OPINION OF THE COURT
DAVIS V. WASHINGTON
547 U. S. ____ (2006_)
SUPREME COURT OF THE UNITED STATES
NOS. 05-5224 AND 05-5705
ADRIAN MARTELL DAVIS, PETITIONER
05–5224
v.
WASHINGTON
on writ of certiorari to the supreme court of
washington
HERSHEL HAMMON, PETITIONER
05–5705 v.
INDIANA
on writ of certiorari to the supreme court of
indiana
[June 19, 2006]
Justice Scalia delivered
the opinion of the Court.
These cases require us to
determine when statements made to law enforcement personnel during
a 911 call or at a crime scene are “testimonial” and thus subject
to the requirements of the Sixth Amendment’s Confrontation
Clause.
I
A
The relevant statements in
Davis v.
Washington, No. 05–5224, were made to a
911 emergency operator on February 1, 2001. When the operator
answered the initial call, the connection terminated before anyone
spoke. She reversed the call, and Michelle McCottry answered. In
the ensuing conversation, the operator ascertained that McCottry
was involved in a domestic disturbance with her former boyfriend
Adrian Davis, the petitioner in this case:
“911 Operator: Hello.
“Complainant: Hello.
“911 Operator: What’s going on?
“Complainant: He’s here jumpin’ on me
again.
“911 Operator: Okay. Listen to me carefully.
Are you in a house or an apartment?
“Complainant: I’m in a house.
“911 Operator: Are there any weapons?
“Complainant: No. He’s usin’ his fists.
“911 Operator: Okay. Has he been drinking?
“Complainant: No.
“911 Operator: Okay, sweetie. I’ve got help
started. Stay on the line with me, okay?
“Complainant: I’m on the line.
“911 Operator: Listen to me carefully. Do you
know his last name?
“Complainant: It’s Davis.
“911 Operator: Davis? Okay, what’s his first
name?
“Complainant: Adran
“911 Operator: What is it?
“Complainant: Adrian.
“911 Operator: Adrian?
“Complainant: Yeah.
“911 Operator: Okay. What’s his middle
initial?
“Complainant: Martell. He’s runnin’ now.” App.
in No. 05–5224, pp. 8–9.
As the conversation continued, the operator learned
that Davis had “just r[un] out the door” after hitting McCottry,
and that he was leaving in a car with someone else.
Id.,
at 9–10. McCottry started talking, but the operator cut her off,
saying, “Stop talking and answer my questions.”
Id., at
10. She then gathered more information about Davis (including his
birthday), and learned that Davis had told McCottry that his
purpose in coming to the house was “to get his stuff,” since
McCottry was moving.
Id., at 11–12. McCottry described the
context of the assault,
id., at 12, after which the
operator told her that the police were on their way. “They’re gonna
check the area for him first,” the operator said, “and then they’re
gonna come talk to you.”
Id., at 12–13.
The police arrived within four minutes of the
911 call and observed McCottry’s shaken state, the “fresh injuries
on her forearm and her face,” and her “frantic efforts to gather
her belongings and her children so that they could leave the
residence.” 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005)
(en banc).
The State charged Davis with felony violation
of a domestic no-contact order. “The State’s only witnesses were
the two police officers who responded to the 911 call. Both
officers testified that McCottry exhibited injuries that appeared
to be recent, but neither officer could testify as to the cause of
the injuries.”
Ibid. McCottry presumably could have
testified as to whether Davis was her assailant, but she did not
appear. Over Davis’s objection, based on the Confrontation Clause
of the Sixth Amendment, the trial court admitted the recording of
her exchange with the 911 operator, and the jury convicted him. The
Washington Court of Appeals affirmed, 116 Wash. App. 81, 64
P. 3d 661 (2003). The Supreme Court of Washington, with one
dissenting justice, also affirmed, concluding that the portion of
the 911 conversation in which McCottry identified Davis was not
testimonial, and that if other portions of the conversation were
testimonial, admitting them was harmless beyond a reasonable doubt.
154 Wash. 2d, at 305, 111 P. 3d, at 851. We granted
certiorari. 546 U. S. ___ (2005).
B
In
Hammon v.
Indiana, No. 05–5705, police responded late on the night
of February 26, 2003, to a “reported domestic disturbance” at the
home of Hershel and Amy Hammon. 829 N. E. 2d 444, 446 (Ind.
2005). They found Amy alone on the front porch, appearing
“ ‘somewhat frightened,’ ” but she told them that
“ ‘nothing was the matter,’ ”
id., at 446, 447.
She gave them permission to enter the house, where an officer saw
“a gas heating unit in the corner of the living room” that had
“flames coming out of the … partial glass front. There were pieces
of glass on the ground in front of it and there was flame emitting
from the front of the heating unit.” App. in No. 05–5705, p.
16.
Hershel, meanwhile, was in the
kitchen. He told the police “that he and his wife had ‘been in an
argument’ but ‘everything was fine now’ and the argument ‘never
became physical.’ ” 829 N. E. 2d, at 447. By this point
Amy had come back inside. One of the officers remained with
Hershel; the other went to the living room to talk with Amy, and
“again asked [her] what had occurred.”
Ibid.; App. in
No. 05–5705, at 17, 32. Hershel made several attempts to
participate in Amy’s conversation with the police, see
id., at 32, but was rebuffed. The officer later testified
that Hershel “became angry when I insisted that [he] stay separated
from Mrs. Hammon so that we can investigate what had happened.”
Id., at 34. After hearing Amy’s account, the officer “had
her fill out and sign a battery affidavit.”
Id., at 18.
Amy handwrote the following: “Broke our Furnace & shoved me
down on the floor into the broken glass. Hit me in the chest and
threw me down. Broke our lamps & phone. Tore up my van where I
couldn’t leave the house. Attacked my daughter.”
Id., at
2.
The State charged Hershel with domestic
battery and with violating his probation. Amy was subpoenaed, but
she did not appear at his subsequent bench trial. The State called
the officer who had questioned Amy, and asked him to recount what
Amy told him and to authenticate the affidavit. Hershel’s counsel
repeatedly objected to the admission of this evidence. See
id., at 11, 12, 13, 17, 19, 20, 21. At one point, after
hearing the prosecutor defend the affidavit because it was made
“under oath,” defense counsel said, “That doesn’t give us the
opportunity to cross examine [the] person who allegedly drafted it.
Makes me mad.”
Id., at 19. Nonetheless, the trial court
admitted the affidavit as a “present sense impression,”
id., at 20, and Amy’s statements as “excited utterances”
that “are expressly permitted in these kinds of cases even if the
declarant is not available to testify.”
Id., at 40. The
officer thus testified that Amy
“informed me that she and Hershel had been in an
argument. That he became irrate [sic] over the fact of their
daughter going to a boyfriend’s house. The argument became …
physical after being verbal and she informed me that Mr. Hammon,
during the verbal part of the argument was breaking things in the
living room and I believe she stated he broke the phone, broke the
lamp, broke the front of the heater. When it became physical he
threw her down into the glass of the heater.
. . . . .
“She informed me Mr. Hammon had pushed her
onto the ground, had shoved her head into the broken glass of the
heater and that he had punched her in the chest twice I believe.”
Id., at 17–18.
The trial judge found Hershel guilty on both
charges,
id., at 40, and the Indiana Court of Appeals
affirmed in relevant part, 809 N. E. 2d 945 (2004). The
Indiana Supreme Court also affirmed, concluding that Amy’s
statement was admissible for state-law purposes as an excited
utterance, 829 N. E. 2d, at 449; that “a ‘testimonial’
statement is one given or taken in significant part for purposes of
preserving it for potential future use in legal proceedings,” where
“the motivations of the questioner and declarant are the central
concerns,”
id., at 456, 457; and that Amy’s oral statement
was not “testimonial” under these standards,
id., at 458.
It also concluded that, although the affidavit was testimonial and
thus wrongly admitted, it was harmless beyond a reasonable doubt,
largely because the trial was to the bench.
Id., at
458–459. We granted certiorari. 546 U. S. ___ (2005).
II
The Confrontation Clause of the
Sixth Amendment provides: “In all criminal prosecutions, the
accused shall enjoy the right … to be confronted with the witnesses
against him.” In
Crawford v.
Washington, 541 U. S. 36, 53–54 (2004), we held
that this provision bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination.” A critical portion of this holding, and the
portion central to resolution of the two cases now before us, is
the phrase “testimonial statements.” Only statements of this sort
cause the declarant to be a “witness” within the meaning of the
Confrontation Clause. See
id., at 51. It is the
testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.
Our opinion in
Crawford
set forth “[v]arious formulations” of the core class of
“ ‘testimonial’ ” statements,
ibid., but found
it unnecessary to endorse any of them, because “some statements
qualify under any definition,”
id., at 52. Among those, we
said, were “[s]tatements taken by police officers in the course of
interrogations,”
ibid.; see also
id., at 53. The
questioning that generated the deponent’s statement in
Crawford—which was made and recorded while she was in
police custody, after having been given
Miranda warnings
as a possible suspect herself—“qualifies under any conceivable
definition” of an “ ‘interrogation,’ ” 541 U. S., at 53,
n. 4. We therefore did not define that term, except to say
that “[w]e use [it] . . . in its colloquial, rather than any
technical legal, sense,” and that “one can imagine various
definitions . . . , and we need not select among them in this
case.”
Ibid. The character of the statements in the
present cases is not as clear, and these cases require us to
determine more precisely which police interrogations produce
testimony.
Without attempting to produce an exhaustive
classification of all conceivable statements—or even all
conceivable statements in response to police interrogation—as
either testimonial or nontestimonial, it suffices to decide the
present cases to hold as follows: Statements are nontestimonial
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. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.[
Footnote 1]
III
A
In
Crawford, it sufficed
for resolution of the case before us to determine that “even if the
Sixth Amendment is not solely concerned with testimonial hearsay,
that is its primary object, and interrogations by law enforcement
officers fall squarely within that class.”
Id., at 53.
Moreover, as we have just described, the facts of that case spared
us the need to define what we meant by “interrogations.” The
Davis case today does not permit us this luxury of
indecision. The inquiries of a police operator in the course of a
911 call[
Footnote 2] are an
interrogation in one sense, but not in a sense that “qualifies
under any conceivable definition.” We must decide, therefore,
whether the Confrontation Clause applies only to testimonial
hearsay; and, if so, whether the recording of a 911 call
qualifies.
The answer to the first question
was suggested in
Crawford, even if not explicitly
held:
“The text of the Confrontation
Clause reflects this focus [on testimonial hearsay]. It applies to
‘witnesses’ against the accused—in other words, those who ‘bear
testimony.’ 1 N. Webster, An American Dictionary of the English
Language (1828). ‘Testimony,’ in turn, is typically ‘a solemn
declaration or affirmation made for the purpose of establishing or
proving some fact.’
Ibid. An accuser who makes a formal
statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.” 541
U. S., at 51.
A limitation so clearly reflected in the text of
the constitutional provision must fairly be said to mark out not
merely its “core,” but its perimeter.
We are not aware of any early American case
invoking the Confrontation Clause or the common-law right to
confrontation that did not clearly involve testimony as thus
defined.[
Footnote 3] Well into
the 20th century, our own Confrontation Clause jurisprudence was
carefully applied only in the testimonial context. See,
e.g.,
Reynolds v.
United States,
98 U. S. 145, 158
(1879) (testimony at prior trial was subject to the Confrontation
Clause, but petitioner had forfeited that right by procuring
witness’s absence);
Mattox v.
United States,
156 U. S. 237,
240–244 (1895) (prior trial testimony of deceased witnesses
admitted because subject to cross-examination);
Kirby v.
United States, 174 U. S. 47, 55–56
(1899) (guilty pleas and jury conviction of others could not be
admitted to show that property defendant received from them was
stolen);
Motes v.
United States, 178 U. S. 458, 467,
470–471 (1900) (written deposition subject to cross-examination was
not admissible because witness was available);
Dowdell v.
United States, 221 U. S. 325, 330–331
(1911) (facts regarding conduct of prior trial certified to by the
judge, the clerk of court, and the official reporter did not relate
to defendants’ guilt or innocence and hence were not statements of
“witnesses” under the Confrontation Clause).
Even our later cases, conforming to the
reasoning of
Ohio v.
Roberts, 448 U. S. 56
(1980),[
Footnote 4] never in
practice dispensed with the Confrontation Clause requirements of
unavailability and prior cross-examination in cases that involved
testimonial hearsay, see
Crawford, 541 U. S., at 57–59
(citing cases), with one arguable exception, see
id., at
58, n. 8 (discussing
White v.
Illinois,
502 U. S. 346
(1992)). Where our cases did dispense with those requirements—even
under the
Roberts approach—the statements at issue were
clearly nontestimonial. See,
e.g.,
Bourjaily v.
United States, 483 U. S. 171, 181–184
(1987) (statements made unwittingly to a Government informant);
Dutton v.
Evans, 400 U. S. 74, 87–89
(1970) (plurality opinion) (statements from one prisoner to
another).
Most of the American cases applying the
Confrontation Clause or its state constitutional or common-law
counterparts involved testimonial statements of the most formal
sort—sworn testimony in prior judicial proceedings or formal
depositions under oath—which invites the argument that the scope of
the Clause is limited to that very formal category. But the English
cases that were the progenitors of the Confrontation Clause did not
limit the exclusionary rule to prior court testimony and formal
depositions, see
Crawford,
supra, at 52, and
n. 3. In any event, we do not think it conceivable that the
protections of the Confrontation Clause can readily be evaded by
having a note-taking policeman
recite the unsworn hearsay
testimony of the declarant, instead of having the declarant sign a
deposition. Indeed, if there is one point for which no case—English
or early American, state or federal—can be cited, that is it.
The question before us in
Davis,
then, is whether, objectively considered, the interrogation that
took place in the course of the 911 call produced testimonial
statements. When we said in
Crawford,
supra, at
53, that “interrogations by law enforcement officers fall squarely
within [the] class” of testimonial hearsay, we had immediately in
mind (for that was the case before us) interrogations solely
directed at establishing the facts of a past crime, in order to
identify (or provide evidence to convict) the perpetrator. The
product of such interrogation, whether reduced to a writing signed
by the declarant or embedded in the memory (and perhaps notes) of
the interrogating officer, is testimonial. It is, in the terms of
the 1828 American dictionary quoted in
Crawford,
“ ‘[a] solemn declaration or affirmation made for the purpose
of establishing or proving some fact.’ ” 541 U. S., at 51.
(The solemnity of even an oral declaration of relevant past fact to
an investigating officer is well enough established by the severe
consequences that can attend a deliberate falsehood. See,
e.g., United States v.
Stewart, 433
F. 3d 273, 288 (CA2 2006) (false statements made to federal
investigators violate 18 U. S. C. §1001);
State v.
Reed, 2005 WI 53, ¶30, 695 N. W. 2d 315, 323 (state
criminal offense to “knowingly giv[e] false information to [an]
officer with [the] intent to mislead the officer in the performance
of his or her duty”).) A 911 call, on the other hand, and at least
the initial interrogation conducted in connection with a 911 call,
is ordinarily not designed primarily to “establis[h] or prov[e]”
some past fact, but to describe current circumstances requiring
police assistance.
The difference between the interrogation in
Davis and the one in
Crawford is apparent on the
face of things. In
Davis, McCottry was speaking about
events
as they were actually happening, rather than
“describ[ing] past events,”
Lilly v.
Virginia,
527 U. S. 116,
137 (1999) (plurality opinion). Sylvia Crawford’s interrogation, on
the other hand, took place hours after the events she described had
occurred. Moreover, any reasonable listener would recognize that
McCottry (unlike Sylvia Crawford) was facing an ongoing emergency.
Although one
might call 911 to provide a narrative report
of a crime absent any imminent danger, McCottry’s call was plainly
a call for help against bona fide physical threat. Third, the
nature of what was asked and answered in
Davis, again
viewed objectively, was such that the elicited statements were
necessary to be able to
resolve the present emergency,
rather than simply to learn (as in
Crawford) what had
happened in the past. That is true even of the operator’s effort to
establish the identity of the assailant, so that the dispatched
officers might know whether they would be encountering a violent
felon. See,
e.g.,
Hiibel v.
Sixth Judicial
Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186
(2004). And finally, the difference in the level of formality
between the two interviews is striking. Crawford was responding
calmly, at the station house, to a series of questions, with the
officer-interrogator taping and making notes of her answers;
McCottry’s frantic answers were provided over the phone, in an
environment that was not tranquil, or even (as far as any
reasonable 911 operator could make out) safe.
We conclude from all this that the
circumstances of McCottry’s interrogation objectively indicate its
primary purpose was to enable police assistance to meet an ongoing
emergency. She simply was not acting as a
witness; she was
not
testifying. What she said was not “a weaker substitute
for live testimony” at trial,
United States v.
Inadi, 475
U. S. 387, 394 (1986), like Lord Cobham’s statements in
Raleigh’s Case, 2 How. St. Tr. 1 (1603), or Jane Dingler’s
ex parte statements against her husband in
King
v.
Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or
Sylvia Crawford’s statement in
Crawford. In each of those
cases, the
ex parte actors and the evidentiary products of
the
ex parte communication aligned perfectly with their
courtroom analogues. McCottry’s emergency statement does not. No
“witness” goes into court to proclaim an emergency and seek
help.
Davis seeks to cast McCottry in the unlikely
role of a witness by pointing to English cases. None of them
involves statements made during an ongoing emergency. In
King v.
Brasier, 1 Leach 199, 168 Eng. Rep. 202
(1779), for example, a young rape victim, “immediately on her
coming home, told all the circumstances of the injury” to her
mother.
Id., at 200, 168 Eng. Rep., at 202. The case would
be helpful to Davis if the relevant statement had been the girl’s
screams for aid as she was being chased by her assailant. But by
the time the victim got home, her story was an account of past
events.
This is not to say that a conversation which
begins as an interrogation to determine the need for emergency
assistance cannot, as the Indiana Supreme Court put it, “evolve
into testimonial statements,” 829 N. E. 2d, at 457, once that
purpose has been achieved. In this case, for example, after the
operator gained the information needed to address the exigency of
the moment, the emergency appears to have ended (when Davis drove
away from the premises). The operator then told McCottry to be
quiet, and proceeded to pose a battery of questions. It could
readily be maintained that, from that point on, McCottry’s
statements were testimonial, not unlike the “structured police
questioning” that occurred in
Crawford, 541 U. S., at 53,
n. 4. This presents no great problem. Just as, for Fifth Amendment
purposes, “police officers can and will distinguish almost
instinctively between questions necessary to secure their own
safety or the safety of the public and questions designed solely to
elicit testimonial evidence from a suspect,”
New York v.
Quarles, 467 U. S. 649, 658–659
(1984), trial courts will recognize the point at which, for Sixth
Amendment purposes, statements in response to interrogations become
testimonial. Through
in limine procedure, they should
redact or exclude the portions of any statement that have become
testimonial, as they do, for example, with unduly prejudicial
portions of otherwise admissible evidence. Davis’s jury did not
hear the
complete 911 call, although it may well have
heard some testimonial portions. We were asked to classify only
McCottry’s early statements identifying Davis as her assailant, and
we agree with the Washington Supreme Court that they were not
testimonial. That court also concluded that, even if later parts of
the call were testimonial, their admission was harmless beyond a
reasonable doubt. Davis does not challenge that holding, and we
therefore assume it to be correct.
B
Determining the testimonial or
nontestimonial character of the statements that were the product of
the interrogation in
Hammon is a much easier task, since
they were not much different from the statements we found to be
testimonial in
Crawford. It is entirely clear from the
circumstances that the interrogation was part of an investigation
into possibly criminal past conduct—as, indeed, the testifying
officer expressly acknowledged, App. in No. 05–5705, at 25, 32, 34.
There was no emergency in progress; the interrogating officer
testified that he had heard no arguments or crashing and saw no one
throw or break anything,
id., at 25. When the officers
first arrived, Amy told them that things were fine,
id.,
at 14, and there was no immediate threat to her person. When the
officer questioned Amy for the second time, and elicited the
challenged statements, he was not seeking to determine (as in
Davis) “what is happening,” but rather “what happened.”
Objectively viewed, the primary, if not indeed the sole, purpose of
the interrogation was to investigate a possible crime—which is, of
course, precisely what the officer
should have done.
It is true that the
Crawford interrogation was more formal. It followed a
Miranda warning, was tape-recorded, and took place at the
station house, see 541 U. S., at 53, n. 4. While these
features certainly strengthened the statements’ testimonial
aspect—made it more objectively apparent, that is, that the purpose
of the exercise was to nail down the truth about past criminal
events—none was essential to the point. It was formal enough that
Amy’s interrogation was conducted in a separate room, away from her
husband (who tried to intervene), with the officer receiving her
replies for use in his “investigat[ion].” App. in No. 05–5705, at
34. What we called the “striking resemblance” of the
Crawford statement to civil-law
ex parte
examinations, 541 U. S., at 52, is shared by Amy’s statement here.
Both declarants were actively separated from the defendant—officers
forcibly prevented Hershel from participating in the interrogation.
Both statements deliberately recounted, in response to police
questioning, how potentially criminal past events began and
progressed. And both took place some time after the events
described were over. Such statements under official interrogation
are an obvious substitute for live testimony, because they do
precisely
what a wit- ness does on direct examination;
they are inherently testimonial.[
Footnote 5]
Both Indiana and the United States as
amicus curiae argue that this case should be resolved much
like
Davis. For the reasons we find the comparison to
Crawford compelling, we find the comparison to
Davis unpersuasive. The statements in
Davis were
taken when McCottry was alone, not only unprotected by police (as
Amy Hammon was protected), but apparently in immediate danger from
Davis. She was seeking aid, not telling a story about the past.
McCottry’s present-tense statements showed immediacy; Amy’s
narrative of past events was delivered at some remove in time from
the danger she described. And after Amy answered the officer’s
questions, he had her execute an affidavit, in order, he testified,
“[t]o establish events that have occurred previously.” App. in No.
05–5705, at 18.
Although we necessarily reject the Indiana
Supreme Court’s implication that virtually any “initial inquiries”
at the crime scene will not be testimonial, see 829 N. E. 2d,
at 453, 457, we do not hold the opposite—that
no questions
at the scene will yield nontestimonial answers. We have already
observed of domestic disputes that “[o]fficers called to
investigate … need to know whom they are dealing with in order to
assess the situation, the threat to their own safety, and possible
danger to the potential victim.”
Hiibel, 542 U. S., at
186. Such exigencies may
often mean that “initial
inquiries” produce nontestimonial statements. But in cases like
this one, where Amy’s statements were neither a cry for help nor
the provision of information enabling officers immediately to end a
threatening situation, the fact that they were given at an alleged
crime scene and were “initial inquiries” is immaterial. Cf.
Crawford, supra, at 52, n. 3.[
Footnote 6]
IV
Respondents in both cases, joined
by a number of their
amici, contend that the nature of the
offenses charged in these two cases—domestic violence—requires
greater flexibility in the use of testimonial evidence. This
particular type of crime is notoriously susceptible to intimidation
or coercion of the victim to ensure that she does not testify at
trial. When this occurs, the Confrontation Clause gives the
criminal a windfall. We may not, however, vitiate constitutional
guarantees when they have the effect of allowing the guilty to go
free. Cf.
Kyllo v.
United States, 533 U. S. 27 (2001) (suppressing
evidence from an illegal search). But when defendants seek to
undermine the judicial process by procuring or coercing silence
from witnesses and victims, the Sixth Amendment does not require
courts to acquiesce. While defendants have no duty to assist the
State in proving their guilt, they
do have the duty to
refrain from acting in ways that destroy the integrity of the
criminal-trial system. We reiterate what we said in
Crawford: that “the rule of forfeiture by wrongdoing …
extinguishes confrontation claims on essentially equitable
grounds.” 541 U. S., at 62 (citing
Reynolds, 98 U. S., at
158–159). That is, one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation.
We take no position on the
standards necessary to demonstrate such forfeiture, but federal
courts using Federal Rule of Evidence 804(b)(6), which codifies the
forfeiture doctrine, have generally held the Government to the
preponderance-of-the-evidence standard, see,
e.g.,
United States v.
Scott, 284 F. 3d 758, 762
(CA7 2002). State courts tend to follow the same practice, see,
e.g.,
Commonwealth v.
Edwards, 444 Mass.
526, 542, 830 N. E. 2d 158, 172 (2005). Moreover, if a hearing
on forfeiture is required,
Edwards, for instance, observed
that “hearsay evidence, including the unavailable witness’s
out-of-court statements, may be considered.”
Id., at 545,
830 N. E. 2d, at 174. The
Roberts approach to the
Confrontation Clause undoubtedly made recourse to this doctrine
less necessary, because prosecutors could show the “reliability” of
ex parte statements more easily than they could show the
defendant’s procurement of the witness’s absence.
Crawford, in overruling
Roberts, did not destroy
the ability of courts to protect the integrity of their
proceedings.
We have determined that, absent a finding of
forfeiture by wrongdoing, the Sixth Amendment operates to exclude
Amy Hammon’s affidavit. The Indiana courts may (if they are asked)
determine on remand whether such a claim of forfeiture is properly
raised and, if so, whether it is meritorious.
* * *
We affirm the judgment of the
Supreme Court of Washington in No. 05–5224. We reverse the judgment
of the Supreme Court of Indiana in No. 05–5705, and remand the case
to that Court for proceedings not inconsistent with this
opinion.
It is so ordered.
Footnote 1
Our holding refers to interrogations
because, as explained below, the statements in the cases presently
before us are the products of interrogations—which in some
circumstances tend to generate testimonial responses. This is not
to imply, however, that statements made in the absence of any
interrogation are necessarily nontestimonial. The Framers were no
more willing to exempt from cross-examination volunteered testimony
or answers to open-ended questions than they were to exempt answers
to detailed interrogation. (Part of the evidence against Sir Walter
Raleigh was a letter from Lord Cobham that was plainly not the
result of sustained questioning.
Raleigh’s Case, 2 How.
St. Tr. 1, 27 (1603).) And of course even when interrogation
exists, it is in the final analysis the declarant’s statements, not
the interrogator’s questions, that the Confrontation Clause
requires us to evaluate.
Footnote 2
If 911 operators are not themselves law
enforcement officers, they may at least be agents of law
enforcement when they conduct interrogations of 911 callers. For
purposes of this opinion (and without deciding the point), we
consider their acts to be acts of the police. As in
Crawford v.
Washington,
541 U. S. 36 (2004), therefore, our
hold- ing today makes it unnecessary to consider whether and when
statements made to someone other than law enforcement personnel are
“testimonial.”
Footnote 3
See,
e.g.,
State v.
Webb, 2 N. C. 103, 103–104 (Super. L. & Eq. 1794)
(per curiam) (excluding deposition taken in absence of the
accused);
State v.
Atkins, 1 Tenn. 229 (Super. L.
& Eq. 1807)
(per curiam) (excluding prior testimony of
deceased witness);
Johnston v.
State, 10 Tenn.
58, 59 (Err. & App. 1821) (admitting written deposition of
deceased deponent, because defendant had the opportunity to
cross-examine);
Finn v.
Commonwealth, 26 Va. 701,
707–708 (1827) (excluding prior testimony of a witness still alive,
though outside the jurisdiction);
State v.
Hill,
20 S. C. L. 607 (App. 1835) (excluding deposition of deceased
victim taken in absence of the accused);
Commonwealth v.
Richards, 35 Mass. 434, 436–439 (1837) (excluding
preliminary examination testimony of deceased witness because the
witness’s precise words were not available);
Bostick v.
State, 22 Tenn. 344 (1842) (admitting deposition of
deceased where defendant declined opportunity to cross-examine);
People v.
Newman, 5 Hill 295 (N. Y. Sup. Ct.
1843)
(per curiam) (excluding prior trial testimony of
witness who was still alive);
State v.
Campbell,
30 S. C. L. 124, 125 (App. L. 1844) (excluding deposition
taken in absence of the accused);
State v.
Valentine, 29 N. C. 225 (1847)
(per curiam)
(admitting preliminary examination testimony of decedent where
defendant had opportunity to cross-examine);
Kendrick v.
State, 29 Tenn. 479, 491 (1850) (admitting testimony of
deceased witness at defendant’s prior trial);
State v.
Houser, 26 Mo. 431, 439–441 (1858) (excluding deposition
of deponent who was still alive).
Footnote 4
“
Roberts condition[ed] the
admissibility of all hearsay evidence on whether it falls under a
‘firmly rooted hearsay exception’ or bears ‘particularized
guarantees of trustworthiness.’ ”
Crawford, 541 U.
S., at 60 (quoting
Roberts, 448 U. S., at 66). We
overruled
Roberts in
Crawford by restoring the
unavailability and cross-examination requirements.
Footnote 5
The dissent criticizes our test for being
“neither workable nor a targeted attempt to reach the abuses
forbidden by the [Confrontation] Clause,”
post, at 9
(opinion of Thomas, J.). As to the former: We have acknowledged
that our holding is not an “exhaustive classification of all
conceivable statements—or even all conceivable statements in
response to police interrogation,”
supra, at 7, but rather
a resolution of the cases before us and those like them. For
those cases, the test is objective and quite “workable.”
The dissent, in attempting to formulate an exhaustive
classification of its own, has not provided anything that deserves
the description “workable”—unless one thinks that the distinction
between “formal” and “informal” statements, see
post, at
4–5, qualifies. And the dissent even qualifies that vague
distinction by acknowledging that the Confrontation Clause “also
reaches the use of technically informal statements when used to
evade the formalized process,”
post, at 5, and cautioning
that the Clause would stop the State from “us[ing] out-of-court
statements as a means of circumventing the literal right of
confrontation,”
post, at 6. It is hard to see this as much
more “predictable,”
ibid., than the rule we adopt for the
narrow situations we address. (Indeed, under the dissent’s approach
it is eminently arguable that the dissent should agree, rather than
disagree, with our disposition in
Hammon v.
Indiana, No. 05–5705
.)
As for the charge that our holding is not a “targeted attempt to
reach the abuses forbidden by the [Confrontation] Clause,” which
the dissent describes as the depositions taken by Marian
magistrates, characterized by a high degree of formality, see
post, at 2–3: We do not dispute that formality is indeed
essential to testimonial utterance. But we no longer have examining
Marian magistrates; and we do have, as our 18th-century forebears
did not, examining police officers, see L. Friedman, Crime and
Punishment in American History 67–68 (1993)—who perform
investigative and testimonial functions once performed by examining
Marian magistrates, see J. Langbein, The Origins of Adversary
Criminal Trial 41 (2003). It imports sufficient formality, in our
view, that lies to such officers are criminal offenses. Restricting
the Confrontation Clause to the precise forms against which it was
originally directed is a recipe for its extinction. Cf.
Kyllo v.
United States, 533 U. S. 27 (2001).
Footnote 6
Police investigations themselves are, of
course, in no way impugned by our characterization of their fruits
as testimonial. Investigations of past crimes prevent future harms
and lead to necessary arrests. While prosecutors may hope that
inculpatory “nontestimonial” evidence is gathered, this is
essentially beyond police control. Their saying that an emergency
exists cannot make it be so. The Confrontation Clause in no way
governs police conduct, because it is the trial
use of,
not the investigatory
collection of,
ex parte
testimonial statements which offends that provision. But neither
can police conduct govern the Confrontation Clause; testimonial
statements are what they are.
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