# Amicus Curiae Brief — Hammon v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0264%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 546 U.S. 976 ## Text ) ) f Other courts have gone farther than Washington to say that any statement that is an excited utterance is per se nontestimonial. See, e.g., U.S. v. Brun, 416 F.3d 703, 707-08 (8th Cir. 2005) (indicating that statement to 911 operator is nontestimonial when it is “emotional and spontaneous” and holding that statements to responding police officer were “excited utterances and thus nontestmonial statements”); People v. Moscat, 3 Misc. 3d 739, 746 (N.Y. Sup. Ct. 2004) (adopting a rule that 911 calls are not testimonial for the same reason that they are excited utterances—“because there has been no opportunity for the caller to reflect and falsify her (or his) account of events”); People v. Corella, 18 Cal. Rptr.3d 770, 776 (Cal. Ct. App. 2004) (stating that it is difficult to perceive any circumstances under which an excited utterance would be . testimonial); State v. Banks, No. O3AP-1286, 2004 WL 2809070, at *3 (Ohio Ct. App. Dec. 7, 2004) (stating that Crawford does not apply to statement subject to common-law exceptions to the hearsay rule, such as excited utterance) * In Davis, the state court brushed aside the argument that Ms. McCottry reasonably knew that her statements could be used to prosecute Mr. Davis because it is common knowledge that statements made in the course of a 911 call can be used prosecutonally with the observation that there was “no evidence that McCottry had suck knowledge or that it influenced her decision to call 911." Davis, 111 P.3d at 850. It confidently concluded that, under the facts of the case, McCottry called 911 “because of an 16 In a given case, there may be some portions of 911 calls (or indeed portions of any out-of-court statement) that are not testimonial and can be introduced into evidence. This would include the portion of the call that is strictly a "cry for help" and does not describe another person's criminal activity. See People v. West, 823 N.E.2d 82, 91 (Ill. App. Ct. 2005) (finding statements to 911 operator describing nature of alleged attack, victim’s medical needs, and victim’s location to be nontestimonial, while statements describing assailants’ vehicle and the direction in which they fled to be testimonial). Although this part of a call may be a small portion of the entire conversation, the fact that a person sought aid from 911 at a particular time will often be an important and relevant item of evidence for the prosecution. The state court decisicns in both Davis and Hammon illustrate the same tendency seen in many Roberts-era cases. When Roberts said out-of-court statements could be admitted into evidence without confrontation if they fell within a "firmly rooted" hearsay exception, courts were pressured to steadily expand these exceptions. Davis and Hammon illustrate the similar pressure on courts to expand the definition of "nontestimonial." To avoid this msk, courts should not pretend that a person is not a "witness against” another when making statements in circumstances where a immediate danger” and that there was “no evidence [she] sought to ‘bear witness’ in contemplation of legal proceedings.” /d. at 851. The court did not explain how the defendant could have produced this evidence so long as Ms. McCottry was unavailable and could not be questioned regarding her motives and her understanding of how her statement might be used. This is similar to the Hammon court's finding with respect to Amy Hammon’s oral statement that her “motivation was to convey basic facts and [there] was no suggestion that [she] wanted her initial response to be preserved or otherwise used against her husband at mal,” even though she was unavailable and could not be questioned as to her motives. 829 N.E.2d at 458 17 reasonable person would expect those statements to be used for criminal investigation or prosecution. There may be room in Confrontation Clause jurisprudence for genuine exceptions to the confrontation rule. See generally Mattox v. United States, 156 U.S. 237, 243 (1895) (noting that in some instances exceptions to the Confrontation Clause may be appropriate when such exceptions were recognized at the time of its adoption). Indeed, Crawford notes that there may be an exception to the confrontation requirement for dying declarations. 541 US. at 56 n.6. It also reaffirms that the Confrontation Clause does not bar admission of statements made by witnesses whose unavailability arises from the defendant's own wrongdoing. Jd. at 62. If this Court chooses to make an exception for accusatory statements made during exigent circumstance or as part of a cry for help, rather than asserting that such statements are nontestimonial, the more analytically justified approach would be to recognize such an exception explicitly and justify it in terms of the history and purposes of the Confrontation Clause. See id. at 58 n.8. Absent such an exception, the reasoning and results in Davis, like those in Hammon, cannot be sustained. IV. THE CONFRONTATION CLAUSE IS NOT INCOMPATIBLE WITH EFFECTIVE DOMESTIC VIOLENCE PROSECUTIONS Just as the difficulties of prosecuting domestic violence cannot be an excuse for abandoning the Confrontation Clause, the requirements of the Confrontation Clause cannot and should not be seen as an insurmountable barner to domestic violence prosecutions. 18 A. The Problem of Reluctant Witnesses Prosecutors committed fo trying domestic violence cases have tended to rely so heavily on victims’ out-of-court statements because many forces discourage victims from testifying. According to some recent estimates, 80 to 90 percent of domestic violence victims whose abusers become involved with the criminal justice system recant or otherwise fail to assist the prosecution at some point in the proceedings. See Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768 n.103 (2005), Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1, 3 (2002). Some victims do not cooperate with prosecutors because they fear retaliation by the defendant. That fear may be a reasonable projection from past conduct. In other instances there may be express threats of retaliation or actual retaliatory violence by the batterer Indeed, data indicate that such threats and retaliation may occur in the majority of domestic violence prosecutions. £.g., Lininger, supra, at 769; Laura Dugan et al., Exposure Reduction or Retaliation? The Effects of Domestic Violence Resources on Intimate Partner Homicide, 37 Law & Soc’y Rev. 169, 179 (2003); Barbara Hart, Battered Women and the Crimina! Justice System, 36 Am. Behavioral Scientist 624, 626 (1993); see also Deborah Epstein et al., Transforming Aggressive Prosecution Policies: Prioritizing Victims’ Long-Term Safety in the Prosecution of Domestic Violence Cases, 11 Am. U.J. Gender Soc. Pol’y & L. 465, 476 & n.38 (2003) (describing study in which women identified fear of batterer as the number one reason why they were unwilling to cooperate with government). Battered women are at a heightened nsk of violence at the moment they seek to separate from their 19 abusers; cooperation in criminal prosecution is often meant and understood as a means of formally separating from an abuser and thus presents increased danger to victims. F.g., Dugan et al., supra, at 174; Ronet Bachman & Linda E. Saltzman, U.S. Department of Justice, Violence Against Women: Estimates from the Redesigned National Crime Victimization Survey (1995); see generally Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1 (1991) (explaining dynamics and prevalence of separation assault). As a result, many individuals who have expenenced domestic violence quite reasonably conclude that criminal! prosecution of their batterers will leave them less safe. Others victims of domestic violence do not testify for other reasons, including: economic dependence on their batterer; concern that an immigrant batterer will be deported upon conviction; fear of an adverse reaction from family or community, who might regard a victim's participation in the prosecution as a betrayal; apprehension that involvement in the cnminal justice system will lead to the loss of child custody to child protective services; or continuing emotional connections to their batterer. Epstein er al., supra, at 477-82; Hart, supra, at 627-28. Victims of domestic violence, like other victims of crime, sometimes cease to cooperate in prosecution because of the time and effort that such cooperation entails. The difficulties presented by taking repeated time off work or repeatedly finding child care in order to participate in court proceedings, for instance, can impose significant barners to participation, particularly to individuals who may be facing other crises in their lives as a result of the violence they have experienced. Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 Yale J. L. & Feminism 3, 25 (1999); Hart, supra, at 628. Moreover, while attitudes are changing, battered 20 women too often are viewed by the cnmuinal justice system as somehow responsible for the crimes against them, leading domestic violence victims to reject participation in cnmuinal tnals. £.g., Hart, supra, at 626-27. It is also important to recognize, however, that as with all crimes, some alleged victims refuse to testify because their initial accusations were untrue or exaggerated. For instance, batterers may falsely accuse their partners of abuse in an attempt to gain an upper hand in the relationship. E.g., Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1692-93 (2004). Thus, the function of confrontation as a tool to vindicate the innocent has as much of a role in domestic violence prosecutions as in other criminal prosecutions.” Additionally, a fair trial with confrontation nghts may itself heighten the deterrent effect of the criminal conviction by demonstrating the system's fairmess to the accused. Individuals arrested for domestic violence may be less likely to engage in violence in the future when they believe that they were treated in a procedurally fair manner upon their arrest. See Raymond Paternoster et al., Do Fair Procedures Matter? The Effect of Procedural Justice on Spouse Assault, 31 Law and Soc'y Rev. 163, 165 (1997). > While a substantial majority of domestic violence prosecutions involve a man accused of harming a woman, it would be a mistake to think that only male defendants benefit from the nght to confrontation. There are increasing numbers of prosecutions of women for domestic assaults on men, and junsdictions with large gay populations have begun to bring domestic violence charges against men and women in same-sex relationships. 2) B. States Have A Variety of Available Tools To Facilitate Domestic Violence Prosecutions Without Sacrificing Confrontation Clause Values. States have many tools available to address the reasons that domestic violence victims fail to testify and thus pursue domestic violence prosecutions consistent with the Consrontation Clause. Some data suggest that by using combinations of these techniques, victims will cooperate fully in a prosecution in sixty-five to ninety-five percent of cases. Angela Corsilles, Note, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 Fordham L. Rev. 853, 873 (1994). First, victims who receive the services of a victim advocate are far more likely to assist with the prosecution of their abuser. Melanie Randall, Domestic Violence and the Construction of ‘Ideal Victims’: Assaulted Women's “Image Problems” in Law, St. Louis Univ. Pub. L. Rev. 107, 143 (2004) (battered women three times more likely to be willing to testify when they met with an advocate); see a/so Epstein, supra, at 20 (1999) (survivors able to access interpersonal support twice as likely to cooperate with prosecution). Advocates can work with victims to demystify the cnminal process, address the range of needs created by the violence, help link victims to services, assist them with civil legal needs, and provide encouragement and support. See, e.g., Sack, supra, at 1728-29 (2004). For instance, advocates canhelp address a victim's concerns that cooperation will endanger her by offering safety planning or assistance in obtaining a protective order. They might also assist a victim who is concemed about loss of a batterer’s income by directing her to available benefits and explaining the application procedures for these benefits. Junsdictions can 22 enhance domestic violence prosecution by providing these domestic violence advocacy services. Second, jurisdictions can do more to make safety a reality for domestic violence victims. Increased resources to services for individuals seeking to escape domestic violence, including housing, job training, and the like, may also indirectly lead to greater victim cooperation in cnminal prosecution by reducing the danger and cost of ending a violent relationship. See generally supra at 1735 (2004). Third, some of the obstacles to testifying are the result of inefficiency within the criminal justice system. By coordinating the often separate fields of cnminal prosecution and civil no-contact orders, prosecutors or criminal court judges can help victims maneuver within the legal system and reduce the frustration that leads to noncooperation. Epstein, supra, at 21-34; Sack, supra, at 1731-32. Women who have experienced domestic violence are also more likely to cooperate with prosecution when they are not implicitly or explicitly blamed for the violence against them by police, prosecutors, or judges. See Hart, supra, at 626. Fourth, because victims’ willingness to participate in cnminal proceedings often diminishes over time, preserving testimony at an earlier stage may permit prosecutions to go forward that otherwise would have floundered on the lack of victim testimony. Lininger, supra, at 784-97. Fifth, thorough police work may help ensure a successful prosecution even if the complaining witness does not testify. Under the Roberts rule, police had confidence that they could obtain a conviction with little more than a 911 tape, thus eliminating an incentive to pursue other leads that could help seal the case. To be sure, a large number of domestic assaults are witnessed only by the assailant and the victim. But in other cases there may often be other 23 witnesses, such the person(s)who first called the police in Hammon, or the other persons on the scene (children and the man named Mike) when the 91} call was made in Davis. It would be a mistake for the Court to believe that domestic violence can be prosecuted only through a relaxed approach to the Confrontation Clause. C. The Fight Against Domestic Violence Should Not Be Measured Solely In Terms of Convictions Some advocates have expressed concerns that application of Crawford’s rule to the kinds of statements at issue in these cases will lead police to ignore domestic violence calls, because they consider it pointless to intervene if the alleged perpetrator will not be convicted as a result of an arrest. Others suggest that the inadmissibility of these statements give batterers an even greater incentive to prevent victims from testifying. Amici fully agree that these are outcomes to avoid and believe junsdictions should take steps such as those set out above to avoid this result. Moreover, whether a successful prosecution ultimately follows or not, police must continue to provide prompt emergency assistance in domestic violence cases to protect the health and safety of women and their families. In addition, while domestic violence is a cnme deserving vigorous enforcement anc punishment, the number of defendants convicted is not the only, or even the most important, measure of success in the struggle against domestic violence. Helping domestic violence victims address their immediate needs for housing, financial support, physical safety, and the like indirectly increases the probability victims will cooperate with prosecution; far more importantly, however, such assistance directly increases the likelihood victums of violence will be able to end violent relationships and protect themselves in the long term. Safety 24 and autonomy for victims of violence is the ultimate goal of domestic violence policy. While criminal law enforcement is an important piece of such efforts, standing alone it cannot achieve these goals. Communities will be most successful in eradicating domestic violence when they mount a broad response to the problem. to wa CONCLUSION For the reasons stated above, the judgments in Davis (05-5224) and Hammon (05-5705) should be reversed. ‘ Respectfully submitted, Jordan Gross Counsel of Record Yarmouth Wilsdon Calfo PLLC The IDX Tower , 925 Fourth Avenue, Suite 2500 Seattle, WA 98104 (206) 516 — 3800 Steven R. Shapiro Lenora Lapidus Emily Martin Amenican Civil Liberties Union Foundation 125 Broad Street, 18" Floor New York, NY 10004 (212) 549 ~ 2500 Aaron Caplan ACLU of Washington 705 Second Avenue Seattle, WA 98104 (206) 624 —- 2184 Ken Falk Indiana Civil Liberties Union 1031 East Washington Street Indianapolis, IN 46202 (317) 635 - 4059 to ~~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0264%3A11. Public record. Not legal advice.