Respondents Brief — Hammon v. Indiana
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Supreme Court, U.S.
(/ FILED
FEB 2 - 2006
No. 05-5705 OFFICE OF THE CLERK
a in
IN THE
Supreme Court of the Gnited States
HERSHEL HAMMON,
Petitioner,
Vv.
STATE OF INDIANA,
Respondent.
On Writ of Certiorari to the
Indiana Supreme Court
BRIEF OF RESPONDENT
STEVE CARTER
Office of the Indiana Attorney General
Attorney General THOMAS M. FISHER*
IGC South, Fifth Floor Solicitor General
302 West Washington St. NICOLE M. SCHUSTER
Indianapolis, IN 46204 JULIE A. HOFFMAN
(317) 232-6201 Deputy Attorneys General
*Counsel of Record Counsel for Respondent
QUESTION PRESENTED
Whether a victim’s oral statements to police responding
to an emergency dispatch are “testimonial” statements within
the meaning of Crawford v. Washington, 541 U.S. 36 (2004),
when there is no evidence of interrogation and the police are
merely assessing the situation.
i
TABLE OF CONTENTS
Page
ee ee WERE CIE ciccaiocistinty sisnkanicnsiinntiinschloecibbnaiihisainiie i
Se Fe PED cintenitaisictinintinitessedinninanins iv
ELA CIES COE COU RI veciis ccecsictncendbsnessnebiinesinssonads |
SUMMARY OF THE ARGUMENT ...00.. oo eeeeeceeeeeee 7
ST ITO: sesicesiuloinpclncseniniiccscesicihimeiiindiadeihiteapiaeandonininiiblilaasiamaeins 12
I. “Testimonial” Statements Arise from
Inquisitorial Practices, Not Emergency Assistance ...... 12
A. The text of the Confrontation Clause limits
which statements are “testimonial” ............0.0.......04. 14
B. The Framers sought to prevent the historical
abuse of conducting trials by using statements
procured through formal extrajudicial
examinations with no opportunity for
I se ciatincecticteseltnilly Ntcrhaititalecbinadtatesaie 15
|. The continental civil-law practices ..................... 16
2. Pre-Marian specialty and prerogative courts ...... 17
3. Practices under the Marian Bail and
a: hc RT NO 20
C. Historically and colloquially, “interrogation”
means Coercive questioning that is easily
ee ae chi erinctnssciininiesteenitreabbinaibaanniaiiicn 22
D. The Court’s Confrontation Clause precedents
confirm that “testimonial” statements are
derived from formal inquisitorial practices............. 25
Il. Statements to Officers Whose Actions or Questions
Reasonably Relate to the Immediate Safety of
Persons or Property Are Not “Testimonial™.................. 27
lil. Neither a Statement’s Content Nor a Declarant’s
Expectations Has Any Connection to Defining
“Testimonial” under the Confrontation Clause
A. Whether a statement “accuses” has no
relationship to whether it is “testimonial”.
B. Whether a reasonable declarant would have
understood the statement to be available for
prosecution has no Confrontation Clause roots ......
IV. The Confrontation Clause Should Not Bar Using
Initial Victim Statements in Typical Domestic-
I
ee ee
A. In domestic-violence cases, it is typically the
defendant, not the State, that keeps the victim
from testifying at trial... eee ee eeeeees
B. Victims of domestic violence are typically
motivated by concerns for safety ...............
V. Amy Hammon’s Oral Statements to Officer
Mooney Were Not “Testimonial” ....................
I D iiccicteterncssiichihitaitsisigniocicdcnhancdieihisientenjbiben
ee
1V
TABLE OF AUTHORITIES
Cases Page
Barber v. Page, 390 U.S. 719 (1968)... cccccceecceeesceseseereee 26
Bruton v. United States, 391 U.S. 123 (1968)... 26
California v. Green, 399 U.S. 149 (1970) ooo... 26, 35, 41
Chambers v. Mississippi, 410 U.S. 284 (1973).........00.cceeee 42
Crawford v. Washington, 541 U.S. 36 (2004) ............. passim
Cruz v. New York, 481 U.S. 186 (1987).................ccceseseeeeees 26
Douglas v. Alabama, 380 U.S. 415 (1965) ........ccccccceeeeeeee: 26
Dutton v. Evans, 400 U.S. 74 (1970) .......cccccesececeesesssseeseeses 27
Idaho v. Wright, 497 U.S. 805 (1900) ...ccsscsssssesssesne 27, 28
Kirby v. United States, 174 U.S. 47 (1899)... econ 26
Lee v. Illinois, 476 U.S. 530 (1986) .............ccccccccsssssssereresees 26
Lilly v. Virginia, $27 U.S. 116 (1999) oo eee eceeeeeeee 26
Mancusi v. Stubbs, 408 U.S. 204 (1972)... eceeeeeeeeeeees 26
Mattox v. United States, 156 U.S. 237 (1895) oo... cece. 26
Motes v. United States, 178 U.S. 458 (1900) occ ceeeeeeees 26
Nelson v. O'Neil, 402 U.S. 622 (1971) ou... cececeseessseeeeeeeeees 4)
Ohio v. Roberts, 448 U.S. 56 (1980)... ecceeeeeeeeteeeeees 33
Parker v. Randolph, 442 U.S. 62 (1979) ooocceceeecccecceeeeeeetees 26
Pointer v. Texas, 380 U.S. 415 (1965)... ec ceeceeeentee ees 26
Rhode Island v. Innis, 446 U.S. 291 (1980)... eee td
Roberts v. Russell, 392 U.S. 293 (1968) ....0000.00 ee. anes 26
Cases (Cont'd) Page
Stancil v. United States, 866 A.2d 799 (D.C. 2005),
reh'g granted and judgment vacated,
ED Os Ai Riaccsasnsnccescerscosencessneceseceens 29, 30
State v. Barnes, 854 A.2d 208 (Me. 2004)..............0cccccceeeeee 22
United States v. Gecas, 120 F.3d 1419
aa sa neamrancnenaonsae 21
United States v. Patane, 542 U.S. 630 (2004) ..................04. 14
United States v. Villamonte-Marquez,
A ee 3]
White v. Illinois, 502 U.S. 346 (1992) ..........s.-csossssesseeeeoee 29
Constitutional Provision
U.S. Const. amend. VI (Confrontation Clause) ........... passim
English Cases
Raleigh's Case, 2 How. St. Tr. 1 (1603)... ccceeeees 15
R. v. Brasier, | Leach 199, 168 Eng. Rep 202 (1779) ...34, 35
English Statutes
Marian Committal Statute, 2 & 3 Phil. & M.c. 10 § 2
EE ueenaneentcnenneniqiemsneautretinintaitnan 20, 21
ee sO, MF OI ccccnsstcnsdcusecnssisnenmnburnnssie 2!
Other Authorities
Am. Med. Ass‘n, Diagnostic and Treatment Guidelines
on Domestic Violence 6 (1992), available at
http: www.ama-assn.org ama /pub/upload/mm/
EE COT Ae 39
v1
Other Authorities (Cont'd) Page
American Heritage College Dictionary
oat ticaciniccinsicidilintsiibioaiidneigishtastdctuinictasbientiniiidustieeti 5,24
Susan Bandes & Jack Beermann, Lawvering Up,
I es 24
Margaret A. Berger, The Deconstitutionalization of
the Confrontation Clause: A Proposal for a
Prosecutorial Restraint Model,
76 Minn. L. Rev. 557 (1992)...........0..000. 17, 18, 19, 21
3 William Blackstone, Commentaries on the
Law of England (1768)
Arthur Browne, A Compendious View of the Civil Law
NE Pee actasstectichcancnatichtelinseshiguladilaitliiaaieitdininltiiesienieetuiseaset 17, 18
Bureau of Justice Statistics, Preventing Domestic
Violence Against Women (1986) ..............ccccceeeceeeeeeeeeeeeees 39
CartoonStock, available at
http://www.cartoonstock.com/directory/i/
interrogation.asp (last visited Jan. 30, 2006)....................25
Albert Venn Dicey, The Privy Council
UIE ahiiarshhisasbdptiecitineithainsdeiatisedhinaidiastibaienatienidienttiintimeinatadl 18, 19, 28
Mary Ann Dutton, Understanding Women’s
Responses to Domestic Violence: A Redefinition
of Battered Woman Syndrome,
BO I is CRO. CHO CrP Riprnccccenpenncicensensinnniomensanicl 42
5 William S. Holdsworth, A History of English
I a a a 16
5 William S: Holdsworth, A History of English
CE EE ne on ne ee rN 17.19
Fred E. Inbau, ef a/., Criminal Interrogation and
Coshessians (4tty ©. DOS) «.......0.<cc0seececcecccceccecesees-20..035 24
vil
Other Authorities (Cont'd) Page
Saul M. Kassin & Karlyn McNall, Police
Interrogations and Confessions: Communicating
Promises and Threats by Pragmatic Implication,
15 L. & Hum. Behav. 233 (1991).................0............ 24, 25
Andrew King-Ries, Crawford v. Washington:
The End of Victimless Prosecution?,
28 Seattle U. L. Rev. 301 (2005)...................................... 43
John H. Langbein, The Historical Origins of the
Privilege Against Self-Incrimination at Common
Law, 92 Mich. L. Rev. 1047 (1994) .......... eee 20, 21
John H. Langbein, Origins of Adversary Criminal
RSPR Sa aN ae Rac eae ee 20
John H. Langbein, Prosecuting Crime in the
AEE eRe eee TE 16, 17, 20
Murl A. Larkin, The Right of Confrontation:
What Next?, | Tex. Tech L. Rev. 67 (1969) .......0.0000.0000.. 18
Leonard W. Levy, Origins of the Fifth Amendment
PETE idhitinsnniicichinansiihienicsgibeninepipagiaitinintainiapineniidiinaeneemaselictet 19
Tom Lininger, Prosecuting Batterers after
Crawford, 91 Va. L. Rev. 747 (2005) seveceresecescoese Dy GO 43
Robert P. Mosteller, Crawford v. Washington:
Encouraging and Ensuring the Confrontation of
Witnesses, 39 U. Rich. L. Rev. S11 (2005) ......00.000.000..... 20
Daniel H. Pollitt, The Right of Confrontation:
Its History and Modern Dress.
F_un 18. 40
Records of the Vice-Admiralty Court of Rhode Island:
1716-1752 (Dorothy S.. Towle ed., 1936)... cece 17
Roget's Thesaurus 11 (Exp. ed. 1988)... 2... ee eee 6. 24
Vill
Other Authorities (Cont'd) Page
James Fitzjames Stephen, A History of the Criminal
Law of England (Burt Franklin 1964) (1883)................... 19
Carl Ubbelohde, The Vice-Admiralty Courts and
the American Revolution (1960).............cc00:cecesceeeeeeeeeereees 18
Noah Webster, An American Dictionary of the
English Language (Found. for Am. Christian
a: a aiucicicivticsintivunsinacianeiniccapbonvniiibiniiniiaisioans 14.15
Peter Westen, The Compulsory Process Clause,
I i TO cence 40
DeWayne Wickham, Film All Police Interrogations,
RR MI SN, dis Ail biccanccteisintnsnciniincnadapniuniianntieniveii 24
30 Wright & Graham, Federal Practice and Procedure:
I ee CE Pinintsitinstaiteseaniiteaasiatpcsnintisineiinienicaniias 17,19
STATEMENT OF THE CASE
This case illustrates a phenomenon all too common in
American society. A deeply conflicted battered wife,
discovered alone on her front porch, denies to a first-
responder that she has been abused and is in danger.
Ultimately, when the police, concerned for her safety,
discover the irrefutable physical traces of domestic abuse,
she tells of her beating. The State prosecutes, but the wife,
perhaps forgiving and loving, perhaps frightened, perhaps
without independent means of support, will not bear witness
at trial against her abuser, who, after all, is also her husband.
To prosecute, the State must use the wife’s oral statement at
the scene to the first-responding officer.
The prosecution of this case bears no resemblance to the
inquisitorial abuses that gave rise to the Confrontation
Clause. The conviction does not depend on prior statements
in the form of a deposition, prior hearing or trial testimony,
or affidavit. There was no inquisition, no secret examination,
no Tower of London, no interrogation, and no refusal to
bring forth witnesses demanded by the defendant. Here, all
we have are reasonable cfforts by the police, dispatched to
the scene of an emergency, to gauge any immediate danger
and respond as necessary. Unless a// hearsay is “testi-
monial,” the victim’s oral statements to police in this case
must be admissible.
|. On February 26, 2003, at 10:55 p.m., Peru Police
Department Officers Jason Mooney and Rod Richardson
responded to a dispatch concerning a domestic disturbance at
590 East Fifth Street, the home of Hershel and Amy
Hammon. J.A. 81. When the officers arrived at the
Hammon home, Officer Mooney found Amy on the front
porch of her house. /d To Officer Mooney, Amy appeared
“[thimid™ and “frightened.” J.A. 13, 81. Officer Mooney
2
asked Amy “if there was a problem and if anything was
___ going on,” and Amy answered “‘No,”” that “nothing was the
matter” and “that everything was okay.” J.A. 14, 81.
From Amy’s “somewhat frightened” demeanor, however,
Officer Mooney sensed a need to do more. See J.A. 13-15,
25, 81. At that point, Officer Mooney “didn’t feel safe
leaving the premises when we were responding to a call of a
fight due to her state of frighteness. | didn’t know if
someone had told her to tell them everything was okay and
that everything actually wasn’t.” J.A. 25. So, Officer
Mooney next asked Amy whether he could enter her house
to “check things out” and “make sure . . . that everything was
okay.” J.A. 14. Amy consented. /d.
Entering the house, Officer Mooney noticed immediately
that the Hammon living room was in disarray. J.A. 15. Ina
corer of the room lay shattered glass from what had been
the front panel of a gas heater. J.A. 16. Flames from the
heater flickered in the open. /d. There were children in the
home. J.A. 26.
Spotting Hershel in the kitchen, Officer Mooney asked
him “if everything was okay” and “[i]f he and his wife had
been in an argument.” J.A. 16, 32. Hershel admitted that he
and Amy had argued but claimed that “everything was fine
now and it never became physical.” J.A. 16. Officer
Mooney returned to Amy, who was now in the living room,
leaving Officer Richardson with Hershel in the kitchen. J.A.
17.
Officer Mooney’s trial examination provides the best
account of what happened when he left the kitchen:
3
Q Where did you proceed after that?
A | proceeded to enter the living room where Amy
was located to speak with her.
Q And what did she tell you at that time?
BY MR. SPAHR: Objection, hearsay.
BY THE COURT: I'll show it as a continuing
objection.
A 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 verbal, excuse me, 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 | 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. . .
BY MR. SPAHR: Objection as to the physical
aspects of this matter, it’s all hearsay.
Q Are you reporting what she told you?
A Yes.
KK
Q What did . . . what did she tell you tn regards to the
physicality of the altercation?
A She informed me Mr. Hammon had pushed her
onto the ground, had shoved her head into the broken
4
glass of the heater and that he had punched her in the
chest twice I believe.
***
Q Did you observe any injuries to Mrs. Hammon?
A No.
Q Did she indicate to you that she has any injuries or
pain? |
A She was, while speaking to her she was rubbing
ae
BY MR. SPAHR: Again, renew my objection to any
statements attributed to her.
BY THE COURT: We'll show it as a continuing
objection.
A While speaking to her she began rubbing her right
eyebrow, above her right eyebrow and she informed
me that that was where her head was shoved into the
glass and it was hurting her at that time.
J.A. 1S-21.
Officer Mooney also testified that Hershel tried at least
twice to enter the living room, and that each time Amy
became quiet, “almost afraid to speak.” J.A. 32. The
transcript relates no additional prompting of Amy’s oral
statements to Officer Mooney.
2. Amy completed a battery affidavit recounting what
she had already told Officer Mooney, and the officers
arrested Hershel, who was prosecuted for Class A
misdemeanor domestic battery. J.A. 2-3. Hershel was found
guilty after a bench tral. J.A. 40-41. Despite the prose-
5
cutor’s subpoena, Amy was not present at the trial. J.A. 7.
Over Hershel’s continuing hearsay objections, the trial court
admitted Officer Mooney’s recitation of Amy’s oral
disclosures at her home that February night, concluding that
they constituted “excited utterances.” J.A. 11-13. It also
admitted her battery affidavit as a “present sense
impression.” J.A. 19-20. The trial court sentenced Hershel
to one year in jail, with all but 20 days suspended. J.A. 47.
3. Hershel appealed his conviction, claiming the trial
court erred when it admitted Amy’s affidavit and Officer
Mooney’s testimony recounting Amy’s oral statements. J.A.
66-67. After briefing, but before decision, Crawford v.
Washington, 541 U.S. 36 (2004), held that out-of-court
testimonial statements are inadmissible under the Confron-
tation Clause absent declarant unavailability and a prior
opportunity for cross-examination.
The Indiana Court of Appeals upheld the trial court’s
decision to admit Officer Mooney’s testimony concerning
Amy’s oral statements (though it did not address the
admissibility of the affidavit), concluding those statements
‘were not “testimonial” under Crawford. J.A. 75-77. The
court observed that “the common denominator underlying
the Supreme Court’s discussion of what constitutes a
‘testimonial’ statement is the official and formal quality of
such a statement.” J.A. 75. Amy’s oral statement to Officer
Mooney, the court observed, “was not given in a formal
setting even remotely resembling an inquiry before King
James I's Privy Council.” J.A. 75-76
Notably, the Court of Appeals understood the colloquial
meaning of “interrogation” to be (1) “‘questioning formally
or officially,” see J.A. 76 (quoting The American Heritage
College Dictionary 711 (3d ed. 2000)), with (2) “a
connotation of an at least slightly adversarial setting” where
authorities question “thoroughly and relentlessly to verify
6
facts... .°” J.A. 76-77 (quoting Roget's Thesaurus I] 556
(Exp. ed. 1988)). Accordingly, Officer Mooney’s encounter
with Amy did not “fit within a lay conception of police
‘interrogation,’ bolstered by television, as encompassing an
‘interview’ in a room at the stationhouse” or “bear the
hallmarks of an improper ‘inquisitorial practice.” J.A. 77
(citing Crawford, 541 U.S. at 51).
4. Hershel sought discretionary review in the Indiana
Supreme Court, which granted his request. J.A. 83-84. Like
the Court of Appeals, the Indiana Supreme Court affirmed
the trial court unanimously, agreeing that Amy’s oral state-
ments to Officer Mooney qualified as excited utterances
under Indiana Rule of Evidence 803(2) and were not
“testimonial” under Crawford. J.A. 87, 104. The court also
ruled Amy’s battery affidavit inadmissible under Crawford,
but that its admission was harmless error. J.A. 104-06.
Particularly in light of the concern in Crawford with the
““TiJnvolvement of government officials in the production of
testimony with an eye toward trial,’” see J.A. 101 (quoting
Crawford, 541 U.S. at 56 n.7), the court held that “a
‘testimonial’ statement is one given or taken in significant
part for purposes of preserving it for potential future use in
legal proceedings.” J.A. 100. In this evaluation, “the motive
of the questioner, more than that of the declarant, is
determinative, but if either is principally motivated by a
desire to preserve the statement it is sufficient to render the
statement “testimonial.” /d. Under this standard, according
to the court, “responses to initial inquiries by officers
arriving at a scene are typically not testumonial.” J.A. 102.
The court explained that this “*use in legal proceedings”” —
inquiry is consistent with the “formal testimonial situations”
described ‘in Crawford, including “police -interrogations.”
J.A. 101. From examples recited in Crawford, the court
inferred that the term “police interrogation’ 1s properly
7
limited to attempts by police to pin down and preserve
statemenis rather than efforts directed to determining
whether an offense has occurred, protection of victims or
others, or apprehension of a suspect.” J.A. 102. The court
reasoned that a first-responding officer’s initial inquiries
would not likely be an “interrogation,” nor would any
responses thereto likely be motivated by a desire to preserve
evidence fora trial See id.
Applying these principles, the court held that “the
undisputed facts” of this case show that Amy’s exchange
with Officer Mooney “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.” J.A. 104. In other words,
because Officer Mooney was “responding to a reported
emergency,” he “was principally in the process of
accomplishing the preliminary tasks of securing and
assessing the scene.” /d. For her part, Amy was merely
imparting “basic facts” without suggesting that she wanted
her utterances “to be preserved or otherwise used against her
husband at trial.” /d. Accordingly, the court deemed Amy’s
Oral statement not testimonial. /d.
SUMMARY OF THE ARGUMENT
The judgment permitting use at trial of Amy Hammon’s
oral statements to Officer Mooney should be affirmed, but
for reasons other than those articulated by the decision
below. In Crawford v. Washington, 541 U.S. 36 (2004), the -
Court acknowledged that distinctions exist between
“testimonial” statements and other extrajudicial statements.
However, analyzing whether a statement is “testimonial”
based on the expectations of either the questioner or the
declarant, as suggested by the Indiana Supreme Court, has no
connection to the text or history of the Confrontation Clause.
A coherent definition of “testi-monial” statements must
8
instead respect the differences between the practices that
gave rise to the Confrontation Clause and moder police
public-safety functions, which in no way resemble those
civil-law abuses.
[. The State advocates the following general rule:
Extrajudicial statements are “testimonial” only when they
resemble the forms of testimony that were produced by the
abusive inquisitorial practices that gave rise to the
Confrontation Clause. This “resemblance test” sweeps
_ within the meaning of “testimonial” statements all of the
forms of extrajudicial statements that characterized the
inquisitorial trials of the civil-law practices, the specialty and
prerogative court practices, and Marian-statute practices.
The modem “testimonial” statements with most resemblance
to those historical abuses include affidavits, deposition
transcripts, prior-hearing and trial transcripts, grand-jury
testimony, and responses to police interrogation. See
Crawford, 541 US. at 68.
The text of the Clause supports the resemblance test.
The entire inquiry into the meaning of “testimonial”
statements arises because Crawford ruled that the key word
trom the Confrontation Clause is “witnesses,” which means
“one who bears testimony.” /d. at 51. According to early
nineteenth-century dictionaries, “testimony,” in turn, refers
to “solemn” statements, including “affirmations.” /d These
terms underscore the formalities attendant to “testimonial”
statements at the me of the Founding.
As Crawford recognized, the formal qualities of the
historical inquisitorial abuses are unmistakable. See id. at
50. Sir Walter Raleigh was convicted based on transcripts of
Lord Cobham’s coerced private examination before the Privy
Council. The inquisitorial procedures of the civil-law system
emphasized trial by secret. often coercive, interrogatories.
Trial by affidavit, deposition, and confessions coerced in
9
secret also permeated the Crown's specialty and prerogative
courts, most notoriously the Star Chamber. And under the
Marian statutes, justices of the peace interrogated witnesses
in private looking for inculpatory testimony and certified the
resulting “pretrial depositions” for trial.
Crawford also acknowledged that this history supports
treating the results of “interrogations”’—understood
colloquially—as “testimonial” statements. /d. at 53 n.4.
Both historically and colloquially, “interrogations” are
characterized by formal, coercive, tactically structured police
questioning. The broader and more technical understanding
of “interrogation” that applies under the Fifth Amendment
does not work here because there is no risk that a declarant
will unknowingly waive confrontation rights. When police
interrogate, they embark on distinctive, highly purposeful
strategies for extracting incriminating statements, much like
the justices of the peace. Questioning that accompanies
incidental or emergency police encounters with witnesses
has never been understood as “interrogation.”
The Court’s Confrontation Clause precedents are
consistent with this focus on the formalities that necessarily
accompany “testimonial” statements. Crawford | itself
deemed a statement to be testimonial because it occurred at
the stationhouse, under the protection of Miranda warnings,
and was “knowingly given in response to structured police
questioning.” /d. at 53 n.4, 65. Other cases precluding
admission of extrajudicial statements under the Clause
concerned testimony from prior trials or hearings or
custodial interrogations by police or their agents.
Il. The State also advocates the following corollary to
the “resemblance test”: “Testimonial” statements do not
include statements made in response to police actions or
questions reasonably related to an objectively reasonable
concern for the immediate safety of any persons or property.
10
This “immediate-safety” rule makes sense in light of the
historical context of the Confrontation Clause. The Founding
generation did not suffer abuses at the hands of government
agencies charged with protecting public safety. The Sixth
Amendment, rather, was targeted at trial-by-inquisition and
the practices of the justices of the peace under the Marian
statutes. When police are reasonably asking questions in
order to protect persons or property, their actions in no way
resemble the historical abuses leading to trial by secret depo-
sition.
It is important to bear in mind that the immediate-safety
rule may apply even where a particular attack has subsided.
In such circumstances the police often will need to learn
additional information to understand whether individuals
need medical care and whether an immediate safcty threat
remains. Particularly in domestic-violence cases, the
immediate safety of the victim may remain in jeopardy even
after an attack subsides, and the police will need to know
what happened to understand whether to offer shelter or
other assistance.
Ill. The text and history that support the resemblance
and immediate-safety tests provide no grounds for Peti-
tioner’s argument that “testimonial” hearsay is that which
“accuses” or that which a reasonable declarant should
reasonably anticipate may be used in an investigation or trial.
Petitioner candidly acknowledges that, to rule his way,
the Court must add “accusations to known police officers” to
the list of “testimonial” statements identified in Crawford,
but he provides no reasons why the Court should do so. See
Pet. Br. 20. In fact, Petitioner disclaims any connection
between his “accusation” test and the history of the
Controntation Clause. He argues instead for imquiring
whether a statement “performs the function of tesumony,”
i.g., Whether it “transmits information for use in investigation
MH
or prosecution of crime.” Pet. Br. 12-13. This test—
unsupported as it is by constitutional text and history—
would sweep within the ambit of “testimonial” statements
nearly a// hearsay, an outcome that Crawford has already
rejected. Crawford, 541 U.S. at 51-52.
As for Petitioner’s apparently alternative “reasonable-
anticipation” argument, it too bears no relationship to the
history and text of the Confrontation Clause. Petitioner
attempts to obviate this problem by recasting the Confron-
tation Clause as simply an American version of an absolute
ancient tradition rather than a response to particular
historical abuses. But such a predicate is not only
historically agnostic, it also would seem to negate any limit
to the notion of “testimenial statements.” Ultimately,
Petitioner's entire argument depends on_ overriding
Crawford’s holding that the Con‘rontation Clause is
concerned with a “specific type” of hearsay. /d. at 51.
IV. The circumstances surrounding domestic-violence
cases such as this are especially distinguishable from the
civil-law inquisitorial abuses. Unlike the practices under the
Marian statutes and in the prerogative and specialty courts,
where the Crown prevented cross-examination of witnesses,
in domestic-violence cases it is typically the defendants
themselves who are responsible for the victim’s absence
from trial. The victim may refuse to testify because of overt
threats from the defendant, or simply because she wishes to
continue a relationship with the defendant. Fither way. the
defendant would be able to cross-examine the victim simply
by calling her to the stand. Accordingly, regardless of how
the Court defines “testimonial statement,” prosecutors should
be able to use victims’ crime-scene statements to carry their
burdens as long as they fulfill their compulsory-process
obligations to secure witnesses called by the defense.
12
Furthermore, if the Court concludes—as it should not—
that the subjective motivations of declarants do matter, it
should bear in mind statistics showing that victims of
domestic violence often initially deny their abuse, later
recant their stories of abuse, and ultimately refuse to testify
at trial. This data suggests that victims of domestic violence
who overcome the odds and actually tell the police about
their plight are typically motivated by a need for safety, not a
desire for justice.
V. Under the resemblance test and its immediate-safety
corollary, Amy Hammon’s oral statements to Officer
Mooney were not “testimonial,” even though her affidavit
was. When Amy Hammon told Officer Mooney that her
husband had beaten her, she was in her living room, not ii: a
formal or coercive setting. The police were there not to
examine witnesses in search of evidence against a previously
charged suspect, but to provide emergency assistance. Amy
Hammon initially denied there was a problem, but she was
obviously frightened and Officer Mooncy took more action
because he was concerned for her safety. The transcript does
not show any further questioning, but even if some minimal
questioning did occur, there is no evidence of any sort of
“interrogation.” Furthermore, when Officer Mooney ap-
proached Amy Hammon for the second time, he had
evidence indicating some type of immediate threat, but he
needed to learn more to confirm and address that threat.
Amy Hammon’s oral statements were therefore not
“testimonial.”
ARGUMENT
1. “Testimonial” Statements Arise from Inquisitorial
Practices, Not Emergency Assistance
In Crawford v. Washington, 541 U.S. 36, 42-43, 51
(2004), the Court ruled that, while all “testimony” ts subject
13
to the right to confront the declarant under the Sixth
Amendment, nor all extrajudicial statements are “testi-
monial.” Crawford disclaimed creation of a comprehensive
definition of “testimonial,” but the Court was clear that
limits do exist. “The constitutional text, like the history
underlying the common-law right of confrontation thus
reflects an especially acute concern with a specific type of
out-of-court statement.” Crawford, 541 U.S. at Sl.
“Testimonial” is defined by the Constitution’s text and, at
least equally significant, by reference to the historical abuses
that prompted adoption of the Confrontation Clause.
Consonant with these holdings, the State proposes the
following rule: A statement is “testimonial” only when it
resembles the forms of testimony that were produced by the
abusive inquisitorial practices that gave rise to the
Confrontation Clause. Under this rule, the term “testimonial”
would apply, as stated in Crawford, to affidavits as well as
“to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” /d. at
68; see also id. at 53 n.4 (stating that “interrogation” is
meant in its “colloquial” rather than “technical legal” sense).
Equally important, however, 1s the following corollary of
this “resemblance” test: “Testimonial” statements do not
include statements in response to actions or questions
reasonably related to an objectively reasonable cencern for
the immediate safety of any persons or property. Excluding
such statements from being “testimonial” statements makes
sense because the Confrontation Clause was not crafted in
response to any historical abuses resembling modern-day
public-safety functions of the police.
The “resemblance test” and its “immediate-safety™
corollary protect against the “modern practices with closest
kinship to the abuses at which the Confrontation Clause was
directed.” /d. at 68. They also ensure the closest possible fit
i4 i:
between “modern practices” and the historical practices
targeted by the Framers before a statement will be deemed
“testrmonial.” See id.; cf. United States v. Patane 542 U.S.
630, 640-41 (2004) (plurality opinion). These principled,
historically justified rules for what is “testimonial” exclude
Amy Hammon’s oral statements to Officer Mooney in her
home shortly after he responded to an emergency dispatch.
Therefore, the statements can be admitted without offending
the Sixth Amendment.
A. The text of the Confrontation Clause limits which
statements are “testimonial”
Crawford began its analysis with the plain text of the
Confrontation Clause, which provides the right of a
defendant to be “confronted with the witnesses against him.”
U.S. Const. amend. VI. From this text, the Court observed
that it applies only to “witnesses,” meaning those who “bear
testimony.” See Crawford, 541 U.S. at 51. Quoting
Webster’s early nineteenth-century understanding, the Court
understood that “testimony” “is typically ‘{a] solemn
declaration or affirmation made for the purpose of estab-
lishing or proving some fact.”” /d. at 51 (quoting 2 Noah
Webster, 4n American Dictionary of the English Language
9} (Found. for Am. Christian Educ. 1989) (1828)) (emphasis
added). Thus, “giving testimony” and “bearing witness”
suggest solemn, formal settings and the statements derived
therefrom.
Webster, it bears observing,-also defined “solemn” using
several markers of formality, such as “marked with pomp
and sanctity; attended with religious rites” and “impressing
or adapted to impress seriousness.” 2 Webster, supra, at 75.
Webster understood that “declaration,” see | Webster, supra,
at 56, meant a statement of fact in any context, but that
“affirmation” suggested something more. implying at the
very least a “[c]onfirmation” or “ratification” of an assertion
~
15
by another. See id. at 5. Then, as now, “affirmation” also
bore -a highly formal and direct connection to legal
proceedings, as in “[a] solemn declaration made under the
penalties of perjury, by persons who conscientiously décline
taking an oath; which affirmation is in law equivalent to
testimony given under oath.” /d.
Thus, in relying on Webster, Crawford effectively linked
the textual use of “witness,” meaning “one who gives
testimony,” to statements given in formal settings that
impress the seriousness of the statement, often under oath or
with other religious rites, and perhaps confirming or ratifying
the suggestion of another. See Crawford, 541 U.S. at 51.
B. The Framers sought to prevent the historical
abuse of conducting trials by using statements
procured through formal extrajudicial exami-
nations with no opportunity for cross-examination
Crawford's historical overview shows that the right of
confrontation developed in response to specific procedural
abuses arising from trial by affidavits and depositions. It
also confirms that the Confrontation Clause does not codify
the law of hearsay as it existed at the time at the founding.
Rather, the Clause responds to the Founder’s reaction to
systemic procedural abuses.
The most frequently cited historical predicate for the
Confrontation Clause, of course, is the 1603 trial of Sir
Walter Raleigh, who, tried by a written record of coerced
formal Privy Council! examinations of Lord Cobham and
others, demanded that the court “*[cJall my accuser before
my face,” but was refused. Crawford, 541 U.S. at 44
(quoting Raleigh's Case, 2 How. St. Tr. 1, 15-16 (1603)).
Even beyond Raleigh, however. each of Crawford's
historical vignettes shows that the abuses giving rise to the
Confrontation Clause involved formal, deliberate, carefully
16
crafted processes for producing witness statements, not only
with an eye toward trial, but also with an eye toward
excluding the declarant from that trial. See Crawford, 541
U.S. at 43-47.
It is not necessary to recount Crawford's entire historical
overview, but some additional details concerning the civil-
law practices, the English Crown’s specialty and prerogative
courts, and practices under the Marian statutes underscore
the limited contours of “testimonial!” statements as originally
understood.
1. The continental civil-law practices
As explained in Crawford, the continental civil-law
practices for admitting testimony at trial were exactly what
the Framers sought to avoid with the Confrontation Clause.
See Crawford, 541 U.S. at 50. The civil-law system was
based on inquisition rather than accusation and permitted
judges or their designated representatives to undertake
examinations of witnesses and to read the resulting testi-
mony to the trial court. 5 William S. Holdsworth, A History
of English Law 170-75 (1927). In this “inguisitionsprozess,”
there was no opportunity for a criminal defendant to cross-
examine the witness at the pretrial examination or at the trial.
See John H. Langbein, Prosecuting Crime in the
Renaissance 233-34 (1974); see also Holdsworth, supra, at
170-75.
This civil-law history further establishes a highly formal
set of procedures for producing testimony.
In the inquisitorial system usec on the Continent,
accusation and prosecution rested with the court:
there was no definite accuser and the charges were
neither formally specified nor revealed to the
accused, The inquisitorial system’s emphasis on
17
secrecy continued throughout the proceedings. The
names of witnesses against the accused were noi
revealed; the accused was tried by secret
interrogatories, often obtained through the use of
torture, and even the final sentence was not
publicized.
Margaret A. Berger, The Deconstitutionalization of the
“onfrontation Clause: A Proposal for a Prosecutorial Re-
straint Model, 76 Minn. L. Rev. 557, 569 n.50 (1992) (citing
5 Holdsworth, A History of English Law 170-75 (2d ed.
1937)).
2. Pre-Marian specialty and prerogative courts
The separate development of the English common law
and its right of confrontation notwithstanding, specialty
courts in England used deposition evidence in procedures
more akin te those developed according to the civil-law
model.
a. By the time of Richard II, for example, the use of
deposition testimony in the trials in the Court of Admiralty
was regular. See 30 Wright & Graham, Federal Practice
and Procedure: Evidence § 6342, at 202-23 (1997): see
also, Langbein, Prosecuting Crime, supra, at 81. In vice-
admiralty procedure, the cxamination process was quite
formal, using interrogations or examinations in_ private
before the judge. See Records of the Vice-Admiralty Court
of Rhode Island 1716-1752 93 (Dorothy S. Towle ed., 1936).
An early nineteenth-century treatise described the procedure
of the admiralty courts as follows: “The witnesses are to be
secretly and separately examined, not in the presence of the
partics or other witnesses. Their depositions, after being
read over to them article by article, and then asked whether
there be anything which they wish to alter or amend, are then
18
to be signed by the witness... .” Arthur Browne, A
Compendious View of the Civil Law 421 (2d ed. 1802).
As noted in Crawford, admiralty practice has special
significance for the Confrontation Clause, for in 1765 the
Sugar Act and Stamp Act further extended the reach of
admiralty jurisdiction over the colonists. See Crawford, 541
U.S. at 47-48; see also Berger, 76 Minn. L. Rev. at 579;
Murl A. Larkin, The Right of Confrontation: What Next?, \
Tex. Tech L. Rev. 67, 71 (1969); Daniel H. Pollitt, The Right
of Confrontation: Its History and Modern Dress, 8 J. Pub. L.
381, 396 (1959). The Stamp Act was repealed in 1766
following public outcry and numerous riots. See Carl
Ubbelohde, The Vice-Admiralty Courts and the American
Revoluation 3 (1960). However, just a year later, the
passage of the Townshend Acts continued colonial
subjugation to the admiralty courts. See id. at 97-100.
Furthermore, directly after the Stamp Act was repealed,
Parliament passed a resolution that all traitors would be
taken to England to be tried, thereby ensuring that all
testimony would be given by deposition rather than in open
court. See Larkin, | Tex. Tech L. Rev. at 71-72.
In sum, the admiralty process, which perhaps most
directly provided the rationale for the Confrontation Clause,
employed trial by secret, formal examinations of witnesses.
b. Meanwhile, the Privy Council, a prerogative court
that also reached back to Richard Il, began to act as a
pseudo-court to actualize the whims of the monarch by the
time of the Tudors and Stuarts. See Albert Venn Dicey, The
Privy Council 25, 68-75, 94-105, 112-14 (1887). Sum-
monses to appear before the Council “were made
instruments of extortion” and were handed down in instances
where the public courts were unable to reach a guilty verdict.
See id. at 68-69, 71, 113-14.
19
The Privy Council reached its juridical nadir during the
late sixteenth century with the development of the Court of
the Star Chamber, which was often used to try elite offenders
who common-law juries might be afraid to convict. See
Dicey, supra, at 94-105; see also 30 Wright & Graham:
Federal Practice and Procedure: Evidence § 6342, at 219-20
(1997); James Fitzjames Stephen, A History of the Criminal
Law of England 169 (Burt Franklin 1964) (1883). The Star
Chamber “could dispense with ordinary procedure in
extraordinary cases, using interrogations designed to trap the
accused into a confession.” See Berger, 76 Minn. L. Rev. at
569-70 (citing Leonard W. Levy, Origins of the Fifth
Amendment 182 (1968)).
In Star Chamber proceedings, the accused could be
committed to prison indefinitely pending trial. He
was required to swear the oath ex officio that he
would answer all questions truthfully, both orally and
in writing—even though he was ordinarily not
informed of the charges against him, nor allowed
counsel. After swearing the oath, and without coun-
sel, the defendant was confronted with interrogatories
based on information furnished through the secret
cxaminations.
Id. at 570 n.SI (citing Levy, supra, at 182-84). Any
inconsistencies between the accused’s answers and the
interrogatories were used, sometimes aided by torture, to
force confessions. See id. at 570 n.51 (citing Holdsworth, 2d
ed., supra, at 178-88); see also Stephen, supra, at 176
(noting that the Star Chamber “proceeded by bill and answer,
~and administered interrogations to the accused party, whom
they examined under oath.”); Dicey. supra, at 114-15
(observing that the Star Chamber was the only court that
employed torture).
20
In the prerogative courts, “testimonial” statements were
highly formal, coerced, and taken in secret with no intention
that the witness would ever be produced at trial.
3. Practices under the Marian Bail and Commit-
tal Statutes
Parliament enacted the Marian Bail and Committal
Statutes of 1555 in order to facilitate the production of
evidence and impose more regularity into the process of
criminal prosecutions. See Langbein, Prosecuting Crime,
supra, at 24, 34-35. The Manan Committal Statute required
that the justices of the peace “take examination of said
Prisoner, and information of those that bring him, of the fact
and circumstances [of the crime], and the same, or as much
thereof as shall be material to prove the felony, shall be put
in writing” following which “said examination the said
Justices shall certify at the next general Gaol Deliver to be
holden within the limits of their Commission.” 2 & 3 Phil.
& M. c. 10 (1555). These certified documents became
known as “pretrial depositions.” John H. Langbein, Origins
of Adversarv Criminal Trial 41 (2003).
More specifically, the justice-of-the-pcace manuals
instructed that the witness be interrogated under oath
(although some justices took sworn testimony while others
did not). See, ag., Robert P. Mosteller, Crawford v.
Washington: Encouraging and Ensuring the Confrontation
of Witnesses, 39 U. Rich. L. Rev. 51.1, 555-59 (2005) (noting
that the witness was present before the justice of the peace in
“a modestly formal setting, likely the [justice's] ‘parlor.’”’).
The justices were only required to record that portion of the
witness” statement that proved the guilt of the accused. See
John H. Langbein. The Historical Origins of the Privilege
Against Self-Incrimination at Common Law, 92 Mich. L.
Rev. 1047, 1060-61 (1994). Those portions (and only those
portions) were then presented at the accused's tral. See id.
21
The justices of the peace could also bind the witness over
for the accused’s trial by requiring a bond. See id.; see also
2 & 3 Phil. & M.c. 10 § 2 (1555). The government would
often introduce the certified transcript of the examination.
See Langbein, 92 Mich. L. Rev. at 1060 (“The emphasis on
testimony against the accused was deliberate. The [justice of
the peace] was not . . . meant to gather evidence impartially.
The Marian system was designed to collect only prosecution
evidence.”); see also United States v. Gecas, 120 F.3d 1419,
1442-45 (11th Cir. 1997).
Over the next century, courts increasingly used certified
Marian preliminary examinations at trial, and criminal
proceedings assumed a more inquisitorial quality. See
Berger, 76 Minn. L. Rev. at 569. In fact, in 1848, Parliament
enacted a statute that codified the right to be present during
witness examinations and depositions, but it protected only
individuals who had a/ready been charged with indictable
crimes. 1] & 12 Vict., c. 42, § XVII (1848). The Act thus
presupposed that the abuses to be addressed occurred
through formal procedure, not happenstance encounters. See
id.
History shows that the abuses that worried the Framers
arose from statements given in deliberate, structured,
solemn, and highly coercive settings. See also 3 William
Blackstone, Commentaries on the Law of England 373-74
(1768) (recognizing that jury-trial and confrontation rights
arose in response to civil-law abuses, such as trial by
deposition). Through the Confrontation Clause, the Framers
meant to enshrine rights against trial by these well-defined
inquisitorial practices. As a matter of history, statements
cannot be “testimonial” if they do not arise from
circumstances resembling these.
22
C. Historically and _ colloquially, “interrogation”
means coercive questioning that is easily recogniz-
able as such
Based on the history of the Confrontation Clause,
Crawford swept within the definition of “testimonial” any
“[s]tatements taken by police officers in the course of
interrogations.” Crawford, 541 U.S. at 52. Statements given
during “interrogations” are “testimonial” because “[p]olice
interrogations bear a striking resemblance to examinations
by justices of the peace in England.” /d. at 52. Those
historical examinations were characterized at the very least
by formal process, the singular purpose of gencrating
inculpatory and unimpeachable evidence, and by coercion
and torture. See Part [.B, supra.
The Court did not define “interrogation” precisely but
noted that it was using “‘interrogation’ in its colloquial,
rather than any technical legal, sense” and observed that
Sylvia Crawford's statement, given while she was in custody
and a suspect herself, qualified as “testimonial” because it
was “knowingly given in response to structured police
questioning.” See Crawford, 541 U.S. at 53 n.4. Under both
historical and contemporary understandings, it 1s exactly
such “structure” in a coercive environment that differentiates
“interrogations” from other interactions with the police. See
also State v. Barnes, 854 A.2d 208, 211 (Me. 2004)
(deeming statements by a victim upon running into a police
station not to be testimonial because “she was not responding
to tactically structured police questioning as mm Crawford,
but was instead seeking safety and aid”) (emphasis added).
1. A “colloquial” under-standing of “interrogation”
implies purposeful, considered, and even coercive cfforts to
draw from a witness information that would be helpful to an
ongoing investigation. It is highly instructive that, when
23
disclaiming a “technical legal” meaning of interrogation,
Crawford contrasted Rhode Island v. Innis, 446 U.S. 291
(1980), which held that “inter-rogation” for Miranda
purposes includes both “express questioning” and “any
words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response.” /d. at 300-01; see also Crawford, 541 U.S. at 53
n.4.
Innis ‘adopted this particularly broad notion of
“interrogation” because “the Miranda safeguards were
designed to vest a suspect in custody with an added measure
of protection against coercive police practices.” ZI/nnis, 446
U.S. at 301 (emphasis added). That is, broadly defining
“interrogation” for Miranda warnings provides greater
protection against unwitting- watvers of Fifth Amendment
rights. There is no comparable need to protect against
unwitting waivers in the Confrontation Clause context and,
therefore, a similarly expansive application of “inter-
rogation” is not justified here.
2. It is also relatively clear that when police refer to
“interrogation,” they mean questioning that is tactical,
structured, purposeful and manipulative, if not coercive. Just
to scratch the surface, the Reid Technique, one of the leading
police-interrogation strategies, distinguishes —_ between
“interviews” and “interrogations,” noting that “interviews”
may take place in “a variety of environments,” including “a
person’s home or office, in the back seat of a squad car, or
on a street corner.” Fred E. Inbau, ef al, Criminal
Interrogation and Confessions 6 (4th ed. 2005). On the
contrary, “Interrogations” should be conducted by specially
trained personnel and not the “arresung officer” who may
lack special training. See-id. at 65. Moreover, the
interrogation should occur in a sound-proofed room, with the
interrogator sitting near and maintaining eve contact with the
24
witness. See id. at 57-64. By the same token, when scholar
Saul Kassin trains his critical eye on abusive police
interrogations, rather than concentrating on informal or
highly fluid contacts between police and citizens, he
conducts experiments to test the effects of tactics like those
used in the Reid Technique. See, e.g., Saul M. Kassin &
Karlyn MeNall, Police Interrogations and Confessions:
Communicating Promises and Threats by Pragmatic
Implication, 15 L. & Hum. Behav. 233, 234-35 (1991).
Policy debates concerning interrogations also tend to
focus on what happens in highly structured environments.
For example, a recent movement to require additional
safeguards against police coercion has focused on
videotaping interrogations. See, e.g., DeWayne Wickham,
Film All Police Interrogations, USA Today, Sep. 24, 2002,
at 13A. This approach obviously assumes _ that
“interrogations occur in a controlled environment rather
than through incidental or emergency encounters.
The Indiana Court of Appeals observed below that
“interrogation,” colloquially understood, does not include a//
police questioning, but only that which occurs “*formally or
officially’” or at least “‘thoroughly and relentlessly.”” J.A.
76-77 (quoting The American Heritage College Dictionary
711 (2000); Roget's Thesaurus 11 556 (Exp. ed. 1988)). The
Court of Appeals even noted how the “lay” understanding of
“interrogation” as stationhouse drama _ derives from
television shows. J.A. 77. And, indeed, the television drama
NYPD Blue, which “tends to treat the interrogation as the
dramatic focus” portrays “interrogations” as carefully staged,
merciless jailhouse psychological manipulation, sometimes
accompanied by physical violence. Susan Bandes & Jack
Beermann, Lawvering Up, 2 Green Bag 2d 5, 6-10 (1998).
Even editorial cartoonists frequently target large audiences
with caricatures of “good-cop, bad-cop” interrogation rou-
tines featuring suspects seated in uncomfortable chairs with
25
bare light bulbs shining in their faces. See CartoonStock
available at http://www. cartoonstock.com/directory/1 inter-
rogation.asp (last visited Jan. 30, 2006).
The point is that “interrogation” in its “colloquial sense” |
is closely associated with both police custody and easily
discernible, yet often highly sophisticated and manipulative,
police tactics and techniques. Such interrogation may foster
more effective investigation, but it may also enable the
abuses targeted by lawyers and scholars and portrayed by the
media. See Kassin & McNall, 15 L. & Hum. Behav. at 234-
35. Such widespread attention to this type of interrogation
surely is not a fluke. It no doubt relates back to the historical
fears and abuses that underlie the Fifth and Sixth
Amendments-—sophisticated and coercive police production
of evidence that occurs in a setting specifically designed for
covert activity and for overcoming witness independence.
Id.
Accordingly, while technical police custody may not
always be part of an “interrogation,” there must be some
measure of objectively discernible, coercive, tactically
structured police questioning. Otherwise, the Court will risk
extending Confrontation Clause protections to a whole range
of incidental or emergency police contacts with citizens that
lie well beyond the abuses the Framers sought to prevent.
As the Indiana Court of Appeals ruled below, “[w]hatever
else police ‘interrogation’ might be,” it is not “preliminary
investigatory questions asked at the scene of a crime shortly
after it has occurred.” J.A. 77.
D. The Court’s Confrontation Clause precedents
confirm that “testimonial” statements are derived
from formal inquisitorial practices
Decisions by this Court excluding evidence based on
Confrontation Clause objections support the notion that
26
“testimonial” statements are statements given in
circumstances that parallel the inquisitorial practices that the
Framers deemed offensive. In Crawford itself, the “testi-
monial” statement was “knowingly given in response to
structured police questioning.” Crawford, 541 U.S. at 53
n.4. Specifically, Sylvia Crawford’s statement occurred at
the stationhouse several hours after the alleged crime, after
she had been read her Miranda rights, and “[i]n response to
often leading questions from police detectives.” /d. at 65.
The Court expressly recognized that these circumstances
modeled the very civil-law trial-by-inquisition that. the
Confrontation Clause was intended to prevent. /d. at 52.
Crawford also catalogued several cases where statements
falling within the Clause’s protections were actual prior trial
or preliminary hearing testimony, both of which obviously
bear hallmarks of the formal statements the Framers sought
to exclude from trial absent witness unavailability and a prior
opportunity for cross-examination. See Crawford, 541 U.S.
at S7 (citing Mancusi v. Stubbs, 408 U.S. 204, 213-16
(1972); California v. Green, 399 U.S. 149, 165-68 (1970);
Barber v. Page, 390 U.S. 719, 722-25 (1968); Roberts v.
Russell, 392 U.S. 293, 294-95 (1968); Douglas v. Alabama,
380 U.S. 415, 418-20 (1965); Pointer v. Texas, 380 U.S.
400, 406-08 (1965); Motes v. United States, 178 U.S. 458,
470-71 (1900): Kirby v. United States. 174 U.S. 47, 55-61
(1899); Mattox v. United States, 156 U.S. 237 (1895)).
In addition, several cases have forbidden the admission .
of statements resulting from custodial police interrogations.
See, e¢.g., Lilly v. Virginia, 527 US. 116, 121 (1999)
(excluding statements where the police questioned the
accomplice multiple times and told him that unless he “broke
‘family ties’” he might be dragged into “a life sentence”):
see also Cruz v. New York, 481 U.S. 186 (1987): Lee v.
lilindis, 476 U.S. 530 (1986); Parker v. Randolph, 442 US.
62 (1979): Bruton v. United States, 391 U.S. 123 (1968) (all
27
barring use of a confession resulting from custodial inter-
rogation against a codefendant). These are classic examples
‘ of tactically structured, formal police questioning, i.e.,
“interrogation.”
Also illustrative are /daho v. Wright, 497 U.S. 805
(1990), and Dutton v. Evans, 400 U.S. 74, 87 (1970). In
Wright, the Court rejected using statements of a child in
police custody responding to a physician’s questions about
alleged sexual abuse. See Wright, 497 U.S. at 809, 826-27.
The physician was essentially an agent of the police engaged
in a custodial interrogation. In Dutton, the Court approved
using a prisoner’s jailhouse accusatory statement to another
prisoner where there was no “confession made in the
coercive atmosphere of official interrogation” and no “use by
the prosecution of a paper transcript.” See Dutton, 400 U.S.
at 87 (plurality opinion). These cases underscore the need, at
the very least, for an interrogation or a transcribed statement
for an utterance to be “testimonial.”
Il. Statements to Officers Whose Actions or Questions
Reasonably Relate to the Immediate Safety of Persons
or Property Are Not “Testimonial”
The resemblance test, as noted above, gives rise to the
corollary proposition that when police actions or questions
reasonably relate to an objectively reasonable concern for the
immediate safety of a victim, an officer, the public. or
property, any statements resulting therefrom are not
“testimonial.” This “immediate-safety” rule, like the resem-
blance test itself. is consistent with Confrontation Clause
history and practical to apply.
|. The immediate-safety rule follows from Contron-
tation Clause history. The Framers were simply not
concerned about excluding statements to emergency
responders from tral. As the modern police force did not
28
exist prior to the nineteenth century, there was no occasion
for the Framers to consider whether the dangers inherent in
trials-by-affidavit arose in circumstances where immediate
public safety was at issue. The Privy Council’s investigators
were not dispatched to interrupt crimes in progress, catch
fleeing suspects, or calm domestic disputes; they were
commanded to produce evidence to convict particular
defendants. See Dicey, supra, at 102-03. They were not
trained to defuse highly volatile situations or to secure
disaster scenes. Instead, they were trained to interview
witnesses in very deliberate, coercive, and manipulative
ways. See id. at 103-05.
By contrast, modern police often must work amidst chaos
and great ongoing danger to themselves and to others. In
such circumstances, they are far more concerned about
protecting the innocent (including themselves) than
prosecuting the guilty. Where police are reasonably acting
to prevent immediate harm, they are unlikely to be engaged
in the sort of coercive and manipulative evidence-producing
tactics that prompted the Confrontation Clause. When police
ask questions geared toward procuring information that can
help them uncover and address immediate threats, any
incriminating statements they hear will mercly be incidental
and not crafted or manipulated to fit a predetermined
narrative. Where an officer can reasonably perceive a risk of
immediate harm, accurate information from others 1s critical
to an effective response.
2. The Court's prior Confrontation Clause holdings do
not undermine the immediate-safety rule. In Wright, the
Court required a child rape victim's statements to a physician
to be excluded, but those statements were given in response
to questions posed atier the child was in protective police
custody and more than a day after the sexual assault being
investigated. See Wright. 497 U.S. at 809-10. Accordingly,
29
the questions could not reasonably be justified by a concern
for the child's immediate safety.
Crawford described White v. Illinois, 502 U.S. 346, 349-
51 (1992), which approved trial use of a “spontaneous
declaration” to a police officer, as “arguably in tension with
the rule requiring a prior opportunity for cross-examination
when the proferred statement is testimonial.” Crawford, 541
U.S. at 58 n.8. Hearsay-exception analysis aside, however,
whether the child’s statement to police in While was
“testimonial” depends on several facts. The officer's conver-
sation with the child, which lasted more than three hours
before the child was transported to the hospital, occurred
afier the assailant had fled the scene and after the child’s
mother was present and aware of the attack. White, 502 U.S.
at 349-50. These facts suggest no reasonable immediate-
safety concerns. Yet other facts, such as whether any rela-
tionship existed between the child and the assailant and
whether any householders were involved in the assault, could
influence a reasonable officer’s immediate actions. Thus,
affirming here would not necessarily dictate any particular
result in White.
3. That is not to say that the immediate-safety rule is
necessarily inapplicable simply because a particular attack
has subsided. First, officers or other first-responders may
not be able to discern without asking questions whether an
attack or other incident has actually subsided, or if it has,
what medical attention or other public-safety precautions
may yet be necessary. Second, just because a particular
assault may have concluded, that does not necessarily mean
that the immediate safety of the victims, even those who do
not need medical attention, is secure.
Consider, for example, Stancil v. United States, 866 A.2d
799 (D.C. 2005). reh'g granted and judgment vacated, 878
A.2d 1186 (D.C. 2005). which drew an unnecessary,
30
arbitrary line for defining “testimonial” even as it ruled that
Statements while police are “securing the scene” are not
testimonial. See id. 813-14. The court divided an emergency
domestic-violence call into two stages divided by the
moment when police “first secured the scene.” See id. at
814. Statements affer that moment were “testimonial.” See
id. at 814-15. This rule properly acknowledges that
Statements concerning immediate safety are not “testi-
monial,” but as a purely temporal rule, it misses the mark.
Even when a scene is “secure,” police often must learn more
to protect persons or property. They may need to know
whether other assailants or other weapons still pose a danger.
Or, perhaps most important for domestic-violence cases, they
may need to learn what happened so they can, if necessary,
provide assistance to prevent further attacks. An officer who
arrives at a domestic-battery scene and then departs without
either the assailant or the victim may leave the victim at
imminent risk of suffering another beating. a
4. One of the benefits of the immediate-safety test is
that it does not require courts to inquire into the actual state
of mind of either the declarant or the police officer. Such a
subjective approach, to be sure, was embraced by the Indiana
Supreme Court in the decision below. See J.A. 100-03. But
as the Petitioner has ably demonstrated, subjective tests of
any stripe pose great risks of inconsistent or unfair treatment.
See Pet. Br. 18-21.
If the “primary purposes” of government officials were
paramount, defendants who are similarly situated with
respect to objectively verifiable facts may well receive
different treatment based not on their own states of mind, but
on states of mind of those they cannot control the officers
who investigated their cases. The Court has sought to avoid
such “incongruous result{s]” in other contexts where, as
here, no reason exists to incorporate officers’ subjective
motivations into constitutional analysis. See, ¢.g., United
31
States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983)
(holding that officers’ drug-detection motive did not
invalidate an otherwise proper boat seizure conducted
pursuant to a suspicionless maritime document-inspection
program). The immediate-safety test relieves any burden to
analyze the subjective motivations of declarants or officers.
* * * *
As the Indiana Supreme Court recognized, it is highly
likely that initial crime-scene declarations will relate to
immediate-safety concerns, even if a particular crime is over
or if the threat has, purely as a matter of fact, passed. See
J.A. 93, 95. When arriving on the scene, police and other
responders quite reasonably do not know whether a danger
still exists, and their first job is to secure and assess the
scene. See J.A. 104. At the same time, however, not all
statements to first-responders necessarily demand the same
treatment. Where an officer’s questions go beyond what is
reasonably related to immediate safety and vegin to look
more like a witness interrogation, the immediate-safety rule
will not apply, regardless of the officer’s state of mind. Like
the resemblance rule itself, the immediate-safety rule is
sound as a matter of constitutional text, history, and policy.
Hl. Neither a Statement’s Content Nor a Declarant’s
Expectations Has Any Connection to Defining
“Testimonial” under the Confrontation Clause
Petitioner offers two tests for determining whether a
statement is “testimonial.” First, according to Petitioner, “[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.” Pet. Br. 10. Second, Petitioner posits that “the
question should be whether a reasonabie person in the
posiion of the declarant would anticipate use of the
Statement in investigation or prosecution of a crime.” Pet.
Br. 18 (emphasis original). The relationship between these
two tests is not entirely clear. What is clear, however, is that
neither has anything to do with the text or history of the
Confrontation Clause nor with the rationale underlying
Crawford.
A. Whether a statement “accuses” has no rela-
tionship to whether it is “testimonial”
Petitioner candidly acknowledges that Crawford in no
way mentioned or implicitly included accusations to police
officers as such among various types of statements that are
“testimonial.” In fact, Petitioner blithely offers that “‘[i]n this
case, the Court merely needs to add ‘accusations made to
known police officers’ to that list.” Pet. Br. 20.
However, Petitioner provides no textual or historical
support for this suggestion. In fact, Petitioner essentially
disclaims any argument from history, stating that, just
because the Confrontation Clause was a response to
particular abuses related to the “‘civil-law mode of criminal
procedure’” that “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.” Pet. Br. 11 n.7 (quoting Crawford, 541 U.S. at 50).
Translation: Petitioner’s theory of which statements are
“testimonial” has no relationship to the historical abuses the
Framers sought to prevent.
Nor does Petitioner’s argument have any footing in
constitutional text. Notwithstanding any shorthand refer-
ences to “accusers” in other cases, the Confrontation Clause
does not protect the mght to confront “accusers,” it protects
the right to confront “witnesses.” See U.S. Const. amend.
VI. In fact, the Clause’s use of the term “witnesses” ts the
only reason to embark on a search for “testimonial”
33
statements covered by the Clause. See Crawford, 541 U.S.
at 51-52.
In this vein, Crawford observed that the Framers were
principally concerned not about the content of any particular
statements, but about the “/i/nvo/vement of government
officers in the production of testimony with an eye toward
trial.” Crawford, 541 U.S. at 56 n.7 (emphasis added).
Accordingly, whether a statement includes an “accusation” is
irrelevant. The Framers presumably would have objected to
using any coerced affidavit at trial without benefit of
confrontation, even if it did not directly accuse the
defendant. The Court retreated from Ohio v. Roberts, 448
U.S. 56 (1980), precisely to avoid rendering the
Confrontation Clause “powerless to prevent even the most
flagrant inquisitorial practices.” Crawford, 54\ U.S. at 51
(emphasis added).
Petitioner attempts to compensate for these textual and
historical deficiencies by abnegating the very notion that the
Confrontation Clause responds to a particular history,
posing without support that the Clause requires exclusion
of a variety of extrajudicial statements that have no relation
to historical abuses. See Pet. Br. 12. In addition, Petitioner
worries that adherence to the Clause’s historical meaning
would simply prompt avoidance of the “characteristics of
trial testimony.” /d. It is not entirely clear what this means,
but if it is meant to suggest that adherence to history would
simply prompt authoritics and declarants to avoid civil-law
inquisitorial practices, the State confesses that such
avoidance should, indeed, be the principal result of enforcing
the Confrontation Clause.
As an alternative to arguing from history, Petitioner
asserts, again without any support. that “the critical
consideration 1s whether, assuming statements of its kind are
admissible, a system will have been created in which
34
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.” Pet. Br. 12. This
consideration, in turn, depends on “whether the statement
performs the function of testimony.” /d. Yet Petitioner
' disclaims any need to offer a “detailed or precise exegesis of
what that function is.” /d. Instead, he offers a “serviceable,
shorthand” description: The “function of testimony” is
fulfilled “if the statement transmits information for use in
investigation or prosecution of crime.” Pet. Br. 12-13.
Given the overwhelming breadth of this “shorthand”
description, a “detailed or precise” explanation indeed seems
unnecessary because pretty much any statement useful at
trial could be described as “information for use in investi-
gation or prosecution of crime.” Pet. Br. 13. What remains
unclear, however, is why Petitioner finds it necessary to say
that it “appears plain” that an “accusation .. . lies at the
heart” of the matter. Pet. Br. 13. It would be far clearer for
Petitioner simply to say that «// hearsay, except perhaps co-
conspirator statements, is “testimonial.” Again, however,
Crawford rejected this notion. See Crawford, 541 U.S. at
51-52.
While ignoring history when crefting his “accusation”
test, Petitioner turns to history when he argues that there ts
no “excited utterance” exception to his proposed test. Pet.
Br. 21. During the course of that discussion, Petitioner cites
R. v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), as
supporting his “accusation” test. Brasier pardoned a man
convicted of assaultmg a child based on the testimony of her
mother and another woman relating the child’s accusatory
statements to them. /d. at 202-03. Petitioner argues that
Brasier turned on the rule that “no testimony whatever can
be legally received except upon oath,” which in turn proves
that all extrajudicial accusations are “testimonial.” /d. at 202
35
(quoted at Pet. Br. 27). For several reasons, Brasier cannot
support the weight Petitioner places on it.
First, as described more fully in the amicus curiae brief
of the States of Illinois et al., Brasier was based on the rules
regarding a child’s competency to testify, not any
determination regarding the “testimonial” nature of the
statements. Indeed, contemporaneous treatises cited Brasier
for the proposition that “recent” accounts of incidents are
generally admissible. Ill. Br. 7, 13. Second, the Court has
already made it clear that the Confrontation Clause was not
intended to constitutionalize the hearsay laws at the time of
the Founding. See, e.g., California v. Green, 399 U.S. 149,
155-56 (1970). The admissibility vel non of particular
evidence based on common-law hearsay rules is largely
beside the point. And to the extent common-law hearsay
rules are relevant, see Crawford, 541 U.S. at 56 & n.6
(noting possible Confrontation Clause exception for
testimonial dying declarations based on common-law
hearsay exception), the amicus curiae brief of Illinois ef al.
shows there is substantial evidence that Founding-era
common law permitted a hearsay exception for “excited
utterances” (including “accusatory” statements). Ill. Br. 6-14.
In the end, the notion of “testimonial” statements must
have a limiting principle, but Petitioner’s “accusation” test
provides none. Morcover, that test has no connection to any
constitutional history or text and ultimately derives from the
view that no limiting principle exists. It should therefore be
rejected.
B. Whether a reasonable declarant would have
understood the statement to be available for
prosecution has no Confrontation Clause roots
Perhaps sensing that the “information for use” and
“accusation” tests overreach tn light of Crawford, Pettioner
36
urges the Court to inquire, apparently as an alternative,
whether a reasonable declarant would have anticipated that
the statement would be used at trial. See Pet. Br. 18. But
this test, too, provides no real limits and has no connection to
constitutional text or history.
Petitioner’s “reasonable-anticipation” argument is largely
a response to the Indiana Supreme Court’s reliance on the
apparent subjective motivations of Amy Hammon and
Officer Mooney. See J.A. 100-03. To be absolutely clear on
the matter, however, the State concedes that the Indiana
Supreme Court’s dual consideration of the suhjective
motivations of the officer and the declarant was not the
proper test. As discussed in greater detail in Part 1.B, supra,
it was not the motivations of the civil-law authorities or
declarants that prompted the Confrontation Clause so much
as the nature of the practices employed for producing
evidence. See Crawford, 541 U.S. at 50-51. Furthermore, as
Petitioner argues, subjective-motivation tests are difficult to
administer and can lead to incongruous results in similar
cases. See Pet. Br. 18-21.
In terms of its relationship to the history and purpose of
the Confrontation Clause, however, Pctitioner’s “reasonable-
anticipation” argument fares no better than the subjective-
motivation inquiries. As with his initial argument that all
accusations to known police officers are “testimonial,”
Petitioner cites no authority for the proposition that a
statement is testimonial just because a reasonable declarant
- would have anticipated its use at trial. [t is certainly true that
the abuses giving rise to the Confrontation Clause arose in
circumstances where the declarant would have known that
the statement was going to be used at trial. See Crawford.
541 U.S. at 52 (citing affidavits, prior testimony. depositions,
and responses to custodial examinations or interrogations as
the abuses that prompted the Confrontation Clause). But that
does not mean that the Framers drafted the Clause to target
37
such knowledge or anticipation on the part of declarants.
Rather, they drafted it to target abusive tactics by govern-.
ment authorities irrespective of the declarant’s viewpoint.
Indeed, far from citing any constitutional history to
support this argument, Petitioner once again dismisses the
notion that the history of the Confrontation Clause has any
role in discerning its proper application. In particular,
Petitioner argues that the existence of police and prosecutors
is utterly inconsequential because the “right to confront
adverse witnesses predates” such officials by more than
2,000 years, with the Confrontation Clause itself predating
the modern police force by close to a century. See Pet. Br.
16. Examining the role of such officials, he says, “ignores
the fundamental nature of the accused’s right, which is to be
confronted with the witnesses against him.” /d. Accordingly,
the Confrontation Clause is not to be understood in light of
its historical purpose, but solely as the American
manifestation of an absolute, ancient tradition that, as
described by Petitioner, apparently prohibits admission of
anv hearsay evidence at trial against a criminal defendant.
See Pet. Br. 15-17 (describing several unprompted extra-
judicial statements that the Clause should prohibit from
being used at trial).
This argument not only ignores the _ historical
investigatory role of other officials (such as justices of the
peace), but it also leads to the conclusion that “witnesses”
must refer to evervone whose statements, regardless of
context, are offered at trial. In other words, if the Confron-
tation Clause admits of no historical understanding, no
legitimate basis exists for distinguishing among extrajudicial
statements in search of statements that are “testimonial.”
The objective viewpoint of the declarant has no better claim
to relevance than, say, the subjective motivation of the
officer.
38
Nor does it help Petitioner that “[t]he 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.” Pet. Br. 17. This may be true, but it
does not follow that “it is not essential that [a statement} be
received by a government officer” to be testimonial. /d. In
fact, the role of government officials in procuring
extrajudicial statements was critical ta the advent of the
Confrontation Clause. See Part 1.B, supra.
It also does not logically follow that “the critical
perspective” must be that of the declarant, or that there is
necessarily any critical perspective at all. Pet. Br. 17.
Petitioner adverts to the Sixth Amendment’s text on this
point, but that text provides a right to confront “witnesses,”
not “witnesses who reasonably should anticipate that the
statement may be used at trial.” See id. Petitioner must, but
does not, provide some other rationale for applying the
“reasonable-anticipation” rule.
Ultimately, Petitioner’s reliance on what a reasonable
declarant would have anticipated is yet another meaningless,
unjustified pretension of limits. In truth, it would deem
nearly a// statements to police officers or other government
agents to be “testimonial,” because how could a reasonable
person nof anticipate that such statements could be used at
trial? Apparently, Petitioner’s objective in proposing this
test is not to provide a principled limit on the scope of
“testimonial” statements to authorities, but to expand the
scope of “testimonial” statements to include some, or all,
statements to individuals who are not government agents.
See Pet. Br. 17. Thus, as with the “accusation” test, the
“reasonable-anticipation” test derives largely from the
premise that a// extrajudicial statements introduced at trial
are “testimonial.” The Court rejected this premise in
Crawford and it should reyect Petitioner’s arguments here as
well.
39
IV. The Confrontation Clause Should Not Bar Using
Initial Victim Statements in Typical Domestic-
Violence Trials
Domestic-violence cases inherently present what may be,
with the possible exception of child-abuse cases, a unique
combination of circumstances that simultaneously obstruct,
yet intensify the need for, successful criminal prosecutions:
low victim cooperation and high same-victim recidivism.
See Tom Lininger, Prosecuting Batterers after Crawford, 9|
Va. L. Rev. 747, 768-71 (2005); see also. Bureau of Justice
Statistics, Preventing Domestic Violence Against Women
(1986) (noting that during a six-month period following an
episode of domestic violence, 32% of women are victimized
again). Frequently, the victims of domestic violence are
deeply conflicted about their plight and refuse to testify at
trial. See Lininger, 91 Va. L. Rev. at 769-71. Yet without
successful prosecution, these victims are likely to be battered
again. See Am. Med. Ass'n, Diagnostic and Treatment
Guidelines on Domestic Violence 6 (1992), available at
http://www.ama-assn.org/ama | /pub/upload/mm/386/domes
ticviolence.pdf (stating that 47% of husbands who batter
their wives do so three or more times per year).
To obtain convictions against domestic abusers and
thereby stop the cycle of violence for many victims,
prosecutors have come to rely on the testimony of
emergency fi !-responders (including police) who testify as
to what they were told by the victim at the scene of an
emergency dispatch. See Lininger, 91 Va. L. Rev. at 771.
Several characteristics of domestic-violence cases should,
consonant with the history and purposes of the Confrontation
Clause, permit such prosecutions to continue.
40
A. In domestic-violence cases, it is typically the
defendant, not the State, that keeps the victim
from testifying at trial
History shows that the rights of confrontation and
compulsory process arose from the Crown's practices of
developing evidence for criminal prosecutions in secret and
then shielding that evidence from attack. See Pollitt, 8 1. Pub.
L. at 381 (1959) (confrontation clause); see gererci/> Peter
Westen, The Compulsory Process Clause, 73 Mich. L. Rev.
71, 71-108 (1974-75). Modern domestic-violence cases,
however, have no founding-era analogue, and if they present
any risk of tyranny, it is at the hands of defendants, not the
State.
In domestic-violence cases, defendants typically have
ample contact with the victim, at least in circumstances
where the victim refuses to cooperate with the prosecution.
See Lininger, 91 Va. L. Rev. at 770 (noting that generally
domestic-violence victims attempt to leave their abusers
several times before they are successful and that the most
dangerous time for the victim is when she ends the rela-
tionship). In fact, it 1s implicitly the defendant's influence
over the victim, rather than the State's, that keeps the victim
from testifying. See Lininger, 91 Va. L. Rev. at 769-71.
Often the abuser will expressly threaten further violence if
the victim testifies. See id. at 769 (“One study found that
batterers threaten retaliatory violence in as many as half of
all cases, and 30 percent of batterers actually assault their
victims during the predisposition phase of prosecution.”).
And even where no overt intimidation occurs, if the victim
continues an intimate relationship with the abuser. that
relationship will naturally discourage the victim’s coop-
eration with the prosecution. See id. at 769-71.
Indeed, it is highly disingenuous for domestic-violence
defendants to complain about any lack of ability to cross-
4|
examine their accusers. In this case, for example, the
prosecution subpoenaed Amy Hammon, but she refused to
attend the trial, presumably because she wished to continue
being married to Petitioner and did not want to see him
convicted of a crime. See J.A. 63-65, 82-83 (noting that the
victim did not wish to have a no-contact order after the
conviction). Rather than force an uncooperative victim to
take the stand and either condemn her husband or perjure
herself— while reliving the trauma of her abuse—the
prosecution relied on Officer Mooney to relate Amy
Hammon’s oral description of events. See J.A. 8-35.
At this point, if Petitioner believed himself to be
innocent, he, unlike Sir Walter Raleigh, had options.
Namely, he could have called Amy Hammon to the stand
and could have invoked his Sixth Amendment right to
compulsory process if she refused to testify. In that
circumstance, the State’s case would depend not on
sponsoring Amy Hammon’s testimony, but rather on simply
producing her (to the extent required by the Compulsory
Process Clause) so that Petitioner might cross-examine her.
In short, 1f a victim would be uncooperative (as so often
happens in domestic-violence cases), then as long as the
State satisfies its compulsory-process obligations, it should
be able to use the victim’s crime-scene statement to help
carry its evidentiary burden, regardless of how the Court
ultimately defines a “testimonial” statement in the Confron-
tation Clause context. See Nelson v. O'Neil, 402 U.S. 622,
629-30 (1971) (holding that confrontation rights were
satisfied where a police officer testified that a codefendant
had implicated the defendant and where the codefendant
testified on his own behalf and was available for cross-
examination): see also Green, 399 U.S. at 162 (“|W here the
declarant 1s not absent, but is present to testify and to submit
to cross-examination, our cases, if anything, support the
conclusion that the admission of his out-of-court statements
42
does not create a confrontation problem.”); cf Chambers v.
Mississippi, 410 U.S. 284, 302-03 (1973) (holding that
defendants are entitled to cross-examine even their own
witnesses).
The Sixth Amendment provides tools for a defense, not
the means for defendants to manipulate witnesses and then
bluff their way to acquittal.
B. Victims of domestic violence are _ typically
motivated by concerns for safety
Domestic-violence victims respond to abuse in many
different ways, including complying with the abuser’s
demands, talking to the abuser, escaping from the abuser,
soliciting help from fnends, and calling the police. See Mary
Ann Dutton, Understanding Women’s Responses to
Domestic Violence: A Redefinition of Battered Woman
Syndrome, 21 Hofstra L. Rev. 1191, 1227-29 (1993). The
victim may consider many factors in choosing how to
respond, including the effectiveness for ending the violence
and the likelihood that the violence might increase. See id. at
1228. Society commonly expects that an abuse victim
should call the police. However, empirical data show that
most domestic-violence victims do not call the police, and
that even when the police are called, the outcome is not
always positive. See id at 1229. For these reasons,
emergency first-responders may need to’ be more persistent
with domestic-violence victims in order to determine if
anyone has been injured, to assess whether any danger
remains, and to gauge how to defuse the situation.
Thus, the Court should not be impressed by Petitioner’s
observation that Amy Hammons first response to Officer
Mooney was to deny that anything was the matter, or that
Officer Mooney approached Amy a second time in order to
understand the situation. See Pet. Br. 33-34. Repetitive,
‘
43
even intensive, questioning of the victim in this context
would in no way be reminiscent of the inquisitorial abuses
that the Framers intended to prevent; rather, it would
reasonably relate to securing the victim’s immediate safety.
Accordingly, initial victim statements in domestic-violence
emergencies are even less likely to be “testimonial” than
initial victim statements in other emergencies.
More or less, studies show that victims of domestic vio-
lence are prone to recant their initial stories or to refuse to
cooperate after they initially provide information to the
police. See Lininger, 91 Va. L. Rev. at 768. Refusals to
cooperate or assist with prosecution are generally based on
fear of retaliation, emotional] attachment to the batterer,
financial dependence, concern for children and family
cohesion, and religious views of relationships. See id. at
769-71. The fact that victims often recant and “work against
their supposed self-interest” demonstrates that “it is unlikely
that the primary reason victims call for help is to generate
incriminating evidence rather than to -stop the current
violence.” See Andrew King-Ries, Crawford v. Washington:
The End of Victimless Prosecution?, 28 Seattle U. L. Rev.
301, 325 (2005). Thus, in the event that the Court
concludes—as it should not—that the declarant’s subjective
motivation for making a statement is relevant to whether that
statement is “testimonial,” it should bear in mind that when a
battered spouse does make a report to the police. it is
typically to get help, not to get justice.
V. Amy Hammon’s Oral Statements to Officer Mooney
Were Not “Testimonial”
The main test for determining if a_ statement is
“testimonial” ts the resemblance test. To be “testimonial,” a
Statement must be given in formal circumstances bearing
some resemblance to the abuses that gave rise to the Clause.
including in response to an interrogation. The corollary, the
44
immediate-safety rule, is that where a statement responds to
questioning that is reasonably related to an objectively
reasonable concern for the immediate saicty of persons or
property, the statement is not “testimonial.” These rules, like
nearly every legal rule, may well lead to some difficult cases
at the margins. This is not one of them.
|. When Amy Hammon told Officer Mooney that her
husband had beaten her, she was in the living room of their
home, not under oath in a courtroom, secluded in a
stationhouse, or even meeting at a prearranged time in an
office conference room with a court reporter. See J.A. 17.
Officers Mooney and Richardson had been dispatched to the
Hammon home not to investigate a known crime, but to
provide emergency assistance, see J.A. 9-10, which is not the
sort of magistrate activity that led to civil-law abuses. See
Crawford, 541 U.S. at SI.
On the front porch of the house, Officer Mooney asked
whether “there was a problem” and if “anything was going
on.” J.A. 14. Amy Hammon answered “No,” but her body .
language told Officer Mooncy a different story. See J.A. 14-
15. Because Amy Hammon was so obviously frightened,
and because he was concerned for her safety, Officer
Mooney asked permission to enter the house, which she
granted. See J.A. 14, 25.
After Mooney surveyed the house in disarray, Amy
Hammon eventually offered her description of the day’s
attack, including being thrown to the ground and being
beaten on the chest as well as having her face shoved into
broken glass. See J.A. 17-18. Significantly, however, while
the Indiana Supreme Court assumed that Officer Mooney
asked Amy Hammon at least one more question after
entering the Hammon home, J.A. 82, there ts no evidence in
the transcript that he did so. The transcript shows only that,
upon entering the home. Officer Mooney (1) observed
45
disarray, including the broken glass, flaming heater, and
children; (2) asked Petitioner if-everything was okay and if
he and Amy Hammon had argued; and then (3) “proceeded
to the living room where Amy was located to speak with
her.” See J.A. 16-17. Amy Hammon’s statement followed
immediately. See J.A. 17. While it may seem reasonable to
assume that Officer Mooney at that point would have again
asked Amy Hammon what had occurred, the transcript does
not support the notion that any extensive questioning took
place.
2. To say the least, this is not evidence that in any way
establishes a resemblance with civil-law inquisitorial abuses.
The only documented questions that Officer Mooney asked
of Amy Hammon (whether “there was a problem” and if
“anything was going on”) were not “tactically structured” to
elicit incriminating details, and the response ww _ it
incriminated no one in any event. The Indiana Supreme
Court accurately described the activities of Officers Mooney
and Richardson as “assessing the scene,” see J.A. 104, and
history does not suggest that the Framers were concerned
about voluntary witness disclosures to authorities at the
scene of a crime. It shows they were concerned about
employment of tactics from the Inquisition and the Star
Chamber. See Crawford, 541 U.S. at 43-49. But Officers
Mooney and Richardson did not play the Privy Council, and
Amy Hammon was no Lord Cobham. She was just one
more deeply conflicted victim of a domestic attack who
reached out when help arrived.
3. Furthermore, Officer Mooney’s actions pass the
“immediate-safety” test: they reasonably related to Amy
Hammon’s immediate safety and that of her children. When
Officer Mooncy rejoined Amy Hammon in the living room,
he did not yet know what had happened, or whether it was
sull happening. He did not know, for example. whether
Amy Hammon or her children needed protection, whether
46
there were weapons or other adults in the house that could
pose a danger, or an infinite variety of other facts relevant to
the situation he had observed. When Officer Mooney
approached Amy Hammon for the second time, in short, he
had evidence from which he could reasonably infer that
some type of immediate threat existed, and he needed
information to know how best to address that threat. Amy
Hammon’s oral statements reasonably imparting that
information are, therefore, not “testimonial.”
4. Amy Hammon’s affidavit, which the State concedes
is testimonial, provides a useful contrast. First, the affidavit
is the classic form of an extrajudicial sworn statement that
the Framers sought to bar absent witness unavailability and a
prior opportunity for cross-examination. In addition, while
Amy Hammon’s oral statements are not testimonial because
of their relationship to Officer Mooney’s need to assess an
immediate threat of harm, the affidavit is of a wholly
different character. Whatever else took place in the Hammon
home that day, by the time Officer Mooney asked Amy
Hammon to write down her story, he had assessed the threat,
and an affidavit was not related to defusing it. After learning
Amy Hammon’s plight, Officer Mooney, for example, could
have escorted her and her children to a shelter to escape
immediate danger without procuring the affidavit. The
affidavit was useful only for obtaining a criminal conviction,
not for securing the immediate safety of those present. By
this measure, Amy Hammon’s affidavit was “testimonial,”
but her oral statement was not.
47
CONCLUSION
The judgment of the Indiana Supreme Court should be
affirmed.
Respectfully submitted,
STEVE CARTER
Office of the Indiana Attorney General
Attorney General THOMAS M. FISHER*
IGC South, Fifth Floor Solicitor General
302 West Washington St. NICOLE M. SCHUSTER
Indianapolis, IN 46204 JULIE A. HOFFMAN
(317) 232-6201 Deputy Attorneys General
*Counsel of Record Counsel for Respondent
Dated: February 2, 2006
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.