Amicus Curiae Brief — Davis v. Washington

Supreme Court, U.S.

FILED

(4) (i) FEB 2 - 2006

Nos. 05-5224 and 05-5705 OFFICE OF THE CLERK

In the Supreme Court of the United States

HERSHEL HAMMON, PETITIONER,

y*

STATE OF INDIANA, RESPONDENT.

ADRIAN MARTELL DAVIS, PETITIONER,

Vv. —_—D

STATE OF WASHINGTON, RESPONDENT.

On Writs of Certiorari to the Indiana Supreme Court

and the Supreme Court of Washington

BRIEF FOR THE STATES OF ILLINOIS, ALABAMA,

ARIZONA, ARKANSAS, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, HAWAITI,

IDAHO, KANSAS, MARYLAND, MASSACHUSETTS,

MICHIGAN, MISSOURI, NEBRASKA, NEVADA, NEW

MEXICO, OHIO, OKLAHOMA, SOUTH DAKOTA, TEXAS,

UTAH, VERMONT, WEST VIRGINIA AND WYOMING AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

LISA MADIGAN

Attorney General of Illinois

GARY FEINERMAN*

Solicitor General

MICHAEL SCODRO

Deputy Solicitor General

LINDA D. WOLOSHIN

ANDERSON M. GANSNER

a Assistant Attorneys General

100 West Randolph Street

Chicago, Illinois 6060]

*Counsel of Record (312) 814-3698

{additional counsel listed on signature page]

i

QUESTION PRESENTED

Whether an oral accusatory statement made to an

investigating officer at the scene of a crime, or a victim’s

statement to a 911 operator naming her assailant, are governed

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

statements qualify as excited utterances under state law.

il

TABLE OF CONTENTS

e Page

CU ee PURSUED on cece eccesecesecseces i

TEE Ce RAFURIEEUD occ sevrccsescewcvcsess ili

INTEREST OF THE AMICI CURIAE ................. l

INTRODUCTION AND SUMMARY OF ARGUMENT . 1

OPT ETT TT TTT TTT CT TTT Eee T Te 4

A. Excited Utterances Of The Kind Admissible At

Common Law Are Not Governed By Crawford ...... 5

B. Excited Utterances, As Understood In The Modern Era,

Are Per Se Nontestimonial And Thus Not Governed By

ET 64 6560s bu cheese ueceesuaeunaseun eas 17

I Kn 6itesvavdvcecnsebeeseskenenewes 22

TABLE OF AUTHORITIES

Cases: Page

Alden v. Maine, 527 U.S. 706 (1999) .............0.. 17

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........ 5,17

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ... 5,17

Aveson v. Kinnaird, 6 East 188, 102 Eng. Rep. 1258

SY db oaths eke aeay Corer rerer. 6, 7, 8,9, 10

Berkeley Peerage Case, 4 Camp. 401, 171 Eng. Rep.

EE vcths vee baad daa bens skh Aaa ne wen 7

Chambers v. Mississippi, 410 U.S. 284 (1973) ......... 17

Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d

ince 6 645 Vite hehehe oe eee eek s os 21

Commonwealth v. Hackett, 84 Mass. (2 Allen) 136

EAs atte deh ORS Aa RU EESSEEERS CEDUCASS 9

Commonwealth v. M'Pike, 57 Mass. (3 Cush.)

EEE 6s cdvawddvvoseosbuvenesten’ 8,9, 10, 11

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

Crookham v. State, 5 W.Va. 510, 1871 WL 2786

Sere ee rer = i eae soe eer, ee 16

Croomes vy. State, 40 Tex. Crim. 672, 51 S.W. 924

CRAG ON Sie Gheen oes Peers ae 16

Rex v. Radbourne, | Leach 457 (1787) ............ 11,14

Rex v. Wink, 6 Car. & P. 397, 172 Eng. Rep. 1293

attains PTT TTT or Tee Te re 16

Robertson v. Baldwin, 165 U.S. 275 (1897) ............ 5

State v. Hill, 20 S.C.L. 607, 1835 WL 1416 (App. L.

TEOUD os 0sne.cess suivessoute se baneebeneee 15

State v. Horan, 32 Minn. 394, 20 N.W. 905 (1884) ..... 16

State v. Middleham, 17 N.W. 446 (Iowa 1883) ......... 16

State v. Miller, 1 Del. Case 512 (1814) ............0.5. 12

State v. Morea, 2 Ala. 275, 1841 WL 201 (1841) ....... 12

State v. Morrison, 64 Kan. 669, 68 P. 48 (1902) ........ 16

State v. Murphy, 16 R.I. 528, 17 A. 998 (1889)......... 16

State v. Ohlson, 125 P.3d 990 (Wash. App. 2005) ...... 21

State v. Wagner, 61 Me. 178, 1873 WL 3285 (1873) .... 16

State v. Whittier, 21 Me. 341, 1842 WL 1198 (1842) .... 12

Tennessee v. Garner, 471 UB. OCISTS) once cnvcevencans 5

Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179

FF Bee ere Te oe nee Se passim

vi

United States v. Arnold, 410 F.3d 895 (6" Cir.), vacated

and superseded on other grounds, = F.3d__—|

oe idee cauidy anus 3, 4, 19, 20

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

DPE Ch Cheha adhupsdeedvcesies sccceees 17

Utah v. Evans, 536 U.S. 452 (2002) ...............4.. 17

White v. Illinois, 502 U.S. 346 (1992) ......... 3, 6, 14, 16

Wilson v. Arkansas, 514 U.S. 927 (1995) ..........04.. 5

Constitutional Provisions:

SE ee 5

I ES Sic ec wa'cceccvncsecececes passim

Rule:

ee 16

Miscellaneous:

Comment, Li’! People, Little Justice: The Effect of the

Witness Competency Standard in California on

Children in Sexual Abuse Cases, 22 J. Juv. L.

ee a re os oe wend 12

Vii

Thomas Y. Davies, What Did the Framers Know, and

When Did They Know It? Fictional Originalism

in Crawford v. Washington, 71 Brook. L. Rev.

PEEL cksantnedeaeradsuunneew 13, 14, 15

Richard D. Friedman and Bridget McCormack, Dial-Jn

Testimony, 150 U. Pa. L. Rev. 1171 (2002)....... 7

W.S. Holdsworth, A History of the English Law

Ss 4s been deans bike Veuenesueceseetuwes 10

McCormick on Evidence (5" ed. 1999) ......... 17, 18, 19

John E. B. Myers, Evidence in Child Abuse and Neglect

ED i. 05.05 6.044944 0ansnb beeecaeeane 12

S.M. Phillipps, 4 Treatise on the Law of Evidence (\"

Pe MED “avbacchewcéeecaeaeus 7, 10,11, 13

The Proceedings of the Old Bailey, London 1674 to

1834, Henrietta Radbourne, t17870711-1 (July

11, 1787), <http://www.oldbaileyonline.org/

html_units/1780s/t17870711-l.html> ....... 14, 15

Thomas Starkie, A Practical Treatise on the Law of

gg er 7, 10, 13

Eustachius Strickland, A Treatise on Evidence (1830) .... 7

Jone Tran, Crying Wolf or an Excited Utterance?

Allowing Reexcited Statements to Qualify

Under the Excited Utterance Exception, 52

Clev. St. L. Rev. $27 (2006-05)... 0. ccc ees 18

Vill

1 N. Webster, An American Dictionary of the English

I 6 06 6d 600s cb hetseccbecbsries s

John Henry Wigmore, A Treatise on the System of

Evidence in Trials at Common Law (1904) . 6, 18, 20

Wigmore, Evidence (Chadbourn rev. 1976) ........... 19

l

INTEREST OF THE AMICI CURIAE

These cases ask whether two out-of-court statements — an

oral accusation made to a police officer at the scene of a crime,

and a victim’s statement to a 911 operator naming her assailant

— are governed by Crawford v. Washington, 541 U.S. 36

(2004), where the statements qualify as excited utterances under

state law. Because the 27 State amici curiae have traditionally

allowed the admission of excited utterances, the decisions here

will substantially impact the admissibility of such statements in

a wide variety of criminal cases, including those concerning

domestic violence and crimes against children.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Confrontation Clause, as interpreted in Crawford,

prohibits the admission of “testimonial” out-of-court statements

by a declarant absent from trial, unless the declarant is

unavailable to testify and the defendant had a prior opportunity

for cross-examination. 54] U.S. at 59. This rule is subject to

two important limitations. First, Crawford does not govern

nontestimonial hearsay. /d. at 68 (“[w]here nontestimonial

hearsay is at issue, it is wholly consistent with the Framers’

design to afford the States flexibility in their development of

hearsay law”). Second, Crawford does not govern hearsay,

whether testimonial or not, of a type that was admissible at

common law and thus incorporated into the Sixth Amendment.

Id. at 56 n.6; see also Mattox v. United States, 156 U.S. 237,

243 (1895). 7

These cases concern the admission at trial of out-of-court

statements found to qualify as excited utterances under state

law. In Hammon, a police officer testified that he arrived at a

reported domestic disturbance, where the declarant told him

that her husband, petitioner Hammon, had just shoved her head

into broken glass and twice punched her in the chest. Hammon

2

J.A. 82. The state appellate court held that the officer’s

testimony did not violate the Confrontation Clause, reasoning

that the declarant’s statement was an excited utterance and that

excited utterances, by definition, are not testimonial under

Crawford. Id. at 77 (“the very concept of an ‘excited utterance’

is such that it is difficult to perceive how such a statement could

ever be ‘testimonial’”). The state supreme court declined to

adopt that per se rule, id. at 95, but held on other grounds —

focusing upon the declarant’s motivation in speaking to the

officer, the officer’s motivation in communicating with the

declarant, and whether the officer’s motivation rendered the

communication a species of “police interrogation” whose fruits

are subject to Crawford, see 541 U.S. at 53-54, 68 — that the

statement was nontestimonial. Hammon J.A. 100-104.

In Davis, the victim called 911, hung up before saying

anything, and then was called back by the 911 operator, who

asked what was happening. Davis J.A. 117. The victim “was

hysterical and crying as she responded, ‘He’s here jumpin’ on

me again,” and identified petitioner Davis as her assailant.

Ibid. The victim did not appear at trial, and the trial court, over

Davis’s objection, admitted a tape recording of the 911 call

under the excited utterance doctrine. /d. at 118. The state

appellate court affirmed, applying the then-applicable

framework of Ohio v. Roberts, 448 U.S. 56 (1980). Davis J.A.

96-111. While the matter was on appeal to the state supreme

court, Crawford was decided. /d. at 120. The state supreme

court held that admitting the 911 tape did not violate Crawford.

Noting that a California intermediate appellate court had held

that “it is difficult to perceive any circumstances under which

a statement qualifying as an excited utterance would be

testimonial,” id. at 125 (citing People v. Corella, 122 Cal. App.

4" 461, 18 Cal. Rptr. 3d 770 (2004)), the state supreme court,

like its counterpart in Hammon, did not adopt a per se rule in

that regard. Rather, the court focused on the declarant’s

3

motivation when speaking to the 911 operator in holding that

her statement was not testimonial. Davis J.A. 125-128.

Both state supreme courts were correct to rule that the

statements were properly admitted, and the grounds articulated

by respondents Indiana and Washington amply support the

judgments below. However, to conclude that the declarants’

statements were proper under Crawford, this Court need not

examine, let alone resolve, potentially difficult questions

regarding the officer’s and 911 operator’s respective

motivations in communicating with the declarants and whether

their motivations rendered the communications “police

interrogations” within the meaning of Crawford. Rather, for

purposes of these cases, this Court need only hold that excited

utterances are per se not governed by Crawford. See United

States v. Arnold, 410 F.3d 895, 914-15 (6" Cir.) (Sutton, J.,

dissenting) (the number of excited utterances that are

testimonial “may be something approaching a null set”),

vacated and superseded on other grounds, _—_—*F.3d__, 2005

WL 3315297 (6" Cir. Nov. 23, 2005).

Resolving these cases in that manner would comport with

history, square with Crawford’s analysis and description of

what it means for a statement to be “testimonial,” and respect

the States’ development and implementation over the past two

centuries of the excited utterance doctrine. With respect to

history, because excited utterances were admissible at common

law, see White v. Illinois, 502 U.S. 346, 356 n.8 (1992) (citing

Thompson v. Trevanion, 90 Eng: Rep. 179 (K.B. 1694)), their

admission is not prohibited by the Sixth Amendment. See

Mattox, 156 U.S. at 243. The fact that cases decided in the

decades after the Founding regularly admitted (what we now

call) excited utterances, and that early nineteenth century

treatises recognized excited utterances as an exception to the

general rule against hearsay, indicates that such statements were

not considered at the time to violate a defendant’s constitutional

4

rights. And because the States have traditionally allowed

excited utterances into evidence at criminal trials, subjecting

such evidence to the rule set forth in Crawford would

substantially disrupt long-settled practice.

The excited utterance doctrine has evolved since the

Founding, but in a direction that confirms the conclusion that

excited utterances are not governed by Crawford. At common

law, statements now known as excited utterances were

admissible as res gestae, on the ground that they were a natural

continuation of some exciting event. In the modern era, excited

utterances are understood to result from spontaneous reactions

to stressful events, made without reflective thought or

deliberation. A statement that qualifies as an excited utterance

is necessarily and fundamentally incompatible with Crawford’s

understanding of “testimony,” which is “‘{a] solemn declaration

or affirmation made for the purpose of establishing or proving

some fact.’”” 541 U.S. at 51 (quoting 1 N. Webster, An

American Dictionary of the English Language (1828)); see

Arnold, 410 U.S. at 914 (Sutton, !., dissenting) (“It is very

difficult to imagine a ‘solemn’ excited utterance or even a semi-

solemn excited utterance.”).

ARGUMENT

EXCITED UTTERANCES ARE NOT GOVERNED BY CRAWFORD

V. WASHINGTON, 541 U.S. 36 (2004).

Excited utterances are not governed by Crawford for two

separate reasons. First, because excited utterances were

admissible as an exception to the hearsay rule at common law,

the exception was incorporated into the Sixth Amendment; this

means that excited utterances, as understood at common law,

fall outside Crawford’s scope regardless of whether they are

testimonial. Second, excited utterances, as understood in the

modem era, are nontestimonial within the meaning of

5

Crawford, and thus fall outside of Crawford’s scope regardless

of whether they would have been admissible at common law.

A. Excited Utterances Of The Kind Admissible At

Common Law Are Not Governed By Crawford.

This Court looks to common law practice at the time of the

Framing to ascertain the scope of the various provisions of the

Bill of Rights. See, e.g., Atwater v. City of Lago Vista, 532

U.S. 318, 326-344 (2001); Apprendi v. New Jersey, 530 U.S.

466, 478-481 (2000); Wilson v. Arkansas, 514 U.S. 927, 931

(1995); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,

358-371 (1995) (Thomas, J., concurring). The notion is that the

Bill of Rights, absent a clear textual indication to the contrary,

should not be interpreted to prohibit common law practices

accepted at the Framing. See Atwater, 532 U.S. at 345 n.14

(“courts must be ‘reluctant . . . to conclude that the Fourth

Amendment proscnbes a practice that was accepted at the time

of adoption of the Bill of Rights ... .””) (quoting Tennessee v.

Garner, 471 U.S. 1, 26 (1985) (O’Connor, J., dissenting));

Mattox, 156 U.S. at 243 (“Many of [the Constitution’s]

provisions in the nature of a bill of mghts are subject to

exceptions, recognized long before the adoption of the

constitution, and not interfering at all with its spirit. Such

exceptions were obviously intended to be respected.”’); see also

Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (same).

Consistent with this interpretive principle, Crawford held

that “the ‘right . . . to be confronted with the witnesses against

him,’ Amdt. 6, is most naturally read as a reference to the right

of confrontation at common law, admitting only those

exceptions established at the time of the founding.” 541 U.S.

at 54. It follows, the Court observed, that an exception to the

Confrontation Clause’s prohibition of testimonial hearsay might

be drawn for hearsay admissible at the time of the Founding.

Id. at 56 & n.6 (noting the existence of a hearsay exception for

dying declarations at common law, and leaving unresolved

6

whether, given that exception, the Sixth Amendment

“incorporates an exception for testimonial dying declarations’”’).

In dicta, the Court suggested that the only such hearsay

exception was for dying declarations. /d. at 56 n.6 (“If this

exception [for dying declarations] must be accepted on

historical grounds, it is sui generis.’’).

Two footnotes later, however, Crawford noted the

possibility that the common law also recognized a hearsay.

exception for excited utterances. /d. at 58 n.8. (The Court used

the term “spontaneous declarations,” but that term is equivalent

for present purposes to “excited utterances.”) As demonstrated

below, such an exception did exist at common law. For that

reason, excited utterances of the type admissible at common

law fall outside the prohibition set forth in Crawford, even

assuming (incorrectly, see Section B, infra) that they are

testimonial within the meaning of Crawford.

The excited utterance doctrine traces its provenance to

Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.

1694), where Lord Chief Justice Holt held “that what the wife

said immediate[ly] upon the hurt received, and before that she

had time to devise or contrive any thing for her advantage,

might be given into evidence” as “evidence of wounding.” See

3 John Henry Wigmore, A Treatise on the System of Evidence

in Trials at Common Law, § 1746, at 2250 (1904) (hereniafter,

“Wigmore (1904)”) (citing Thompson as first case to recognize

the doctrine); Crawford, 541 U.S. at 58 n.8; White, 502 U.S. at

356 n.8.

Although apparently not cited in any reported decisions

before the Framing, Thompson appeared in cases and treatises

shortly after the Founding. In Aveson v. Kinnaird, 6 East 188,

102 Eng. Rep. 1258 (1805), Lord Ellenborough, citing

Thompson with approval, held that if a wife “declared at the

~ time that she fled from immediate terror of personal violence

from the husband,” her out-of-court statement would be

7

admissible. /d. at 193-194, 102 Eng. Rep. at 1261; see also

Berkeley Peerage Case, 4 Camp. 401, 408, 171 Eng. Rep. 128,

131 (1811) (“Hearsay evidence is always to be received with

caution, and particularly that which may have arisen when

men’s minds were heated and biassed by an existing

controversy upon the subject; but instead of laying down a rigid

rule which may exclude bona fide declarations entitled to

implicit credit, confide in the discretion of the Judge . . . .”) (not

citing Thompson).

Shortly thereafter, in “one of the most important evidence

treatises of the nineteenth century,” Richard D. Fnedman and

Bridget McCormack, Dial-Jn Testimony, 150 U. Pa. L. Rev.

1171, 1211 (2002), the author favorably cited both Thompson

and Aveson as exceptions to the general rule against admitting

hearsay. 1 S.M. Phillipps, A Treatise on the Law of Evidence

202-203 (1* Am. ed. 1816). The same treatise cited Rex v.

Brasier, | East Pl. Cr. 444 (1779), for the proposition that “on

an indictment for a rape, what the girl said recently after the.

fact, (so that is excluded a possibility of practising on her), has

been held to be admissible in evidence, as part of the

transaction.” Phillipps, at 202. Less than a decade later,

another treatise cited Thompson in explaining that

where an immediate account is given, or complaint

made, by an individual, of a personal injury committed

against him, the fact of making the complaint

immediately, and before it is likely that anything should

have been contrived and devised for the private

advantage of the party, is admissible in evidence; as

upon an indictment for rape, or upon an action for

trespass and assault committed on the wife.

1 Thomas Starkie, A Practical Treatise on the Law of Evidence

149 (1 ed. 1824) (also citing Rex v. Clarke, 2 Starkie 242

(1812), and Brasier). And while petitioner Davis cites

Eustachius Strickland, A Treatise on Evidence 397 (1830), for

8

the proposition that “contemporaneous declarations ‘respecting

the motives or objects he had in view of doing’ the act were

admissible, but assertions ‘made prior or subsequent to the

doing the acts’ were not,” Davis Br. 24, the Strickland treatise,

on the very same page, approvingly cites Thompson for the

proposition that “what the wife had said immediately upon the

hurt, and before she had time to devise or contrive anything for

her own advantage, might be given in evidence.”

In Rex v. Foster, 6 Car. & P. 325, 25 Eng. C.L.R. 421

(1834), where the defendant was tried for manslaughter for

running over the victim with a cabriolet, a wagoner testified as

to what the victim said shortly after the incident. The wagoner

did not see the incident itself, but “immediately after, on

hearing the deceased groan, he went up to him and asked him

what was the matter.” /bid. At that point, defense counsel

objected, asserting “that what the deceased said in the absence

of the prisoner, as to what had caused the accident, is not

receivable in evidence.” Jbid. In rejecting that argument,

Justice Park, relying upon Aveson, admitted the testimony “to

show what it was that had knocked the deceased down.” /bid.

It bears mention that the reporter of the Foster case, in an

annotation providing the precise citation to Aveson (6 East,

193), noted that Aveson had in turn relied upon Lord Chief

Justice Holt’s decision in Thompson. 6 Car. & P. at 325.

In Commonwealth v. M'Pike, 57 Mass. (3 Cush.) 181

(1849), another manslaughter case, the victim died three months

after being stabbed by the defendant, her husband. Upon being

stabbed, the victim ran from her apartment up the stairs to her

neighbor’s, knocked on the door, and was let in. /d. at 182. A

third person, who had heard the victim scream, “went for a

watchman,” and returned to the neighbor’s room, where the

victim asked him for water and said that the defendant had

stabbed her. Jbid. The trial court overruled the defendant’s

objection to the third person’s testimony, and the Supreme

9

Judicial Court affirmed, reasoning that “(t]he declaration of a

person, who is wounded and bleeding, that the defendant has

stabbed her, made immediately after the occurrence, though

with such an interval of time, as to allow her to go from her

Own room up stairs into another room, is admissible in

evidence.” Jd. at 181; accord, Commonwealth v. Hackett, 84

Mass. (2 Allen) 136, 138-140 (1861).

This Court relied upon several of the foregoing precedents

in Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397 (1869). As

evidence that the insured died from accidental causes, the

insured’s wife testified that the insured “got up [from bed] and

went down stairs for the purpose of going out back,” that “she

didn’t know how long he was gone,” and that “[w]hen he came

back he said he had fallen down the back stairs and almost

killed himself.” /d. at 399. In addition, the insured’s son

testified that “‘he saw his father lying with his head on the

counter, and asked him what was the matter; he replied that he

had fallen down the back stairs and hurt himself very badly.’”

Id. at 404.

The insurer argued that the declarant’s statements should

not have been admitted “‘as evidence of his fall down the stairs.”

Id. at 402-403. This Court disagreed, holding that the

Statements “were made immediately, or very soon after the fall;

the declarations to his son, before he returned to his bed-room;

those to his wife, upon his reaching there.” Jd. at 404. To

support its ruling, this Court summarized the holdings of, and

approvingly cited, Thompson, Aveson, Foster, and M 'Pike. Id.

at 405-407. In particular, the court explained that “[i]t is not

easy to distinguish this case and that of [Rex] v. Foster, in

principle, from the case before us, as regards the point under

consideration.” /d. at 407. In conclusion, and perhaps to

eliminate any doubt as to the basis of its holding, the Court

observed that the declarant’s statements could not have been

admitted as dying declarations. /d. at 409.

10

Despite the foregoing, petitioners assert that the common

law did not recognize a hearsay exception for excited

utterances. Hammon Br. 23 (“it is clear that as of 1791 there

was no doctrine allowing admissibility of otherwise

inadmissible statements on the ground that they were

spontaneous declarations or excited utterances”); Davis Br. 18-

22. To establish their point, petitioners must overcome

Thompson, which was decided in 1694 and reported in 1728,

see 6 W.S. Holdsworth, A History of the English Law 553

(1924), and thus available to the Framers. Their various

attempts to do so are without merit.

1. Petitioners observe that Thompson was a civil case, not

a criminal case. Hammon Br. 24; Davis Br. 29. That is true,

but irrelevant. Foster and M 'Pike, both criminal cases, relied

upon Thompson (the former derivatively through Aveson),

which indicates that courts understood Thompson to state a

general evidentiary principle applicable to civil and criminal

cases alike. The point is confirmed by Phillipps and Starkie,

who in their early nineteenth century works cited Thompson in

the same breath as criminal cases like Brasier and Clarke. See

Phillipps, at 202-203; 1 Starkie, at 149. Further confirmation

comes from this Court’s opinion in Mosley, which cited civil

(Thompson and Aveson) and criminal (Foster and M 'Pike) cases

for the same generally applicable evidentiary principle.

Crawford itself cites Thompson as relevant authority. 541 U.S.

at 58 n.8.

2. Hammon observes that Thompson was reported in 1728,

but was not cited by another published decision until 1805.

Hammon Br. 24. This, too, is true, but irrelevant. That

Thompson was not cited by another reported decision until

1805 does not mean that the precedent was unknown or ignored

in English and Colonial courts, the vast majonty of whose

decisions were unreported. Thompson itself was reported (Skin.

11

402), and it is sheer speculation for petitioner to suggest that it

went unnoticed prior to the Founding.

3. Petitioners contend that Thompson was too vague and

cryptic to stand for much of anything, let alone the principle

that excited utterances are admissible as an exception to the

hearsay rule. Hammon Br. 24-25; Davis Br. 30. Justice

Clifford made a materially identical argument in his dissent in

Insurance Co. v. Mosley, where he asserted that Thompson and

Foster “are so imperfectly reported that they can hardly be said

to be reliable.” 75 (8 Wall.) at 418 (Clifford, J., dissenting).

That argument failed to persuade this Court in Mosley, which

had no trouble citing both decisions, and is no more persuasive

136 years later.

4. Petitioners contend that Thompson and its progeny

govern only those circumstances where the out-of-court

statement follows instantaneously from, or occurs

simultaneously with, the exciting event. Hammon Br. 25-27;

Davis Br. 30-31. Again, Justice Clifford unsuccessfully

advanced the same argument in Mosley, see 75 U.S. (8 Wall.)

at 412-413 (Clifford, J., dissenting). This Court rejected that

proposition in citing Thompson to support the admission of an

excited utterance made at least several minutes following the

startling event. See id. at 399, 404; accord, M ‘Pike, 57 Mass.

(3 Cush.) at 181-182 (same). Thompson’s and M'Pike’s

application of the excited utterance doctrine in non-

instantaneous circumstances is consistent with the views of

Phillipps, who a generation after the Founding employed the

term “recently,” in addition to “immediate[ly],” in describing

the appropriate interval between the exciting event and the

(admissible) hearsay that followed. Phillipps, at 202-203.

5. Petitioners contend that two pre-Framing cases, Rex v.

Brasier, | Leach 199, 168 Eng. Rep. 202, | East Pl. Cr. 443

(K.B. 1779), and Rex v. Radbourne, 1 Leach 457 (1787),

established a rule contrary to that set forth in Thompson, and

12

thus cast doubt upon whether Thompson reflected the law prior

to the Framing. Hammon Br. 27-28; Davis Br. 20, 28. They

are incorrect.

The defendant in Brasier was charged with assault upon a

five year-old girl. 1 East Pl. Cr. at 443. The victim’s mother

and another woman testified that the victim, “immediately upon

her coming home[,] told all the circumstances of the injury

done to her, and described the prisoner, who was a soldier, as

the person who had committed it.” Jbid. After the defendant

was convicted, the tnal judge referred the matter “for the

opinion of the judges.” Jbid. Two of the judges (Gould and

Willes) initially believed that the testimony was properly

admitted, given their view that children under the age of seven

could not be sworn. /d. at 444. The matter then was submitted

to all of the judges, who (contrary to Gould’s and Willes’s

initial view) “unanimously agreed that a child of any age, if she

were capable of distinguishing between good and evil, might be

examined on oath; and consequently that evidence of what she

had said ought not to have been received.” /bid. Significantly,

the report concludes by noting that “[i]t does not however

appear to have been denied by any in the above case, that the

fact of the child’s having complained of the injury recently after

it was received is confirmatory evidence.” /bid.

Thus, at bottom, Brasier set forth a rule concerning whether

a child is competent to testify at trial, not whether her out-of-

court statement was inadmissible hearsay. That is precisely

how the early state cases interpreted the decision. See Siate v.

hittier, 21 Me. 341, 1842 WL 1198, *5 (1842); State v.

Morea, 2 Ala. 275, 1841 WL 201, *3 (1841); State v. Miller, |

Del. Case 512 (1814); see also 1 John E. B. Myers, Evidence in

Child Abuse and Neglect Cases § 2.2, at 67 (1992) (citing

Brasier as the first case to create a presumption of competency

for child witnesses); Comment, Li '/ People, Little Justice: The

Effect of the Witness Competency Standard in California on

13

Children in Sexual Abuse Cases, 22 J. Juv. L. 113, 114(2001-

2002) (citing Brasier as a competency case). Equally

significant, Phillipps and Starkie — in marked contrast to

petitioners — interpreted Brasier as reflecting, rather than

refuting, the principle earlier set forth in Thompson. See

Phillipps, at 202 (citing Brasier for the proposition that “on an

indictment for a rape, what the girl said recently after the fact,

(so that is excluded a possibility of practising on her), has been

held to be admissible in evidence, as part of the transaction”,

1 Starkie, at 161 (citing Brasier for the proposition that “whe.<

an immediate account is given, or complaint made, by an

individual, of a personal injury committed against him, the fact

of making the complaint immediately, and before it is likely

that anything should have been contrived and devised for the

private advantage of the party, is admissible in evidence; as

upon an indictment for rape”). If Brasier meant what

petitioners claim it means, then Phillipps and Starkie, both

writing in the early nineteenth century, would not have read it

the way they did.

Even putting aside what Brasier meant, those who drafted

the Confrontation Clause would not have been aware of, and so

could not have been influenced by, the case. Brasier is cited in

three reporters. Volume 168 of the English Reports was not

published until 1928. Volume | of East’s Pleas of the Crown

was not published until 1803. The first volume of Thomas

Leach’s Crown Cases was not published until May 1789, in

London, “‘at the earliest.” Thomas Y. Davies, What Did the

Framers Know, and When Did They Know It? Fictional

Originalism in Crawford v. Washington, 71 Brook. L. Rev.

105, 157 n.163 (2005).

Although May 1789 predated the Framing, Leach’s volume

was not published in time to have actually influenced the

Framers. The First Congress approved the Bill of Rights for

state ratification in September 1789. Jd. at 159. However,

14

“(t]he legislative record shows that there was no alteration of

the (Confrontation Clause’s]} text following the report of the

committee of eleven on July 11, 1789, and the only change that

committee made from the proposals Madison had offered on

June 8 [was] the deletion of the redundant words ‘accusers and’

.... Ibid. Given this, Leach’s first volume likely did not

reach our shores by the time the Clause was framed. /d. at 160

(“taking into account the time to ship (literally) that volume to

America and distribute it to customers, it is questionable

whether copies . . . were available to Americans at all when the

Confrontation Clause was framed ”’); cf. White, 502 U.S. at 363

(Thomas, J., concurring) (in ascertaining the meaning of the

Confrontation Clause, looking to what “the drafters of the Sixth

Amendment intended”’).

Davis cites the other pre-Framing case, Rex v. Radbourne,

as evidence that English courts at the time of the Framing

refused to admit testimony of “accusations” made to police

“fresh{ly]” after the crime. Davis Br. 20. But because

Radbourne, like Brasier, was first published in Leach, it could

not have come to the attention of the Framers before the

Framing. In any event, Radbourne did not appear to involve an

excited utterance and says nothing to suggest that one would

have been inadmissible.

The victim in Radbourne was lying in her bed, her wounds

already bandaged, when she made the inadmissible statements,

and there is nothing in the transcript of proceedings to indicate

that she was agitated when she spoke. The Proceedings of the

Old Bailey, London 1674 to 1834, Henrietta Radbourne,

th7870711-1, at 11-12 (July 11, 1787),

<http://www.oldbaileyonline.org/htm!_units/1780s/t17870711-

1 .htm!> (last visited Jan. 12, 2006) (testimony that victim was

in bed and that constable could not observe her wounds because

they were “done up” before he arrived) (using citation

convention described in Davis Br. 19 n.4). Moreover, because

15

the defendant was a servant accused of killing her mistress, she

was charged with both murder and petty treason. /d. at 20.

“Thus, evidence in the trial was subject to the explicit

requirement in the treason statutes,” not applicable under the

Marian statutes, “that all evidence of treason be taken ‘in the

presence’ of the accused.” Davies, 71 Brook. L. Rev. at 165.

Given this, it is no surprise that nineteenth century American

cases that cited Radbourne did not do so for the proposition

advanced here by Davis. See, e.g., Mattox, 156 U.S. at 240 (for

the proposition that “the testimony of a deceased witness cannot

be used in a criminal prosecution”); Hart v. State, 15 Tex. App.

202, 1883 WL 8889, *15 (1883) (for the proposition that “[i}n

England, testimony before the examining magistrate on a charge

of felonious wounding was deemed admissible on the trial for

murder, where the injured person had died of the wound”’).

Davis also cites State v. Hill,20S.C.L. 607, 1835 WL 1416,

*2 (App. L. 1835), as establishing that “([djeclarants’

‘excitement’... . in no way exempted their statements reporting

crimes to governmental agents from confrontation restrictions.”

Davis Br. 22. “If anything,” Davis contends, “such excitement

was seen as heightening the need for cross-examination,”

quoting the court’s reference to excitement’s potential to

“*color[]’” testimony. /bid. In fact, the declaration in Hil/ took

the form of a “deposition . . . made on the application for” an

arrest warrant in formal proceedings before a magistrate. 1835

WL 1416, at *1. That is precisely the sort of “formal statement

to government officers” governed by the Confrontation Clause.

Crawford, 541 U.S. at 51. Moreover, the “excitement incident

to the wrong done” to which Hill referred as a possible source

of bias is not the agitation that accompanies an excited

utterance. Rather, as context makes clear, the court referred to

the emotion that the crime victim may feel long after the

incident, expressing concern that the declarant’s status as a

victim may “color{]” his formal testimony before a magistrate.

lhid. .

16

Davis further cites Rex v. Wink, 6 Car. & P. 397, 172 Eng.

Rep. 1293 (1834), for the proposition that a constable could not

be asked at trial to repeat a robbery victim’s identification of the

assailant when reporting the crime. Davis Br. 20. Davis buries

Wink in a parenthetical, and for good reason. While holding

that the constable could not directly testify as to the name told

him by the victim, the court proceeded to rule that the constable

could testify as to “whether, in consequence of the prosecutor

mentioning a name to him, he went in search of any person and,

if he did, who that person was,” 6 Car. & P. at 398, 172 Eng.

Rep. at 293 — which of course was functionally equivalent to

allowing the constable to repeat the name the victim had given.

6. Finally, Davis relies on treatises and cases from after

1870 to support his view that excited utterances were

inadmissible in criminal trials. Davis Br. 24-27. Even

assuming that materials of that vintage are relevant here, the

weight of case authority from that era took the view that excited

utterances were admissible. See, e.g., People v. Del Vermo, 192

N.Y. 470, 483-487, 85 N.E. 690, 695-696 (1908) (noting that

exception was accepted in the majority of States); State v.

Morrison, 64 Kan. 669, 68 P. 48, 51 (1902); Croomes v. State,

40 Tex. Crim. 672, 676-677, 51 S.W. 924, 925 (1899); State v.

Murphy, 16 R.1. 528, 17 A. 998 (1889); Dismukes v. State, 83

Ala. 287, 3 So. 671, 673 (1888); Jrby v. State, 25 Tex. App.

203, 213-214, 7 S.W. 705, 706 (1888); People v. Callaghan, 4

Utah 49, 6 P. 49, 54-55 (1886); State v. Horan, 32 Minn. 394,

20 N.W. 905 (1884); Kirby v. Commonwealth, 77 Va. 681,

1883 WL 6701, *5 (1883); State v. Middleham, 17 N.W. 446,

446 (lowa 1883); State v. Wagner, 61 Me. 178, 1873 WL 3285,

*10-*11 (1873); Crookham v. State, 5 W.Va. 510, 1871 WL

2786, at *3 (1871).

The weight of authority is even greater today. See White,

502 U.S. at 356 n.8 (excited utterance doctrine recognized

under Fed. R. Evid. 803(2) and nearly four-fifths of the States).

17

This consensus, particularly given the long-standing vitality of

the excited utterance exception and the “respect traditionally

accorded the States in the establishment and implementation of

their own criminal trial rules and procedures,” Chambers v.

Mississippi, 410 U.S. 284, 302-303 (1973), should not lightly

be disturbed.

* * *

In sum, the hearsay exception for excited utterances,

conceived in Thompson, existed at common law. Court

decisions and treatises from the decades after the Framing,

while of course unavailable to the Framers, provide persuasive

evidence that the Framers’ generation recognized the exception.

See Crawford, 541 U.S. at 49-50 (citing cases through 1858 and

treatises through 1872); cf. Atwater, 532 U.S. at 337-344;

Apprendi, 530 U.S. at 501-512 (Thomas, J., concurring); Utah

v. Evans, 536 U.S. 452, 503-506 (2002) (Thomas, J., concurring

and dissenting); Alden v. Maine, 527 U.S. 706, 743-745 (1999);

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 801-804;

816-819, 823-827 (1995). For this reason, the Confrontation

Clause does not govern excited utterances of the type

admissible at common law.

B. Excited Utterances, As Understood In The Modern

Era, Are Per Se Nontestimonial And Thus Not

Governed By Crawford.

In the early nineteenth century, the excited utterance

doctrine was understood to be a subset of the res gestae

doctrine. 2 McCormick on Evidence §268, at 195-196 (5" ed.

1999). The notion underlying res gestae was that certain types

of hearsay statements were admissible because they were

inextricably linked to action. “The res gestae doctrine focused

not on the reflective faculties of the declarant, but on the strict

contemporaneousness of the statement with the exciting event,

so that the statement was essentially a continuation of the

18

event.” Jone Tran, Crying Wolf or an Excited Utterance?

Allowing Reexcited Statements to Qualify Under the Excited

Utterance Exception, 52 Clev. St. L. Rev. 527, 541-42 (2004-

05).

Shortly after the tum of the last century, Wigmore

expressed a different understanding, explaining that “the basis

for the spontaneous exclamation exception [was] not the

contemporaneousness of the exclamation, but rather the nervous

excitement produced by the exposure of the declarant to an

exciting event.” 2 McCormick, § 271, at 200. As Wigmore

wrote: “The general principle is based on the experience that,

under certain external circumstances of physical shock, a stress

of nervous excitement may be produced which stills the

reflective faculties and removes their control, so that the

utterance which then occurs 1s a spontaneous and sincere

response to the actual sensations and perceptions already

produced by the external shock.” 3 Wigmore (1904), §1747, at

2250. “The rationale for the exception lies in the special

reliability that is furnished when excitement suspends the

declarant’s powers of reflection and fabrication.” 2

McCormick, § 272, at 204.

Wigmore’s recasting of the doctrine took hold and remains

the prevailing rationale for the moder excited utterance

doctrine. See Tran, 52 Clev. St. L. Rev. at 542 (“Wigmore’s

endorsement of deliberation over spontaneity ultimately

superceded the res gestae doctrine as the lynchpin to the excited

utterance exception.”). Currently,

all agree on two basic requirements. First, there must

be an occurrence or event sufficiently startling to render

inoperative the normal reflective thought processes of

the observer. Second, the statement of the declarant

must have been a spontaneous reaction to the

occurrence or event and not the result of reflective

thought. These two elements, which define the essence

19

of the exception, together with a third requirement that

the statement ‘relate to’ the event, . . . determine

admissibility.

2 McCormick, §272, at 204. Although today’s rationale for the

doctrine differs from that prevailing at common law, the actual

contours of the exception have changed little:

Its phrasings differ widely in different courts; but there

is in the judicial opinion of today something of an

approach to uniformity. In essence, the language of

Lord Holt, in Thompson vy. Trevanion, still serves to

indicate clearly and concisely the principle of the

exception.

6 Wigmore, Evidence § 1747, at 196 (Chadbourn rev. 1976).

In their modern form, excited utterances are fundamentally

incompatible with the conception of a “testimonial” declaration

under Crawford. This emphatically is not because excited

utterances are reliable or trustworthy. See Crawford, 541 U.S.

at 60-65 (rejecting reliability and trustworthiness as the

touchstone of Confrontation Clause analysis). Rather, it is

because the agitated, unthinking state that makes an excited

utterance reliable for hearsay purposes also makes it

nontestimonial for Confrontation Clause purposes. Although

Crawford “broke the linkage” between the Confrontation

Clause and the “inquiry whether the testimony was eligible for

admission under an accepted hearsay exception,” the qualities

that make a hearsay statement an excited utterance may still

“bear on whether a statement is testimonial or not.” Arnold,

410 F.3d at 912 (Sutton, J., dissenting).

The Confrontation Clause “applies to ‘witnesses’ against

the accused — in other words, those who ‘bear testimony.””

Crawford, 541 U.S. at 51 (citation omitted). A statement is

testimonial if it is a “solemn declaration or affirmation made for

20

the purpose of establishing or proving some fact.” J/bid.

(internal quotations omitted). “An accuser who makes a formal

statement to government officers bears testimony in a sense that

a person who makes a casual remark to an acquaintance does

not.” /bid. “The constitutional text, like the history underlying

the common-law nght of confrontation, thus reflects an

especially acute concern with a specific type of out-of-court

statement.” /bid.

The agitated declarant who makes an excited utterance is far

afield from the formal accusers and solemn witnesses that

concern the Confrontation Clause. Declarants in a state of

“physical shock [or the] stress of nervous excitement,” whose

“reflective faculties” have been stilled, 3 Wigmore (1904)

§1747, at 2250, are incapable of rendering solemn or formal

statements. As Judge Sutton observed,

It is very difficult to imagine a ‘solemn’ excited

utterance or even a semi-solemn excited utterance. Any

statement that takes on the qualities that the Court has

ascribed to the definition of testimonial evidence (a

‘solemn declaration ...’ Crawford, 541 U.S. at 51) or

to agreed-upon forms of testimonial evidence

(‘affidavits, depositions, prior testimony, or

confessions,’ id. at 51-52) would seem to depart from

the prerequisites for establishing an excited utterance.

To respect the one set of requirements would seem to

disrespect the other.

Arnold, 410 F.3d at 914 (Sutton, J., dissenting); see also id. at

912 (Sutton, J., dissenting) (“Surely a victim’s fear-induced

statement to a 911 dispatcher that he is being chased through

the house by an assailant is nothing more than a fervent cry for

help, not a ‘solemn declaration or affirmation made for the

purpose of establishing or proving some fact’ in a court of

law.”’) (quoting Crawford, 541 U.S. at 51).

21

Both state supreme courts below examined the declarant’s

perspective in determining whether her statement was

testimonial. Hammon J.A. 100-104; Davis J.A. 125-128. In

challenging the courts’ judgments, petitioners agree that

analysis under Crawford should focus on the declarant’s

perspective. Hammon Br. 7, 14, 17-20; Davis Br. 13, 41-42;

see also ACLU Br. 16 (“The testimonial nature of the statement

should be tested by reference to how a reasonable person would

expect the statement to be used.”). For himself, Hammon

contends that the inquiry should be whether the declarant

“knowingly created evidence that a reasonable person

understands will likely be used by the criminal justice system,”

and argues that “[t]he jurisprudence of the Confrontation Clause

should recognize that such self-conscious creation of evidence

is testimonial ... .””. Hammon Br. 18 (emphasis added).

Petitioners’ approach is open to serious question for the

reasons ably advanced by respondents Indiana and Washington.

The point here is not to enter the debate, but merely to observe

that petitioners’ view, if adopted by this Court, would serve

only to strengthen the proposition that excited utterances are

per se nontestimonial. A declarant under the stress of nervous

excitement, such that her normal reflective processes are

rendered inoperative, is in no position to “self-conscious|ly]” do

anything, let alone “creat{[e] . . . evidence” that she

“understands” will likely be used in a future prosecution. The

reason is plain: “When the declarant’s emotional state is such

that it would satisfy the spontaneous utterance exception, the

declarant does not (and reasonably would not) entertain any

expectations about whether his or her statement will be used at

a possible future tnal — the whole premise of spontaneous

utterances is that the witness is not capable of such reasoning at

the time he or she is speaking.” Commonwealth v. Gonsalves,

445 Mass. 1, 34, 833 N.E.2d 549, 572 (2005) (Sosman, J.,

concurting in part); accord; State vy. Ohlson, 125 P.3d 990, 995

(Wash. App. 2005) (“It is not reasonable to regard an excited

22

utterance as ‘bearing witness’ such that the declarant would

know that it would be used in a later prosecution.”’).

In sum, excited utterances, as understood under modem

doctrine, are per se nontestimonial. For that reason — and

regardless of whether (and, if so, to what extent) excited

utterances were recognized as a hearsay exception prior to the

Framing — they are exempt from scrutiny under Crawford.

See 541 U.S. at 68 (“[w]here nontestimonial hearsay is at issue,

it is wholly consistent with the Framers’ design to afford the

States flexibility in their development of hearsay law’’).

CONCLUSION

The judgments of the Indiana Supreme Court and the

Supreme Court of Washington should be affirmed.

Respectfully submitted.

LISA MADIGAN

Attorney General of Illinois

GARY FEINERMAN*

Solicitor General

MICHAEL SCODRO

Deputy Solicitor General

LINDA D. WOLOSHIN

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*Counscel of Record (312) 814-3698

FEBRUARY 2006

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