# Respondents Brief — Hammon v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0264%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2005 - **Citation:** 546 U.S. 976 ## Text 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0264%3A08. Public record. Not legal advice.