Petitioners Brief — Hammon v. Indiana

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No.05-5705 | "23 206

In The

Supreme Court of the United States

HERSHEL HAMMON, i

Petitioner,

STATE OF INDIANA,

Respondent.

On Writ Of Certiorari To The

Indiana Supreme Court

BRIEF OF PETITIONER HERSHEL HAMMON

® -

RICHARD D. FRIEDMAN

Counsel of Record

625 South State Street

Ann Arbor, Michigan 48109-1215

(734) 647-1078

KIMBERLY A. JACKSON

JENSEN & ASSOCIATES

7440 North Shadeland, Suite 202

Indianapolis, Indiana 46250

(317) 849-5834

QUESTION PRESENTED

Whether an oral accusation made to an investigating

officer at the scene of an alleged crime is a testimonial

statement within the meaning of Crawford v. Washington,

541 U.S. 36 (2004).

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED ........ ]

STATEMENT OF THE CASE ........cccccccceccees ]

SUMMARY OF ARGUMENT ..............500000ee 7

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I. AN ACCUSATION MADE TO A KNOWN

POLICE OFFICER IS TESTIMONIAL WITHIN THE

MEANING OF CRAWFORD ......cccscsscsccceeces 9

A. An Accusation Made to a Known Police

Officer Lies at the Core of the Concerns Underlying

GD kk nc tdewebed dkbeeeneoes 10

B. As Judged by the Proper Standard — the

Reasonable Expectation of a Person in the Position of

the Declarant - Mrs. Hammon’s Accusation was

OE PEN: Keke SUS oc nen nnsee ede bioens cee 14

Il. AN ACCUSATION IS NOT EXEMPTED

FROM THE CONFRONTATION CLAUSE ON

THE GROUND THAT IT WAS MADE UNDER

STRESS OF THE INCIDENT. .......ccccscccccvess 21

iil

Ii. THE INDIANA SUPREME COURT’S RULE

INVITES MANIPULATION AND CREATES

IMPROPER INCENTIVES .........000 ce eeceeeeces 33

A. The Indiana Supreme Court’s Decision

Improperly Treats Pre-Recording Oral Accusations

Made at the Scene of the Alleged Crime as Not

EE pad cb eden elcsbe snd We bdesidssdsxeeess 33

B. The Indiana Supreme Court’s Rule

Encourages Manipulation by Police Officers .

and Gives Them Improper Incentives .............+.: 37

ED. ph ceccevesedncdabaverecssaenenes 42

TABLE OF AUTHORITIES

CASES

Aveson v. Kinnaird, 6 East 188, 102 E.R. 1258 (1805) ... 31

Bourjaily vy. United States, 483 U.S. 171 (1987) ........ 15

Boykin v. Alabama, 395 U.S. 238 (1969) ............. 13

California v. Green, 399 U.S. 149 (1970) .......... 29, 39

Coy v. Iowa, 487 U.S. 1012 (1988) ............045. 9,16

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

Florida v. Nixon, 543 U.S. 175 (2004) «00.0... ceca 13

Kentucky v. Stincer, 482 U.S. 730 (1987) ...........4. 41

Maryland v. Craig, 497 U.S. 836 (1990) ............ 9,13

Ohio v. Roberts, 448 U.S. 56 (1980) ........... 19, 35, 39

People v. King, 121 P.3d 234 (Colo. App. 2005) ....... 22

Portuondo v. Agard, 529 U.S. 61 (2000) .............. 13

R. v. Brasier, | Leach 199, 168 E.R. 202 (1779) ......... 27

R. v. Megson, 9 Car. & P. 420, 173 E. R. 894 (1840) .... 30

R. v. Osborne, Car. & M. 622, 174 E. R. 662 (1842) .... 30

R. v. Walker, 2 M. & Rob. 212, 174 E. R. 266 (1839) .... 30

State v. Barnes, 854 A.2d 208 (Me. 2004)............- 20

State v. Lewis, 619 S.E.2d 830 (N.C. 2005)......... 20, 38

State v. Mason, 110 P.3d 245 (Wash. Ct. App. 2005) .... 20

State v. Wright, 701 N.W.2d 802 (Minn. 2005) ......... 20

Tennessee v. Street, 471 U.S. 409 (1985) ............. 29

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

179, Holt 286, 90 E.R. 1057 (K.B.1693) . . . 23-28, 30-32

United States v. Brun, 416 F.3d 703 (8th Cir. 2005) ..... 22

United States v. Franklin, 415 F.3d 537 (6th Cir. 2005) .. 15

United States v. Ruiz, 536 U.S. 622 (2002) ............ 13

United States v. Saget, 377 F.3d 223 (2d Cir. 2004) ... .. 15

Upton v. Commonwealth, 2 $.E.2d 337 (Va. 1934) ...... 31

White — Illinois, 502 U.S. 346 (1992) ....... 10, 22, 32, 39

OTHER JUDICIAL AUTHORITY

Amendments to Rule 26(b) of the Federal Rules

of Criminal Procedure, 535 U.S. 1159

(Apnil 29, 2002) (statement of Scalia, J.)............ 9

CONSTITUTIONAL PROVISIONS

PEGE cveivccsiseuecasesteendicschasseues 10, 11

SE abe. cteanccentébavesedcsncseenet 10

SE EE nincandcddavaticdéscncchinmbuetas passim

PE EE dnkdnddaduisdiedndadesunedeneneeae 10

STATUTES AND RULES

ee ED ko. ak déwkdndddwedaeeseesebenneas ]

RED oc apocndleccodccndedkesene 2,3

OTHER AUTHORITIES

ROGET 6c ctkinsidsvikbukeseusasedeneaeusee 25

MATTHEW Bacon, A NEW ABRIDGEMENT OF THE LAW

Pe EG ED CHUTE bb cc cecccdcessccevencs 25

N. BAILEY, AN UNIVERSAL ETYMOLOGICAL

ENGLISH DICTIONARY (25th ed. 1783).......... 25-26

J.M. BEATTIE, CRIME AND THE COURTS

IN ENGLAND, 1660-1800 (1986) ................. 16

John D. Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors,

vii

47 Ark. L. Rev. 511, 518-19 (1994) ........... 16-17

FRANCIS BULLER, AN INTRODUCTION TO THE LAW

RELATIVE TO TRIALS AT Nis! PRIUS

SE COUN 6500666606 nucstoncsudeesebeseces 27

J. BULLOKAR, AN ENGLISH EXPOSITOR .............-- 25

R.C. van Caenegem, History of European Civil

Procedure, in 16 INTERNATIONAL ENCyY-

CLOPEDIA OF COMPARATIVE Law 19 (Mauro

SD. HUGE v6 sn déccctdscccsceccecys 12

J.S. COCKBURN, A HISTORY OF ENGLISH ASSIZES

Sn cAchs dnectdavsatencesebevaces 24

PE vcreesceesscovessecsusesscesesedous 31

AME, BP hc iceedoddecescudasecatetanes 16

LAWRENCE M. FRIEDMAN, CRIME AND

PUNISHMENT IN AMERICAN History (1993) ........ 16

Richard D. Friedman, Confrontation and the

Definition of Chutzpa, 31 ISRAEL L. Rev. 506 (1997) . 21

Richard D. Friedman, Grappling with the Meaning

of "Testimonial", 71 Brooklyn L. Rev. 241

SER ss 145s dekede bed ee ev eeebeedaekuteaves 18

Richard D. Friedman & Bridget McCormack,

Dial-In Testimony, 150 U. Pa. L. Rev. 1171

cee, A eda eae ets 16, 31, 32

Vili

EDWARD ALEXANDER FRY, ALMANACKS FOR

STUDENTS OF ENGLISH History (1915) ........... 23

T.P. Gallanis, The Rise of Modern Evidence Law,

84 Iowa L. REV. 499 (1999) ......... 0.000005 23, 31

GEOFFREY GILBERT, THE LAW OF EVIDENCE (1754) ..... 25

Stanley A. Goldman, Distorted Vision:

Spontaneous Exclamations as a "Firmly Rooted"

Exception to the Hearsay Rule, 23 Loy. L.A.L.

PE cp buiceddnenddadesduseedvacoivs 26

WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF

GEO o cé va boccséngebscunddesens< 28

WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW

EE 4 6h 0s cneeurreinikadédinete duane 24

SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH

Re OS CEU 660 ceeeededdscesedcese 25

Peter B. Knapp, Excited Utterances in the Real World:

What My Children Have Taught Me About

Reliability, available at http://www.wmitchell.

edu/academics/faculty/knapp3.asp ................ 26

JOHN E.B. MYERS, EVIDENCE IN CHILD ABUSE AND

NEGLECT CASES (3d ed. 1997)................ 27-28

S. MARCH. PHILLIPPS, A TREATISE ON THE LAW OF

EVIDENCE 229 (6th ed. 1824; 7th ed. 1829)...... 29, 30

Allie Phillips, Child Forensic Interviews after

Crawford v. Washington: Testimonial or

Not?, THE PROSECUTOR 17 (July/August 2005) ..... 41

E. PHILLIPS, THE NEW WORLD OF WorpDs (Sth ed. 1696) . 25

Leonard Post, Eyes on Clarifying ‘Crawford’:

Thousands of Cases Hang in Balance,

Nat’! L. J., Oct. 24, 2005, at 1 .............. eee 36

Sample Crawford Predicate Questions, 1 THE VOICE

IC AEED 6 0% 60004 o hceenatecnbeneedvseten’ 40

LAWRENCE H. SCHIFFMAN, SECTARIAN LAW IN THE

DEAD SEA SCROLLS: COURTS, TESTIMONY AND

RE Kid ecccudtadscecoeenens 16

THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE

ENGLISH LANGUAGE (6th ed. 1796) ............... 26

THOMAS STARKIE, A PRACTICAL TREATISE ON THE

LAW OF EVIDENCE (1" Am. Ed. 1826; 3d ed.

PEE EEE odawedcnscadensatbaats 25, 30-31

S.C. Topp, THE SHAPE OF ATHENIAN Law (1993). ......... 1]

W. Ullmann, Medieval Principles of Evidence, |

PE CRUD Se cnGdcceddsrcseetancves 12

JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT

COMMON Law (James H. Chadbourm rev.,

DE cconek deukeddesdavanadioskunns 23, 28

JOHN HENRY WIGMORE, A TREATISE ON 1 HE

SYSTEM OF EVIDENCE IN TRIALS AT COMMON

Pd RPP PrrorrT rrr TTrTr rr Tiere

OPINIONS BELOW

The opinion of the Indiana Supreme Court (J.A. 80-107)

is published at 829 N.E.2d 444 (Ind. 2005). The opinion of the

Indiana Court of Appeals (J.A. 66-79) is published at 809

N.E.2d 945 (Ind. App. 2004). The relevant order of the Miami

County Circuit Court (J.A. 40) is unpublished.

JURISDICTION

The Indiana Supreme Court issued its decision in this case

on June 16, 2005. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitution

provides in relevant part: "In all crimisal prosecutions, the

accused shall enjoy the right ... to be confronted with the

witnesses against him."

STATEMENT OF THE CASE

Responding to a report of a domestic disturbance, Officers

Jason Mooney and Rod Richard of the Peru, Indiana, Police

Department came to the house of Petitioner Hershel Hammon

and his wife Amy on the evening of February 26, 2003. No

evidence indicated how much time had elapsed between the

incident that led to the report and the arrival of the police

officers. Mrs. Hammon was the first person the officers en-

countered; according to Mooney’s testimony at trial, she

appeared to be “timid” and “irightened." Mooney testified that

he asked whether there was a "problem" or "anything was going

on," and that Mrs. Hammon replied in the negative. J.A. 81.

Mooney sought and received permission from Mrs.

Hammon to enter the house. There he found indications of an

altercation: In the corner of the living room, the glass front of

a gas heating unit was broken, with fragments of the glass on

the floor and flames emerging as a result. J.A. 81. Mooney

found Petitioner in the kitchen and asked what had happened.

Petitioner answered that he and Mrs. Hammon had "been in an

argument" but that it "never became physical" and "everything

was fine now." J.A. 81. Richard remained with Petitioner in

the kitchen while Mooney went to speak with Mrs. Hammon

once again. This time, according to Mooney’s testimony,

She informed me that she and Hershel had

been in an argument. That he became irrate [sic]

over the fact of their daughter going to a boyfriend's

house. The argument became . . . physical after

being verbal and she informed me that Mr.

Hammon, during the verbal part of the argument

was breaking things in the living room and I believe

she stated he broke the phone, broke the lamp,

broke the front of the heater. When it became

physical he threw her down into the glass of the

heater. ...

She informed me Mr. Hammon had pushed

her onto the ground, had shoved her head into the

broken glass of the heater and that he had punched

her in the chest twice I believe.

J.A. 82.' Mooney then asked that Mrs. Hammon complete and

sign a battery affidavit, and she did so. J.A. 82. The affidavit

was on a prepared fill-in-the-blank form that Mooney

apparently had with him and that tracked the language of the

battery statute, IC 35-42-2-1, by alleging in general terms that

the defendant “did knowingly touch” the victim “in a rude,

insolent and angry manner,” resulting in bodily injury to the

victim. J.A. 2. In the longest blank, which contained the

' Nevertheless, Officer Mooney did not notice any personal

injury to Mrs. Hammon, and she did not complain that she had any

pain. J.A. 26-27, 29.

instruction “Describe the Acts,” Mrs. Hammon wrote the

following:

Broke our furnace and shoved me down on the floor

into the broken glass and hit me in the chest and

threw me down. Broke our lamps and phone. Tore

up my van where I couldn't leave the house.

Attacked my daughter.

J.A. 82n.1. She then signed her name twice, once under an

acknowledgment that the “investigating officer” was relying

upon her allegations “as establishing Probable Cause for the

arrest of the defendant on the charge of Battery under IC 35-42-

2-1,” and once under an affirmation that the representations in

the affidavit were true, that she understood the provisions of the

“false informing statute,” and that she was reporting a crime.

J.A. 2-3.

The State charged Petitioner with Domestic Battery, a

Class A misdemeanor. On May 9, 2003, the Circuit Court of

Miami County held a bench trial on this charge, consolidated

with a hearing on an allegation that the incident violated the

terms of Petitioner’s probation on an earlier battery conviction.

Mrs. Hammon was not present at the consolidated proceeding.

Although the state had subpoenaed her, it never made any

attempt to show that she was unavailable for trial. Over

Petitioner’s objections, the court admitted both Officer

Mooney's testimony reporting Mrs. Hammon's oral statements

and Mrs. Hammon's affidavit. The court rejected hearsay

objections on the grounds that the oral statement fit within the

excited utterance exception to the hearsay rule and that the

affidavit was a present sense impression. The only other

evidence was brief testimony by the secretary of the county

probation department establishing Petitioner's probation status.

Petitioner offered no evidence.

The trial court convicted Petitioner of Domestic Battery

and also found that he had violated the terms of his probation.

The court sentenced Petitioner to a prison term of one year,

with all but twenty days suspended. It also instructed him to

complete a drug and alcohol evaluation and a counseling

program.

Petitioner took an appeal to the Indiana Court of Appeals,

which upheld the conviction. The appellate court agreed with

the trial court that Mrs. Hammon’s oral statement was an

excited utterance. While the appeal was pending, this Court

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

Crawford, if the statement was testimonial in nature, it could

have been admitted against Petitioner only if he had an

opportunity to cross-examine Mrs. Hammon and she were

shown to be unavailable, but neither of these conditions was

true. Accordingly, the court of appeals considered whether the

oral statement was testimonial within the meaning of Crawford.

The court held, however, that the statement was not testimonial,

and it concluded that admission of the statement did not violate

Petitioner’s rights under the Confrontation Clause. The court

did not reach the question of whether admission of the affidavit

was erroneous, because it concluded that the affidavit was

“cumulative” ofthe report of Mrs. Hammon’s oral statement,

sO any error in admitting the affidavit was harmless. In

reaching the conclusion that Mrs. Hammon’s oral statement

was not testimonial, the court emphasized that the statement

lacked a forma! quality and that the statement was not, in its

view, made in response to interrogation.

The Indiana Supreme Court granted a petition for transfer,

Hammon vy. State, 2004 Ind. LEXIS 1031 (Ind. Dec. 9, 2004),

but it too upheld the conviction. While recognizing that it was

“unclear precisely how much time had passed between the

event and the statement,” the court agreed with the lower courts

that Mrs. Hammon’s statement was excepted from the rule

against hearsay as an excited utterance under Indiana Rule of

Evidence 803(2). The court then turned to the Confrontation

Clause issue, focusing on the meaning of the term

“testimonial.” After reviewing the decisions of the court of

appeals in this case and of courts from other jurisdictions, the

supreme court distanced itself from the court of appeals’

analysis but nevertheless concluded that

a “testimonial” statement is one given or taken in

significant part for purposes of preserving it for

potential future use in legal proceedings. In

evaluating whether a statement is for purposes of

future legal utility, the motive of the questioner,

more than that of the declarant, is determinative, but

if either be principally motivated by a desire to

preserve the statement it is sufficient to render the

statement “testimonial.” If the statement is taken

pursuant to established procedures, either the

subjective motiva-tion of the individual taking the

statement or the ob-jectively evaluated purpose of

the procedure is sufficient.

J.A. 100-01.

Focusing on Crawford’s reference to statements made in

“police interrogations,” the supreme court drew the inference

that such an interrogation “is properly limited to attempts by

police to pin down and preserve statements rather than efforts

directed to determining whether an offense has occurred,

protection of victims or others, or apprehension of a suspect.”

Thus, “responses to initial inquiries by officers arriving at a

scene are typically not testimonial.” J.A. 102.

Turning to the facts of the case before it, the supreme

court asserted that “the motivations of the questioner and

declarant are the central concerns.” Though it noted the

absence of findings on point, the court then concluded that what

it characterized as “the initial exchange between Mooney and

Amy”

fell into the category of preliminary investigation in

which the officer was essentially attempting to

determine whether anything requiring police action

had occurred and, if so, what. Officer Mooney, re-

sponding to a reported emergency, was principally

in the process of accomplishing the preliminary

tasks of securing and assessing the scene. Amy’s

motivation was to convey basic facts and there is no

suggestion that Amy wanted her initial responses to

be preserved or otherwise used against her husband

at trial.

J.A. 104. Thus, the court held that Mrs. Hammon’s oral state-

ments were not testimonial, and there was no error in admitting

them.

The court also held that admission of the affidavit violated

Petitioner’s confrontation right. It indicated that if the case had

been tried to a jury the error may not have been harmless,

despite the fact that the affidavit “merely repeated the substance

of Amy’s statements to Officer Mooney,” because “the

formality of the affidavit may have lent credibility in a jury’s

mind.” But, given that the case was tried to the bench, the court

concluded that the error was harmless. J.A. 106. Accordingly,

Petitioner’s conviction was affirmed. Petitioner then petitioned

this Court for a writ of certiorari, and the Court granted the

writ.

SUMMARY OF ARGUMENT

The Court can decide this case by adopting a simple

principle: A statement made to a known police officer (or other

government agent with significant law enforcement

responsibilities) and accusing another person of a crime is

testimonial within the meaning of Crawford.

~ The Confrontation Clause is an affirmative guarantee that

testimony introduced against an accused must be given under a

prescribed procedure — in the presence of the accused and

subject to cross-examination. The determination of whether a

statement is testimonial in nature therefore depends not on

whether the statement has the characteristics of trial testimony

but on whether the statement fulfills the function of testimony.

As suggested by the frequently used locution "to confront one’s

accusers,” an accusation made to a known police officer lies at

the core of that function. Indeed, if such an accusation is

allowed as proof at trial, then our system has countenanced a

method of testifying that is radically different from the one

constitutionally prescribed.

In assessing whether a statement is testimonial, the critical

perspective is not that of the questioner, if there even is a

questioner, but that of the speaker, the person who made the

Statement and whom the accused assertedly has a right to

confront. The best standard is whether a reasonable person in

the position of the declarant would anticipate use of the

statement in investigation or prosecution ofa crime. Under this

standard, an accusation made to a known police officer is

clearly testimonial.

The decision of the Indiana Supreme Court cannot be

saved by a doctrine allowing otherwise inadmissible statements

because of the proximity of time to the incident'at issue or the

stress under which the speaker made the statement. There was

no such doctrine at the time of the Framing, and it was not

established as a matter of common law until many years

afterward.

Finally, the decision of the Indiana Supreme Court invites

manipulation and creates inappropriate incentives. Without

saying so, the decision amounts to a virtually per se rule that an

oral accusation made to an officer at the scene before any

writing or other recording has been made is not testimonial. In

the court's view, the critical question was whether, in receiving

Mrs. Hammon’s oral accusation, Officer Mooney was engaged

in “the preliminary tasks of securing and assessing the scene.”

The vulnerability of this standard to manipulation is demon-

strated by the way the court applied it in this case. The officer

procured the oral accusation at least in substantial part as a step

in the process of gathering proof for prosecution. He did not

need the accusation to secure the scene, and he did not use it for

that purpose. And if he is deemed to have taken the accusation

for purposes of assessing the scene, then that characterization

will always be possible — until an accusation is made.

The decision of the Indiana Supreme Court gives an

investigating officer an incentive to delay securing the scene,

and to delay the appearance of the scene being secured, so that

oral accusations made at the scene may be introduced at trial if

the accuser does not testify subject to cross-examination. It also

gives the officer an incentive to avoid questions that might be

deemed to be interrogation, even if that would be the most

effective method of learning useful information. The accusa-

tion made at the scene of the incident in this case is no less

testimonial than the station-house statement made in Crawford,

and using it to convict the Petitioner without affording him an

opportunity for confrontation violates the Constitution.

ARGUMENT

I. AN ACCUSATION MADE TO A KNOWN POLICE

OFFICER IS TESTIMONIAL WITHIN THE MEANING

OF CRAWFORD.

The Confrontation Clause imposes three basic conditions

on testimony offered against an accused: First, it must be given.

in the presence of the accused. Coy v. Jowa, 487 U.S. 1012,

1016 (1988).’ Second, the accused must have an opportunity to

cross-examine the witness. Crawford v. Washington, 541 U.S.

36, 53-54 (2004). Third, the witness must give the testimony

at trial unless she is unable to testify there. /d.

Amy Hammon made a statement to Officer Mooney

accusing Petitioner of a crime. This statement satisfied none of

the conditions stated above. Petitioner was not present when

the accusation was made, nor did he ever have an opportunity

to cross-examine Mrs. Hammon, nor did she testify at trial, nor

was her unavailability to testify at trial demonstrated.’ If the

accusation is deemed to be testimonial, therefore, its use at trial

* The question of when or whether this aspect of the right can be

satisfied when the witness and the accused are in different rooms but

connected electronically, cf Maryland v. Craig, 497 U.S. 836 (1990);

Amendments to Rule 26(b) of the Federal Rules of Criminal

Procedure, 535 U.S. 1159 (April 29, 2002) (statement of Scalia, J.)

(explaining Court’s decision not to transmit to Congress proposed

amendment that would allow testimony from a remote location in

some instances), is not raised by this case.

* A further condition of testimony is that it be sworn. See

Crawford, 541 U.S. at 52 n.3. This condition, too, may be protected

by the Confrontation Clause; cross-examination would lose

considerable bite were the witness not subject to the penalties of

perjury. Mrs. Hammon’s affidavit was made subject to those

penalties. J.A. 2-3. Her oral accusation, the one that provided the

basis for Petitioner’s conviction, was not.

— which was essential to Petitioner’s conviction — violated

Petitioner’s rights under the Confrontation Clause as elucidated

in Crawford. .

To decide this case, then, the Court need go no further

than to adopt a simple principle: A statement made to a known

police officer (or other government agent with significant law

enforcement responsibilities) and accusing another person of a

crime is testimonial within the meaning of Crawford. See

Crawford, 541 U.S. at 58 n.8 (treating the statements involved

in White v. Illinois, 502 U.S. 346 (1992) — accusations made

by a child victim to an investigating police officer — as

testimonial and doubting that spontaneity could justify their

admission).

These conditions are sufficient, but not necessary, for a

statement to be testimonial. Decision of this case does not

require a determination of other sets of conditions in which a

statement should be deemed testimonial.

A. An Accusation Made to a Known Police Officer Lies at

the Core of the Concerns Underlying the Confrontation

Clause.

The Confrontation Clause provides that “[i]n all cruminal

prosecutions, the accused shall enjoy the nght. . . to be

confronted with the witnesses against him.” Unlike some

clauses of the Constitution,‘ this one does not merely prohibit

a given procedure. Rather, like the rest of the Sixth

Amendment,’ it provides an affirmative guarantee of the

* See U.S. Const. art. I, § 9, cl. 3 (ex post facto and Bill of

Attainder clauses); art. ITI, § 3, cl. 2; (Attainder of Treason clause);

amend. V (Self-Incrimination clause); amend. VII] (prohibition of

excessive bail and fines and cruel and unusual punishments).

* U.S. Const. amend. VI (providing that “in all criminal

procedure described. Witnesses against the accused must give

their testimony subject to confrontation by the accused — in his

presence, subject to an opportunity for cross-examination, and

at trial if reasonably possible. Assuming the accused has not

waived or forfeited the right, no other way of giving testimony

is permissible. Thus, the Clause would be violated if a prose-

cution witness gave her testimony according to the civil-law

tradition, by examination in private by judicial officers.

Crawford, 541 U.S. at 43. And if an adjudicative system

allowed a prosecution witness to give her testimony by writing

it and placing it in a pot sealed until the time of trial, according

to the later Athenian tradition,° or by relating it to a friend

whom she designated to transmit it to court, the violation would

be just as clear.’

prosecutions, the accused shall enjoy” various rights, including, in

addition to confrontation, the rights to speedy and public trial, by a

jury of the district in which the crime was committed, to compulsory

process and to assistance of counsel); see also art. I, § 3, cl. 1

(requiring “Testimony of two Witnesses” for proof of treason).

* S.C. Topp, THE SHAPE OF ATHENIAN Law 128-29 (1993).

’ The Court’s statement in Crawford that “the principal evil at

which the Confrontation Clause was directed was the civil-law mode

of criminal procedure, and particularly its use of ex parte exam-

inations as evidence against the accused,” 541 U.S. at 50, should be

understood in this light. As the Court amply documents in Crawford,

“the civil-law mode” was the most salient alternative to the common-

law model of testimony, and it was the one that had been used to

oppressive effect both in England and in America. But this does not

mean that the Confrontation Clause meant to allow judicial systems

to provide any mode of testimony so long as it did not resemble that

of the civil law. Indeed, the civil-law system, while not the one

adopted by the common law, was the one adopted by the great

civilizations of continental Europe, and it included some important

protections, such as the oath and cross-examination on written

It follows that, in determining whether a statement is

testimonial within the meaning of Crawford — or, put another

way, whether the speaker is acting as a witness for purposes of

the Confrontation Clause — it is not necessary that the statement

have been made under conditions bearing any resemblance at

all to those of a common-law trial. The whole point of the

Confrontation Clause, as demonstrated by the historical

discussion in Crawford, 541 U.S. at 42-56, is to ensure that

testimony be given at trial or, if necessary, at some other formal

proceeding at which the accused is present and can cross-

examine. The determination of whether a statement is testimo-

nial cannot depend, therefore, on the extent to which it shares

the characteristics of trial testimony. (If it did, those who make

and receive statements in anticipation of prosecution would

have a clear incentive to avoid those characteristics.) Rather,

the critical consideration is whether, assuming statements of its

kind are admissible, a system will have been created in which

witnesses may testify against an accused in some way other

than the one required in a common-law trial, subject to

confrontation of the accused. And this determination will

depend, whatever the circumstances in which the statement was

made, on whether the statement performs the function of

testimony. :

The present case does not demand a detailed or precise

exegesis of what that function is. A serviceable, shorthand,

questions. R.C. van Caenegem, History of European Civil Proce-

dure, in 16 INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW

19 (Mauro Cappelletti ed., c. 1972); W. Ullmann, Medieval

Principles of Evidence, 62 L.Q. REV. 77, 84-85 (1946). A system

that offered fewer protections would not stand in better position

under the Confrontation Clause. Cf Crawford, 541 U.S. at 52 n.3

(“We find it implausible that a provision which concededly

condemned trial by sworn ex parte affidavit thought trial by unsworn

ex parte affidavit perfectly OK.”).

standard is that a statement performs the function of testimony,

and the speaker acts as a witness, if the statement transmits

information for use in investigation or prosecution of crime.

However the function may be described, it appears plain that an

accusation made to a known police officer lies at the heart of it.

Indeed, it is hard to imagine a statement more testimonial

in nature, or one that, if admitted against the person accused

without an opportunity for confrontation, more clearly violates

the Confrontation Clause. Accusations are so much the core of

the Clause’s concern that this Court has often referred to “the

right to confront one’s accusers,” sometimes explicitly

associating that locution — rather than the actual term “the

witnesses against him” — with the Sixth Amendment.’ An

accusation does not provide merely peripheral or supporting

information for a prosecution. Rather, it is an assertion that a

person has committed a crime and, in a case like this one, a

description of the circumstances and nature of the crime. When

it asserts all the elements of the crime — as in this case — it may

be sufficient in itself to support conviction.

Furthermore, the audience for such an accusation makes

it about as far from being a “casual remark to an acquaintance,”

Crawford, 541 U.S. at 51, as possible. The accusation is made

directly to a law enforcement officer, whose responsibility it is

* E.g., Florida v. Nixon, 543 U.S. 175, 185 (2004); Crawford,

541 U.S. at 43 (“The right to confront one's accusers is a concept that

dates back to Roman times.”); Boykin v. Alabama, 395 U.S. 238,

243 (1969).

* E.g., United States v. Ruiz, 536 U.S. 622, 629 (2002); (“the

Sixth Amendment right to confront one's accusers”); Portuondo v.

Agard, 529 U.S. 61, 64 (2000) (“Sixth Amendment rights to be

present at trial and confront his accusers”); Maryland v. Craig 497

U.S. 836, 849-50 (1990) (“the Sixth Amendment's guarantee of the

right to confront one's accusers”).

14 -

to make an arrest, if he deems it appropriate, to transmit

material information to the prosecutor, and, if the occasion

arises and he is allowed to do so, to testify in court about the

information he has received.

In short, if an accusation made to a police officer,

whatever the circumstances in which it was made, may be

admitted against an accused without an opportunity for

confrontation, then virtually the whole of the confrontation right

is lost: Rather than saying that a prosecution witness must

testify in the presence of the accused and subject to cross-

examination, as the Confrontation Clause requires, we must add

a qualifier, that the witness may also testify by making an

accusation to a police officer.

B. As Judged by the Proper Standard — the Reasonable

Expectation of a Person in the Position of the Declarant —

Mrs. Hammon’s Accusation was Clearly Testimonial.

In determining whether Mrs. Hammon's accusation was

testimonial, the Indiana Supreme Court explicitly put primary

weight on the motivation of the questioner. J.A. 100. But

whether a statement is testimonial should be determined from

the perspective of the declarant. The decisive consideration is

the reasonable anticipation of a person in the declarant’s

position.

Though the Indiana Supreme Court indicated that it would

be sufficient to render a statement testimonial that the

questioner was “principally motivated by a desire to preserve

the statement” for “potential future use in legal proceedings,”

J.A. 100, this principle is untenable. It would extend the

confrontation right foo far; indeed, it would require a major

change in police investigative practices. Suppose a conspirator

makes a statement in support of the conspiracy to an undercover

police officer or a confidential informant, who surreptitiously

records the statement for evidentiary purposes. Admission of

such a statement against another member of the conspiracy has

never been considered to violate the confrontation right.'° Nor

should it be: The police officer may be trying to secure evidence

from the declarant, as police secure evidence from many

sources, non-human as well as human, but that does not make

the process testimonial.

More significantly for this case, a questioner’s motivation

to preserve a statement for potential evidentiary use cannot be

necessary to render the statement testimonial. Several

considerations support this conclusion.

First, declining to characterize a statement as testimonial

unless a questioner took the statement for potential use in legal

proceedings would lead to absurd and intolerable results.

Suppose Mrs. Hammon had gone to the police station on her

Own initiative and said, “Here is an affidavit relating a battery

committed on me by my husband. I hope you will use it to help

convict him of the crime.” Clearly, this is testimonial even

though there was no questioner at all."'

'° See Crawford, 541 U.S. at 58 (citing with approval, as among

the Court’s cases that, “in their outcomes, hew closely to the

traditional line,” Bourjaily v. United States, 483 U.S. 171 (1987),

which “admitted statements made unwittingly to a Federal Bureau of

Investigation informant”); United States v. Saget, 377 F.3d 223, 229-

30 (2d Cir. 2004) (concluding “that a declarant's statements to a

confidential informant, whose true status is unknown to the

declarant, do not constitute testimony within the meaning of

Crawford.”); but cf. United States v. Franklin, 415 F.3d 537 (6th Cir.

2005) (citing as supporting admissibility the fact that the recipient of

the statement “was not a police officer or a government informant

seeking to elicit the statements to further a prosecution”).

'' The same conclusion would hold if she made her accusation

in the form of a letter or a videotape that she gave to an intermediary

whom she asked to relay the accusation to the police.

Second, making the role of the questioner decisive ignores

the fundamental nature of the accused’s night, which is to be

confronted with the witnesses against him. The existence of

police officers and public prosecutors is not essential to the

existence of the confrontation right. Indeed, the right to con-

front adverse witnesses predates the institutions of police forces

and public prosecutors by more than two millennia.'? Even at

the time the Confrontation Clause incorporated the right into

the Constitution, there was nothing resembling the modern

police force,’ and both in England and in parts of America

most crime was still privately prosecuted.'* _

'? Deuteronomy 19:15-18 (providing that if a witness makes an

accusation of wrongdoing, “then both parties to the dispute shall

appear before the Lord, before the priests and the judges who are in

office in those days; the judges shall inquire diligently”); Acts 25:16

(“It is not the manner of the Romans to deliver any man up to die

before the accused has met his accusers face to face, and has been

given a chance to defend himself against the charges.”), quoted in

Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988); Lawrence H.

SCHIFFMAN, SECTARIAN LAW IN THE DEAD SEA SCROLLS: Courts,

TESTIMONY AND THE PENAL Cope 73 (1983) (quoting Dead Sea

Scroll on procedure in case only one person witnesses a capital

offense; witness must report crime to examiner in presence of

accused, and testimony is recorded, allowing for accumulation of

testimony across episodes to satisfy three-witness requirement).

'* LawRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN

AMERICAN History 67 (1993) (describing the rise of the modern

police force as one of the “major social inventions” of the nineteenth

century).

'* J.M. BEATTIE, CRIME AND THE CourRTS IN ENGLAND,

1660-1800, at 35-36 (1986), quoted in Richard D. Friedman &

Bridget McCormack, Dial-Jn Testimony, 150 U. Pa. L. Rev. 1171,

1248 n.295 (2002): John D. Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511,

Third, it is not the police or prosecutors or other

questioners who violate the confrontation right. There is

nothing wrong with police officers or prosecutors taking

statements privately, without offering the accused a chance to

be confronted by the witness. Good investigation often

demands that they do so, as they did both in Crawford and in

this case. The Clause is violated only when a court admits the

statement in support of a prosecution without the accused

having an opportunity to confront the witness. That the

statement in question was made to a government officer who

was openly attempting to gather evidence for use in a

prosecution may be a significant factor supporting the

conclusion that the statement is testimonial; that was so in

Crawford and it is so in this case as well.'> But for a statement

to be deemed testimonial, it is not essential that it be received

by a government officer, or that such an officer be motivated by

a desire to record evidence for purposes of prosecution.

The critical perspective, therefore, is not that of the

questioner, if there even is a questioner, but that of the speaker,

the person who made the statement and whom the accused

assertedly has a mght to confront. The Indiana Supreme Court

did purport to consider Mrs. Hammon’s motivation as well as

that of Officer Mooney, but it did so in such a dismissive way,

without any genuine examination of the evidence bearing on the

518-19 (1994).

'S It is true, as Crawford said, that “[i]nvolvement of

government officers in the production of testimony with an eye

toward tnal presents unique potential for prosecutorial abuse... .”

541 U.S. at 56 n.7. The abuse by prosecutors consists not in taking

the statements privately but in taking advantage of such leeway as

the courts allow them to introduce privately given testimony in

evidence at trial without affording the accused the benefit of

confrontation.

question,'® that her motivation cannot have played a substantial

role in the court’s decision.

Furthermore, the court erred by posing the issue in terms

of Mrs. Hammon's motivation. Instead, the question should be

whether a reasonable person in the position of the declarant

would anticipate use of the statement in investigation or

prosecution of a crime. Many different motivations may impel

a witness to make a testimonial statement: She may be

responding to pressure, believing that her own status in the

criminal justice system or other interests of hers (such as her

ability to maintain custody of her children) are dependent on her

making an accusation to the authorities.'’ In some such cases,

she might hope that the statement will never be used against the

person she has accused. Or she might make the statement for

purposes of personal expiation, or catharsis, or to secure her

immediate personal safety."* In none of these cases does the

actual motive of the declarant - or combination of motives,

because of course several may have operated at once — diminish

the testimonial nature of the statement: Whatever her inner

motivations may have been, she has knowingly created

evidence that a reasonable person understands will likely be

used by the criminal justice system. The jurisprudence of the

Confrontation Clause should recognize that such self-conscious

creation of evidence is testimonial without the need to flail

about in the dark in an attempt to understand the psyche of a

speaker who is not even testifying in court.

'® See infra note 48.

'’ Petitioner has asserted that the police threatened to take the

couple’s children away if Mrs. Hammon did not sign an accusatory

statement. J.A. 59. |

'* See Richard D. Friedman, Grappling with the Meaning of

“Testimonial”, 71 BROOKLYN L. REV. 241, 253 (2005).

ne.

Furthermore, focusing on reasonable anticipation rather

than on motivation allows for straightforward adoption of an

objective test: It makes perfect sense to ask, “What would a

reasonable person have anticipated in these circumstances?”

But the question, “Ifa reasonable person made this statement in

these circumstances, what would her motivation have been?” is

conceptually very difficult, if not incoherent. Even if applied

on a case-by-case basis, an objective test is easier to implement

than a subjective one, which requires an inquiry into the

particular speaker’s mind. Moreover, unlike a subjective test,

which necessarily depends on the circumstances of each

particular case, an objective test lends itself to the development

of categorical rules addressing defined portions of the

confrontation landscape. Such rules furthe: simplify implemen-

tation of the mght, and they protect it against erosion. The

greatest value of establishing rights of an accused in the

Constitution, subject to review by one Supreme Court, lies in

the fact that courts that are responsible for the actual

implementation of criminal procedure will often be tempted in

adjudicating particular cases to disregard those rights or

minimize their value. Broad, general tests are of limited utility

in counteracting this factor; brief as the history is under

Crawford, it is enough to show that some courts are inclined to

manipulate the meaning of “testimonial” to admit evidence

about as much as they manipulated the meaning of “reliable”

for the same purpose under the prior regime of Ohio v. Roberts,

448 U.S. 56 (1980);'? some of the post-Crawford decisions —

often applying complex, multi-part tests just as the state

* Crawford, 541 U.S. at 63-64 (discussing how manipulation of

reliability standard made it “so unpredictable that it fail[ed] to

provide meaningful protection from even core confrontation

violations”). Similarly, beginning decades before Roberts, some

courts and commentators manipulated the boundaries of the hearsay

exception for excited utterances. See infra p. 32.

supreme court in Crawford did — are quite startling in this

respect.”°

The Court can decide this case by staying on the prudent

path on which it started two terms ago. Crawford identified

several categories of statement that are necessarily testimonial!

~ “prior testimony at a preliminary hearing, before a grand jury,

or at a former trial; and [statements made in response to] police

interrogations,” 541 U.S. at 68. In this case, the Court merely

needs to add “accusations made to known police officers” to

that list. Such accusations — asserting that another person has

committed a crime, and made to an officer responsible for

*° See, e.g., State v. Barnes, 854 A.2d 208, 210-12 (Me. 2004)

(victim's “statements to the police when she reported a crime,” made

after driving herself to the station-house, were not testimonial

because she initiated the encounter, “she was still under the stress of

the alleged assault,” and her statements were not in response to

“tactically structured police questioning”) (emphasis added); State

v. Wright, 701 N.W.2d 802, 813-14 (Minn. 2005) (victim’s responses

to police questioning about half an hour after the alleged incident

were not testimonial because police were merely “determin{ing] what

happened,” although they already had the suspect in custody and the

officers took notes later used to refresh their memories at trial); State

v. Lewis, 619 S.E.2d 830, 844 (N.C. 2005) (reasons for holding

accusation non-testimonial include: questioner was a field officer,

not a detective; focus of the questioning was “to gather as much

preliminary information as possible about the alleged incident,”

officer not yet being certain of seriousness of crime; accuser did not

initiate conversation; officer was not only other person present;

accuser “did not know the status of the investigation”); State v.

Mason, 110 P.3d 245, 246, 249-51 (Wash. Ct. App. 2005) (victim’s

statements made the day after an attack to “report the crime” were

not testimonial — despite the fact that the victum was questioned at

two separate police stations by several officers — because he was

seeking protection).

initiating the machinery of criminal justice — lie at the core of

the concern of the Confrontation Clause.

Il. ANACCUSATION IS NOT EXEMPTED FROM THE

CONFRONTATION CLAUSE ON THE GROUND THAT

IT WAS MADE UNDER STRESS OF THE INCIDENT.

If, as Part I has argued, there is a categorical rule that

accusatory statements to police officers are testimonial, then the

State cannot prevail unless it brings the case within an

exception to that rule. But none applies.”

The Indiana Supreme Court held that Mrs. Hammon’s

accusation came within the State’s hearsay exception for

“excited utterances,” Indiana Evidence Rule 803(2). Because

Indiana does not have a residual exception to the hearsay rule,

the court noted, the “excited utterance” exception “has been

interpreted broadly to permit admission of statements deemed

trustworthy.” J.A. 85. While noting that “{i]t is unclear

precisely how much time had passed between the event and the

statement,” the court held that “a prompt police response was

a reasonable inference from this record.” J.A. 86-87; the court

*! Crawford left open the possibility that there is a “dying

declaration” exception to the confrontation right, 541 U.S. at 56 n.6.

Even ifso, plainly it does not apply. Counsel has argued in academic

writing that the reason the Confrontation Clause poses no obstacle to

some dying declarations accusing the defendant of homicide is not

that such declarations fit within an exception to the rule against

hearsay but that the defendant has forfeited the confrontation right.

See generally Richard D. Friedman, Confrontation and the Definition

of Chutzpa, 31 Israet L. Rev. 506 (1997). Crawford also explicitly

preserves forfeiture doctrine. 541 U.S. at 62. But the State has never

claimed that Petitioner forfeited the right, as by intimidating Mrs.

Hammon, and there is no basis for doing so; indeed, she specifically

stated that she did not feel threatened by Petitioner. J.A. 64-65.

failed even to speculate, however, as to how much time may

have passed between the event and the domestic disturbance

report that generated the police response.

Indiana is free to make its own hearsay rules, of course,

but the decision contains a strong suggestion that characterizing

the statement as an excited utterance has constitutional

significance. This may explain the court’s cursory dismissal of

the speaker’s perspective. J.A. 95 (“The Court of Appeals is

likely correct that the declarant of an excited utterance will

ordinarily lack the requisite motive because the heat of the

moment makes it unlikely that the declarant is focusing on

preservation rather than communication of information.”) But

the suggestion is incorrect. There is no “excited utterance”

exception to the Confrontation Clause, nor does the excited

state of the speaker render a statement non-testimonial for

purposes of the Clause. And even if there were such a doctrine,

it would not come close to fitting this case.

These points are clear from Crawford, from a footnote not

even cited by the Indiana Supreme Court.” Treating the

accusatory statements in White v. Illinois, 502 U.S. 346 (1992),

as testimonial, the note then addressed the issue of whether

characterizing the statements as “spontaneous declarations”

could justify the absence of cross-examination. The Court said:

It is questionable whether testimonial statements

would ever have been admissible on that ground [as

“spontaneous declarations”] in 1791; to the extent

the hearsay exception for spontaneous declarations

*? Other courts as well, among those reaching similar results,

have disregarded the footnote, presumably because otherwise they

would have to follow its clear implication. £.g., United States v.

Brun, 416 F.3d 703 (8th Cir. 2005); People v. King, 121 P.3d 234

(Colo. App. 2005).

existed at all, it required that the statements be made

"immediat{ely] upon the hurt received, and before

[the declarant] had time to devise or contrive any

thing for her own advantage." Thompson v.

Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694).

541 U.S. at 58 0.8.”

We may now go beyond this statement, because 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. Such a doctrine

did not develop until many years later.”

> Thompson is reported as having been decided in Michaelmas

term, 5 Wm. & Mary, which was 1693, EDbwarRD ALEXANDER FRY,

ALMANACKS FOR STUDENTS OF ENGLISH History | 26, 137 (1915),

as indicated by Wigmore, 6 Joun HENRY WIGMORE, EVIDENCE IN

TRIALS AT COMMON Law § 1747, at 196, § 1749, at 200 (James H.

Chadbourn rev., 1976), rather than 1694; this is the on/y respect in

which Wigmore is better authority than Crawford.

* In a review of hearsay law from 1754 to 1824, Professor

Thomas Gallanis writes,

[T]he treatises indicate that most of the modern exceptions

to the rule against hearsay were in place by the end of the

eighteenth century, even if their contours in particular

cases required clarification. These exceptions were:

legitimacy, family relationships, pedigree, prescription,

custom, general reputation, prior consistent and

inconsistent statements, and dying declarations.

T.P. Gallanis, The Rise of Modern Evidence Law, 84 lowa L. REV.

499,533 (1999)(foomotes omitted). Conspicuously absent from this

list, of course, is an exception for excited utterances.

First, note that Thompson was a civil case.” It therefore

has little or no relevance to the confrontation right.

Second, Thompson appears never to have been cited by

another judge or court — not once — until 1805, and then in

another civil case. It was reported in 1728, Skinner 402, 90

E.R. 179, the report was repeated in virtually identical form in

a compilation of decisions by the judge, Sir John Holt,

published ten years later, Holt 286, 90 E.R. 1057, and then the

case seems to have escaped judicial mention for nearly seventy

years.

Third, Thompson, a brief decision by a single judge, never

even mentions the contents of the statement, its audience, or the

purpose for which it was offered at trial. Was the statement one

that, tming aside, should be considered testimonial? Was it

offered to prove the truth of what it asserted, which would

violate the confrontation right if it was testimonial in nature and

was offered against the accused in a criminal case, or was it

relevant ag part of the story being proven, res gestae in the term

that later became accepted? We can only speculate on these

matters. Because Thompson was so cryptic, later courts and

commentators did not know what to make of it; they cited it for

a wide variety of propositions, but not until the latter part of the

nineteenth century was it thought to provide good support for

the proposition that an accusation made shortly after an event

** The caption names private parties first rather than the Crown,

describes the case as an “action” rather than arising by indictment,

and states that it was heard at nisi prius, which (except in a removal

case, which Thompson was not) is a forum for civil litigation. See

J.S. CockBuRN, A History OF ENGLISH Assizes 1558-1714 134

(1972); 1 Witt1aM Ho_pswortTn, A History OF ENGLISH Law 279

(7th ed. 1956).

might be introduced, absent trial testimony by the speaker, as an

accurate narrative.”°

Fourth, Thompson speaks in terms of immediacy. In 1693

and in 1791, immediate meant what it does today — one event

follows another immediately if nothing occurs in between.”’

*¢ For an early sign of confusion see 2 MATTHEW BACON, A

New ABRIDGEMENT OF THE Law 313 (Ist ed. London 1736) (citing

Thompson by citation for a general paragraph saying: “It seems

agreed, that what another has been heard to say is no Evidence,

because the Party was not on Oath; also, because the Party, who is

affected thereby, had not an Opportunity of Cross-examining; but

such Speeches or Discourses may be made use of by Way of

Inducement or Illustration of what is properly Evidence.”).

The proposition for which Thompson is cited in the annotations

published with Gilbert’s treatise, GEorFREY GILBERT, THE LAW OF

EVIDENCE 108 (1754) (“But tho’ Hearsay be not allow’d as direct

Evidence, yet it may be in Corroboration of a Witness Testimony to

shew that he affirmed the same thing before on other Occasions, and

that the Witness is stil] consistent with himself; for such Evidence ts

only in Support of the Witness that gives in his Testimony upon

Oath.”), is inapposite to the case; the declarant presumably did not

testify at trial because she was a party in a civil case and so was

disqualified.

One of the leading treatises of the first part of the nineteenth

century treated Thompson as standing only for the proposition that

“the fact of making the complaint immediately . . . is admissible in

evidence.” 1 THOMAS STARKIE, A PRACTICAL TREATISE ON THE

Law OF EvIDENCE 16] (Sth ed. 1834).

7 J. BULLOKAR, AN ENGLISH Expositor (8th ed. 1688) (“That

which cometh directly from one thing to another without any thing

between.”); E. PHILLips, THE NEw WorLb oF Worps (Sth ed. 1696)

(“next, and presently following”); SAMUEL JOHNSON, A DICTIONARY

OF THE ENGLISH LaNGuaGE (Sth ed. 1773) (“Being in such a state

with respect to something else as that there is nothing between

them.”); N. BaiLtey, AN UNIVERSAL ETYMOLOGICAL ENGLISH

And if, as Thompson suggests, the rationale is that the speaker

has no time to create a self-serving falsehood, then the

permissible time frame is indeed instantaneous, because in

many situations such creation takes no more than an instant.”

Immediacy does not remotely resemble the present case.

DICTIONARY (25th ed. 1783) (“which follows without any thing

coming between.”); THOMAS SHERIDAN, A COMPLETE DICTIONARY

OF THE ENGLISH LANGUAGE (6th ed. 1796) (“instant; present with

regard to time.”).

** Consider this episode related by an experienced Evidence

teacher:

My wife and I had decided to remodel the den in our home

and |... decided to refrain from sharing that fact with two

of our sons, Nathan, then age 3, and Chris, age 4. On the

day work was to begin, I took them off to daycare. During

the day, we ripped out the carpet in the room, tore out the

bookcases, stripped off the wallpaper, knocked out the

walls of a closet, and generally reduced the room to a bare

shell. At the end of the day, I picked up Nathan and Chris

at daycare, took them home, and led them by the hand into

the now-demolished room. They stood there, beholding

the wreckage, eyes wide and mouths agape, clearly in the

stress of excitement caused by the event- And in that

moment, Nathan turned to me and said, “Chris did it.”

Peter B. Knapp, Excited Utterances in the Real World: What My

Children Have Taught Me About Reliability, available at

http://www.wmitchell.edu/academics/faculty/knapp3.asp. See also

Stanley A. Goldman, Distorted Vision: Spontaneous Exclamations

as a “Firmly Rooted” Exception to the Hearsay Rule, 23 Loy.L.A.

L. Rev. 453, 460 (1990) (“Commentators cite to psychological

studies indicating that the interval which separates cognition from

the onset of the capacity to fabricate is brief — often a matter of

fractions of seconds — and impossible to gauge without the aid of

instruments.”’).

Between the alleged incident and Mrs. Hammon’s accusation,

there passed not only an unknown amount of time but also two

attempts by the police to secure a statement from her. Indeed,

it is clear that there was more than ample time to falsify because

on the State’s own theory Mrs. Hammon did just that well

before making her accusation: Her first statement to Officer

“4ooney, inconsistent with the later accusation, denied that

there was a problem.

In contrast to Thompson, note the well-known case of R.

v. Brasier, 1 Leach 199, 168 E.R. 202 (1779). There, a young

girl, under seven years of age, “immediately on her coming

home” told her mother and a woman who lodged with her of a

sexual assault by the accused. The two women testified at trial,

but the girl “was not sworn or produced as a witness on the

tial.” After Brasier was convicted, the judge referred the

matter to the Twelve Judges, who decided unanimously that the

two women should not have been allowed to recount what the

girl had told them. Strikingly, and explicitly, the judges

referred to the girl’s statement as testimony. They held that “no

testimony whatever can be legally received except upon oath.”

Even very young children could take the oath if they had

sufficient knowledge of its nature and consequences, but if

found incompetent “their testimony cannot be received.”

The manifest premise of the judges’ discussion was that

if the speaker had been an adult it would have been plainly

improper for other persons to relay her accusations — her

“testimony” — to court; the only question, answered in the

negative, was whether the youth of the speaker made a

difference. Brasier clearly reflects the law of its time,” and it

** The case was soon picked up by treatises. See, e.g., FRANCIS

BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT

Nis! Prius 293 (Sth ed. 1790), and it continues to be good law with

respect to the competence of child witnesses. JoHN E.B. Myers,

held squarely against admissibility notwithstanding the presence

of several factors, absent in the present case, that might have

been argued to point the other way — the demonstration of

immediacy, and the facts that the speaker was a child, that her

audience was not government officials, and that she was not

responding to questioning.

Thus, at the time of the Framing, there was no special rule

allowing admissibility of accusatorial statements because they

were made under stress of excitement. There were two

situations in which such statements might be admitted. First,

as Crawford noted, there was a well-established doctrine

admitting certain dying declarations. 541 U.S. at 56 n.6.

Without deciding “whether the Sixth Amendment incorporates

an exception for testimonial dying declarations,” Crawford

said, “If this exception must be accepted on historical grounds,

it is sui generis.” Id. Arguably, the doctrine is better regarded

as a reflection of the forfeiture principle.” Either way, it has no

bearing on this case. Second, throughout the 18" century courts

were lenient in admitting prior consistent statements of a trial

witness to bolster the witness’s testimony in court.” Indeed, an

annotation placed in the margin of Gilbert’s celebrated treatise

on evidence when that work was published posthumously in

1754 refers to Thompson (by citation only, not by name) for this

proposition only.** But this doctrine also is clearly inapposite

EVIDENCE IN CHILD ABUSE AND NEGLECT Cases § 3.2, at 206-07 (3d

ed. 1997).

*° See supra note 21.

"4 JoHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON

Law (James H. Chadbourn rev. 1972) § 1123, at 254; see, e.g., 2

WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 431

(1721).

* See supra note 26.

to acase like the present one, in which the complainant did not

testify at trial.”

In the decades after the adoption of the Confrontation

Clause in 1791, the common law continued, generally under the

rubric of hearsay, to develop in solicitous regard for the

confrontation right. The modern concept of hearsay — an out-

of-court statement offered to prove the truth of what it asserts

— emerged. The general rule excluding hearsay was subject to

two sorts of limitations.

First, some types of statements that fit the definition of

hearsay were excepted from the rule — but as noted in

Crawford, 541 U.S. at 56, except for dying declarations, these

did not include statements of a testimonial nature offered

against a criminal defendant. See supra note 24.

Second, a statement might be admitted to prove the truth

of some proposition other than what it asserted; with

admissibility limited in this way, the statement did not pose a

confrontation problem.** For example, especiaily in rape cases

it was common practice to prove that the alleged victim had

made a complaint shortly after the incident. But only “the fact

of making the complaint immediately’ was admissible,

*° See Crawford, 541 U.S. at 59 n.9 (preserving the rule of

California v. Green, 399 U.S. 149 (1970), that there is no

Confrontation Clause violation if the declarant testifies at trial).

** Note, for example, the following passage from 1 S. MARCH.

PHILLIPPS, A TREATISE ON THE LAW OF EVIDENCE 229 (7th ed.

1829), not found in earlier editions (including the 6th edition of

1824): “Hearsay is not admitted in our courts of justice, as proof of

the fact which is stated by a third person.”

** That continues to be the law. See Crawford, 541 U.S. at 59

n.9, affirming the rule of Tennessce v. Street, 471 U.S. 409 (1985).

generally because it supported her credibility;** the particulars

of the complaint, including the identity of the assailant, were

not.”’

Similarly, alongside the hearsay rule developed the

concept of res gestae, which provides not an exception to the

rule against hearsay but a way around it: If the making of the

statement has significance as a part of the incident that is the

subject of the litigation, then it may be admitted on that basis,

without relying on the statement as an accurate narrative of

events.”* Professor Gallanis cites a case from 1794 relying on

EvipeNce 148 (3d ed. 1830). Starkie cites Thompson for this prop-

osition. See supra note 26.

*” See, e.z., 1 S. MARCH PHILLIPPS, supra note 34, 233 (“the

particulars of the complaint, stated by her on the former occasion, are

clearly not admissible as evidence of the truth of her statement”); R.

v. Osborne, Car. & M. 622, 624, 174 E. R. 662, 663 (1842) (allowing

evidence that the victim named some person as the perpetrator

immediately after the attack, but the question “whose name was

mentioned” could not be asked); R. v. Megson, 9 Car. & P. 420, 422,

173 E. R. 894, 895 (1840) (“All that could safely be received was .

.. her complaint that a dreadful outrage had been perpetrated upon

her,” not “the particulars of the complaint as independent evidence”);

R. v. Walker, 2 M. & Rob. 212, 174 E. R. 266 (1839).

** One leading treatise described the distinction this way:

If the declaration or entry has no tendency to illustrate the

question, except as a mere abstract statement, detached

from any particular fact in dispute, and depending for its

effect entirely on the credit of the person who makes it, it

is not admissible in evidence; but if, on the contrary, any

importance can be attached to it as a circumstance which

is part of the transaction itself, and deriving a degree of

credit from its connection with the circumstances,

this doctrine — but a civil case, not involving an excited

utterance, and not even referring to the doctrine by name.*? The

term itself appeared shortly after that and in 1805 a judge in a

civil case referred to the statement in Thompson as having been

“given in evidence as part of the res geste”; this appears to be

the first judicial citation of Thompson.“ Soon after that, the res

gestae doctrine began to be elaborated in the treatises.*!

Through most of the nineteenth century and well into the

twentieth, courts on both sides of the ocean adhered rigidly to

the principle that the res gestae doctrine only supported

admissibility of a statement that was (a) made

contemporaneously with, or at most a short time after the event

it described, and (b) not “a narrative of a past occurrence.”* By

the time Wigmore wrote the first edition of his treatise at the

turn of the twentieth century, these constraints had begun to

independently of any credit to be attached to the speaker or

writer, then the declaration or entry is admissible in

evidence.

| THOMAS STARKIE, A PRACTICAL TREATISE ON THE LAW OF

EVIDENCE, at pt. I, § 28, at 47 (ist Am. ed. 1826).

** Gallanis, supra note 24, at 535 & n. 266, 537 & n. 288.

*° Aveson Vv. Kinnaird, 6 East 188, 193-94, 102 E.R. 1258, 1261

(1805).

*' Gallanis, supra note 24, at 533 & n.251.

*? 22 Corpus Juris § 556, at 467-68 (1920) (“A statement

which is merely narrative of past transactions or events is not

admissible as part of the res gest@, even though it was made soon

after the occurrence to which it relates.”) (citations omitted);

Friedman & McCormack, supra note 14, at 1215, quoting Upton v.

Commonwealth, 2 S.E.2d 337, 339 (Va. 1934).

bend. Wigmore greatly accelerated the development.” Citing

Thompson as his earliest authority, he argued that some cases

reflected not merely the res gestae doctrine but a genuine

hearsay exception — that is, if uttered under sufficient

excitement caused by a stressful event or condition, a statement

could be admitted as an accurate report of what it asserted.

Acknowledging that the existence of this exception had not

always been clear, he claimed only that it had been established

for about a generation.“

Over the course of the twentieth century, the restraints on

the excited utterance exception progressively loosened.*° This

Court’s decision in White v. Illinois, 502 U.S. 346 (1992),

ensured — until Crawford —that the Confrontation Clause would

pose no obstacle to the admission of statements that were

deemed excited utterances or spontaneous declarations for

purposes of hearsay law. Prosecutors naturally took advantage

of the leeway the courts allowed them, frequently securing

admission of accusatory statements made shortly after the

incident at issue, without even the need to demonstrate the

accuser’s unavailability. But, common as the practice had

become before Crawford restored independent force to the

confrontation right, it remains clear that at the time of the

Framing and for many years before and after, the practice would

not have been tolerated.

That older rule, the one that prevailed before Wigmore’s

focus on reliability dominated understanding of the

confrontation right, is the one that squares with a sound

conception of the right. The present context, involving an

** Friedman & McCormack, supra note 14, at 1217-20.

“* 3 Joun HENRY WiGMORE, A TREATISE ON THE SYSTEM OF

EVIDENCE IN TRIALS AT COMMON Law 2249-50 (1st ed. 1904)

* Friedman & McCormack, supra note 14, at 1220-24.

accusation made to a police officer, illustrates the point vividly.

That such an accusation is made hastily or in excitement does

not rob it of its testimonial character or mean that it is of no

concern under the Confrontation Clause. On the contrary, if

such accusations may be used to secure a conviction, then we

have countenanced a system in which accusers may make their

accusations in a form that may easily be relayed to court but

without satisfying any of the conditions long required for

prosecution testimony — so long as the accusers speak in haste

and excitement.

Il. THE INDIANA SUPREME COURT’S RULE

INVITES MANIPULATION AND CREATES IMPROPER

INCENTIVES.

A. The Indiana Supreme Court’s Rule Improperly Treats

Pre-Recording Oral Accusations Made at the Scene of the

Alleged Crime as Not Testimonial.

The basic principle advocated here is that accusatorial

statements made to a known police officer are testimonial. Far

from advocating such a categorical rule, the Indiana Supreme

Court declared explicitly that “responses to initial inquiries by

officers arriving at a scene are typically not testimonial.” J.A.

102. This assertion understates the effect of the court's

decision in two respects.

First, the decision applies broadly to inquiries made at the

scene of an investigation, not merely to initia’ inquiries made

upon arrival there. Although Mrs. Hammon’s accusation

resulted from what the Indiana Supreme Court characterized as

“the initial exchange between Mooney and Amy,” J.A. 104, the

actual initial exchange — the one that was made when the

officers “arriv[ed] at [the] scene” — was utterly unproductive

from the viewpoint of the officers and, later, the prosecution.

In that exchange, Officer Mooney asked Mrs. Hammon whether

there was a problem“ and she answered that “nothing was the

matter, that everything was okay.” J.A. 14. It was only after

the officers went inside the house, looked around, spoke to

Petitioner, met Mrs. Hammon separately from the Petitioner,

and pressed the matter again that she made the accusation that

was the basis for Petitioner’s conviction.*’

Second, the decision is not merely an assessment of the

typical case. Rather, it amounts to a virtually per se rule that an

oral accusation made to an officer at the scene before any

writing or other recording has been made is not testimonial.

Given the Indiana Supreme Court’s holding in this case it is

hard to imagine circumstances in which that court would regard

as testimonial an oral accusation made at the scene before any

recording. The court supposedly considered the situation from

the perspective of the speaker, Mrs. Hammon, but in such a

cursory and conclusory way that this amounted to no

consideration at all.** Rather, the court explicitly gave principal

“* The officer himself characterized this as his "initial question."

J.A. 15.

*’ This repeated questioning gives the interaction between

Officer Mooney and Mrs. Hammon the quality of an “interrogation,”

though the case should not turn on that matter.

** The court said, “Amy’s motivation was to convey basic facts

and there is no suggestion that Amy wanted her initial responses to

be preserved or otherwise used against her husband at trial.” J.A.

104. The court provided no support for this conclusion, which is

patently dubious at best. Indeed, the “basic facts” that Mrs. Hammon

conveyed in her [not really initial] oral statement were those

constituting a battery. Whatever her reluctance and mix of feelings,

Mrs. Hammon was making an accusation of a serious crime to an

investigating police officer; the only plausible conclusion is that she

anticipated governmental use of this accusation, and she should be

consideration — incorrectly, for reasons discussed above in Part

I- to the motivation of the questioning officer, J.A. 100 (“the

motive of the questioner, more than that of the declarant, is

determinative”), concluding that Officer Mooney “was

principally in the process of accomplishing the preliminary

tasks of securing and assessing the scene.” J.A. 104. But the

court's application of the standard to this case demonstrates how

manipulable that standard is.“

If Officer Mooney is deemed to have taken Mrs.

Hammon’s oral statement to “secure” the scene, then that

characterization will always be possible. The officers needed

no new information to secure the scene; they knew who and

where the protagonists were. Indeed, the scene was already

secure — Mrs. Hammon and Petitioner were separated, one

officer with each. Moreover, Officer Mooney’s next move after

receiving the oral statement did nothing to make the scene more

secure. In compliance with his routine practice, he brought out

an affidavit form for Mrs. Hammon to complete and sign,

which she did.” There is no indication in the record that he had

deemed to have intended this natural consequence of her actions.

Even if the question were whether Mrs. Hammon “wanted” her oral

statement preserved or used against Petitioner, and even if Petitioner

had the burden of demonstrating that this was so — neither of which

is so — the contents of the statement, together with the fact that the

very next thing Mrs. Hammon did was to fill our a battery affidavit,

would be far more than sufficient to carry that burden.

* Cf. Crawford, 541 U.S. at 65-66 (“Roberts’ failings were on

full display in the proceedings below. ... The case is...a

self-contained demonstration of Roberts’ unpredictable and incon-

sistent application.”’).

°° Q After your conversation with Mrs. Hammon, where did

you direct your attention next? What did you do after

you finished your conversation with Mr. [sic] Hammon?

to leave the house to get the form. The affidavit was simply an

effort to record evidence,*' and the oral conversation

immediately beforehand was part of the process by which the

officer secured the affidavit. On any reasonable view of the

facts, then, at least “in significant part” Officer Mooney took

the oral statement “for purposes of . . . potential future use in

legal proceedings,” J.A. 100.”

Similarly, if Mrs. Hammon’s statement is deemed to have

been taken for the purpose of assessing the scene, then this

characterization will be satisfied by any oral accusation made

at the scene of an alleged crime before any writing or other

recording has been taken. By the time Mrs. Hammon made her

A Thad her fill out and sign a battery affidavit and I asked

her if she would.

JA. 18.

* Q And what’s the purpose of that document?

A To establish events that have occurred previously.

J.A. 18.

*? Indeed, Counsel of Record for the State appears to have

acknowledged as much when he said, referring to the possibility that

this Court might hold Mrs. Hammon’s accusation to be testimonial,

“The confrontation clawse should not be construed in a way that

would discourage police from determining whether the victim needs

immediate protection.” Leonard Post, Eyes on Clarifying ‘Craw-

ford’: Thousands of Cases Hang in Balance, Nat’! L. J., Oct. 24,

2005, at 1. We believe the fear reflected by this comment is

completely unfounded, see infra p. 40, but what is relevant here is

that the only way conduct of the police at the scene of the alleged

crime could be altered by a judicial holding that certain statements

are inadmissible is if the police are thinking ahead to trial and

motivated at least in substantial part by evidentiary considerations.

accusation, Officer Mooney had, by his own account,

considerable evidence that Petitioner had committed a battery

on his wife. He began with the original disturbance report,

which appears to have been enough for him to bring a battery

affidavit form into the house with him. At the house, he

observed Mrs. Hammon’s frightened demeanor, Petitioner’s

acknowledgment that there had been an argument, and the

physical signs of a very recent disturbance. This was enough to

warrant pressing the matter a second time with Mrs. Hammon

because it strongly suggested an assault, but one key piece of

evidence was lacking: an accusation by her. Of course, it was

possible that no crime had been committed (and Petitioner

denies that one had been), but that is always true; it is not the

job of the investigating officer to determine guilt beyond a

reasonable doubt. Even after hearing an accusation, the officer

may have considerable doubt as to whether a crime has been

committed. In any event, before an accusation has been made,

the officer will always have — and will always be able to testify

that he had — significant doubt on that score. If that is enough

to render a statement non-testimonial, as the Indiana Supreme

Court held in this case, then the first accusation made orally and

at the scene will never be deemed testimonial, no matter how

strong the officer’s understanding may be beforehand that one

consequence of his efforts will be the gathering of evidence for

potential use in prosecution.

B. The Indiana Supreme Court’s Rule Encourages

Manipulation by Police Officers and Gives Them Improper

Incentives.

Assuming hypothetically that, notwithstanding all the

above arguments, an accusation to a police officer falls outside

Crawford if the officer was still “securing and assessing the

scene,” the police have a ready protocol to secure from

cooperative witnesses accusations that can be admitted at trial

without the accuser ever taking an oath or facing the accused or

cross-examination.

First, the officer should refrain from securing the scene

until after interviewing the person he thinks may be an accuser

— or at least he should not complete the task, so that he can later

contend that the scene was not yet secure.

Second, the officer should interview the person he thinks

may be an accuser at the scene of the incident, rather than at the

station-house; if he waits until the station-house, he cannot

contend that he was securing and assessing the scene.

Third, in conducting the interview, the officer should

attempt to avoid what might be characterized as “structured . .

. questioning,” the response to which is necessarily testimonial.

Crawford, 541 U.S. at 53 n.4. But if one open-ended question

does not yield an oral accusation, itis acceptable to try a second

time; that is what Officer Mooney did.

Fourth, the officer should be prepared to testify that until

the interviewee made an oral accusation — which will be suffi-

cient to gain a conviction — he had not reached a conclusion as

to whether a crime had been committed, and if so what.*

Fifth, the officer should be prepared to testify that until

that time the accuser was still agitated or otherwise appeared to

be under the influence of the event in question. This will

presumably satisfy the excited utterance exception to the rule

against hearsay and therefore also satisfy any remaining

* Cf State v. Lewis, 619 S.E.2d 830, 844 (N.C. 2005)

(concluding that before speaking with accuser, officer “had reason

to believe a crime may have been committed, but the seriousness and

factual existence of a crime had not yet been established”).

requirement under the Confrontation Clause, assuming the

accusation is not deemed testimonial.”

Sixth, until after the making of that accusation, the officer

should neither write anything down, otherwise record it, nor

ask the witness to do so, because the recording itself and

subsequent communications are likely to be considered

testimonial. But once the witness has made an accusation

orally, the prudent course is to record it.*°

If the officer follows this roadmap, then under the Indiana

Supreme Court’s approach that will be enough for the oral

accusation to be admitted without the accuser having to come

to trial or take an oath and face cross-examination and without

even a need to demonstrate her unavailability. This will be true

irrespective of whether, in conducting the interview, the officer

fully expected and hoped that the witness would accuse the

defendant of a crime. Similarly it will not matter that, in

** Crawford indicates that Roberts might still apply with respect

to non-testimonial statements, 541 U.S. at 68, and Roberts would be

satisfied by showing that a statement falls within the hearsay

exception for excited utterances or spontaneous declarations. White

v. Illinois, 502 U.S. 346 (1992).

** The Indiana Supreme Court recognizes that if the officer asks

for a written statement as soon as the witness make§ an oral one, that

written statement itself is testimonial. J.A. 104. Nevertheless, the

officer has good reason to ask for such a statement then. Perhaps

most importantly, if the witness testifies subject to cross-examina-

tion at trial, then the Confrontation Clause “places no constraints at

all on the use of his prior testimonial statements. See California v.

Green, 399 U.S. 149, 162 (1970).” Crawford, 541 U.S. at 59 n.9.

And, under the decision of the Indiana Supreme Court, the officer

has no reason not to ask for a written statement then, because doing

so does leaves unaffected the conclusion that the oral statement was

not testimonial.

making an accusation to a police officer, a person of ordinary

understanding in the witness’s position would necessarily

anticipate that the criminal justice system would use the

information just conveyed against the defendant.

In short, the decision of the Indiana Supreme Court

creates terrible incentives for police officers. First, the decision

gives a police officer an incentive to delay securing the scene

and protecting victims.*° This is not simply a matter of

balancing competing priorities of security and proof. Rather,

the decision of the Indiana Supreme Court means that securing

the scene will actually undermine the ability of the prosecution

to introduce evidence, because once the scene is secure, then

subsequent oral statements are likely to be deemed testimonial.

Second, the decision of the Indiana Supreme Court gives

the officer hope that he may procure an accusation that could be

admitted at trial in the absence of the accuser — but only if he

avoids questioning that will be deemed to be an interrogation.”

Thus, the officer must forgo arguably structured questioning

and instead ask vague, open-ended questions that may be less

likely both to yield full information and to allow him to secure

** For this reason, we believe, with respect, that Counsel for the

State got it exactly wrong when he suggested that reversing the

decision of the Indiana Supreme Court “would discourage police

from determining whether the victim needs immediate protection.”

See supra note 52.

*? See Sample Crawford Predicate Questions, 1 THE Voice 8

(Nov. 2004), available at http://www.ndaa-apri.org/pdf/the_ voice

_vol_1_issue_1.pdf (proposing that police officers be asked predicate

questions at tria! such as: “Were the statements taken during ‘the

course of an interrogation’?” “Were your questions to her an inter-

rogation or merely part of your initial investigation?”; “Were these

questions asked in order to determine whether a crime had even

occurred?”).

the scene quickly. Similarly, the officer should refrain from

trying to calm the accuser down or give her a chance to

compose herself before speaking to her, he should avoid

anything that might seem like a reminder to tell the truth or an

assessment of her truth-telling capacity.”

In contrast, the proper rule, under which accusatorial

statements made to police officers are categorically recognized

to be testimonial, leaves officers’ incentives undistorted. It

recognizes that the confrontation right is not a rule governing

police conduct but rather a fundamental rule of judicial

procedure.” Police are free to protect victims, to apprehend

suspects, and to gather evidence, all as they see fit in the

circumstances of the particular case. Performance of their

duties is not deflected by an attempt to take accusatory

statements in a form that can be introduced at trial if the accuser

does not testify subject to confrontation.

Finally, and ironically, the evidence allowed by the

Indiana Supreme Court in this case is inferior to that rejected by

Crawford. In Crawford, the statement was audio-taped, so that

at least the jurors had no doubt about what the witness actually

said and they could hear how Sylvia Crawford sounded as she

made her statement. Under the Indiana Supreme Court’s

holding, all the trier of fact had to go on was the police officer’s

second-hand report of an oral statement made to him in the

presence of no one else.

* Cf. Allie Phillips, Child Forensic Interviews after Crawford

v. Washington: Testimonial or Not?, THE PROSECUTOR 17, 27

(July/August 2005) (suggesting danger under Crawford of using

truth-lie test despite concern of many forensic interviewers that

absent such test interview will lack legitimacy).

** See Kentucky v. Stincer, 482 U.S. 730, 738 n.9 (1987) (“The

Court sometimes has referred to a defendant's right of confrontation

as a ‘trial right.’”).

Crawford effectively ruled that testimony given in the

station-house rather than face-to-face with the accused and

subject to cross-examination is not an acceptable method of

proof. The State should not be allowed to attain the same

objective that Crawford denies them, by using at trial an

accusation that was never subjected to confrontation and was

given at the crime scene instead of in the station-house. No

doubt, Crawford will pose some close and difficult cases. This

is not one of them.

CONCLUSION

The decision of the Indiana Supreme Court should be

reversed.

Respectfully submitted,