# Amicus Curiae Brief — Davis v. Washington

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0263%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 813

## Text

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), ....... 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. (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
ANDERSON M. GANSNER
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0263%3A14. Public record. Not legal advice.