achieve these goals. Communities will be most successful in

eradicating domestic violence when they mount a broad

response to the problem.

CONCLUSION

For the reasons stated above, the judgments in Davis

(05-5224) and Hammon (05-5705) should be reversed.

Respectfully submitted,

Jordan Gross

Counsel of Record

Yarmouth Wilsdon Calfo PLLC

The IDX Tower

925 Fourth Avenue, Suite 2500

Seattle, WA 98104

(206) 516 — 3800

Steven R. Shapiro

Lenora Lapidus

Emily Martin

Amenican Civil Liberties

Union Foundation

125 Broad Street, 18"" Floor

New York, NY 10004

(212) 549 ~ 2500

Aaron Caplan

ACLU of Washington

705 Second Avenue

Seattle, WA 98104

(206) 624 - 2184

Ken Falk

Indiana Civil Liberties Union

1031 East Washington Street

Indianapolis, IN 46202

(317) 635 - 4059

to

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