When is a Statement Testimonial?

Crawford established the rule that the 6th amendment bars admission of testimonial statements made by a witness who did not testify at trial, unless the witness was unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. Crawford left unanswered the question of what constitutes “testimonial.” Earlier this year, the Supreme Court answered this question in Davis v. Washington.

Davis combined two cases, one from Washington and the other from Indiana. In the case from Washington, Davis v. Washington, Mr. Davis was convicted of felony violation of a domestic no-contact order. At trial, the State introduced over defense objection the statements made by Mr. Davis’ girlfriend to a 911 operator. The statements made by Ms. Davis to the operator relayed the events of the altercation with her boyfriend as these events were unfolding. She did not testify at trial and Mr. Davis had no prior opportunity to cross-examine her.

In the Indiana case, Hammon v. Indiana, Mr. Hammon was convicted of domestic battery. The State introduced at trial an affidavit signed by Ms. Hammon and given to police at the time of the incident. The statements Ms. Hammond made were her recollection of the altercation. She did not testify at trial and Mr. Hammon had no prior opportunity to cross-examine her.

The Supreme Court ruled that the Washington court’s admission of the statements made to and by the 911 operator were not testimonial. Conversely, the Court ruled the statements in Hammon were testimonial. In so doing, the Court established the rule by which statements will be deemed testimonial or not. In essence, the determination turns on the tense in which the statements are relayed to police. Generally, if told in the past tense, the statements are testimonial. If the statements to police are told in the present tense, then the statements are non-testimonial.

This is in keeping with a long line of Supreme Court precedent that reflects a trend that, generally, the higher degree of formality associated with the giving of the statement, the more likely it is that the statement is testimonial. The rule of Davis is that statements made to police are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The admissibility of such statements is properly analyzed under existing hearsay rules. Such statements do not implicate the Confrontation Clause.

On the other hand, statements made under circumstances which objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In the Washington case, the Court ruled that the statements were non-testimonial because they were made to a 911 operator to deal with an ongoing emergency. The Court ruled in the Indiana case that the statements were testimonial because they were made to a police officer after they had occurred. The police officer was in the process of investigating a potential crime.

Davis v. Washington; Hammon v. Indiana
Supreme Court of the United States