Both Seattle dailies featured the news prominently in their June 20th issues. In a case originating in King County Superior Court Judge Jay V. White's courtroom in 2001, the U.S. Supreme Court had handed down a unanimous decision the day before affirming Judge White's ruling, and the decisions of the Washington Court of Appeals and Washington Supreme Court, finding that recorded 911 "emergency" calls are admissible in criminal trials even where the victim/caller does not testify.1
The case involved a recorded 911 telephone call on Feb. 1, 2001, with Michelle McCottry, who was in the midst of a domestic dispute with her former boyfriend, Adrian Davis. The State charged Davis with felony violation of a domestic no-contact order. McCottry could not be located by the State and, thus, did not testify at Davis's trial.2 The two police officers called by the State could not testify as to the cause of McCottry's injuries. Over the objection of Davis's attorney, which was based on the Sixth Amendment's Confrontation Clause3 and the hearsay nature of the evidence, Judge White admitted the recorded conversation between McCottry and a 911 operator under the excited utterance exception to the hearsay rule. Davis was convicted.4
The Washington Court of Appeals affirmed, relying on the reliability test adopted by the U.S. Supreme Court in Ohio v. Roberts,5 as applied to excited utterances, and such Washington authority as State v. Palomo,6 in which the Supreme Court rejected "the broad proposition that the confrontation clause bars admissibility of hearsay statements unless unavailability of the declarant is shown."
Before the Washington Supreme Court issued its opinion in Davis, however, the U.S. Supreme Court decided Crawford v. Washington,7 in which the high court "overturned the Roberts' rule that an out-of-court statement was admissible as evidence without confrontation as long as it fell within a firmly rooted hearsay exception or carried other indicia of trustworthiness and reliability, stating that Ôthe [Roberts'] framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations.'"8
Drawing largely upon Crawford, the Washington Supreme Court in Davis held that "emergency 911 calls should be assessed on a case-by-case basis and that the statements made should be individually evaluated for admissibility in light of the confrontation clause."9 As noted in Justice Scalia's opinion, the Washington Supreme Court also held that "overwhelming untainted evidence" supported Davis's conviction and that "any error in admitting Ôtestimonial' statements without cross-examination was harmless beyond a reasonable doubt."10
As to the admissibility of McCottry's 911 conversation, the Washington Supreme Court stated:
Generally, an emergency 911 call is not of the same nature as an in-custody interrogation by police [as in Crawford]. Such an emergency call is not the functional equivalent of uncross-examined, in-court testimony. Even though a call to 911 involves personnel associated with the police, the 911 operator is not a police officer. Moreover, the purpose of the call is generally not to "bear witness." The call must be scrutinized to determine whether it is a call for help to be rescued from peril or is generated by a desire to bear witness.
A 911 call is typically initiated by the victim, not the police. Even though an emergency 911 call may assist police in investigation or assist the State in prosecution, where the call is not undertaken for those purposes, it does not resemble the specific type of out-of-court statement with which the Sixth Amendment is concerned.11
Based on this analysis, the Washington Supreme Court found that the call with McCottry call was not a "testimonial statement."
Justice Scalia also took his lead from Crawford, noting that in Crawford the Court held that the Confrontation Clause "bars Ôadmission 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.'"12 Echoing the Washington Supreme Court, Justice Scalia noted that the "critical portion" of the Crawford holding "and the portion central to resolution of the two cases now before us, is the phrase Ôtestimonial statements.'"13
As stated by Justice Scalia:
Only statements of this sort [i.e., "testimonial statements"] cause the declarant to be a "witness" within the meaning of the Confrontation Clause. 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.14
The challenge presented to the Court in Davis, Justice Scalia wrote, was "to determine more precisely which police interrogations produce testimony," an opportunity that was not presented to the Court under Crawford's unmistakable facts: the statement at issue was made and recorded while the declarant was in police custody and had been given a Miranda warning.15 Avoiding the tiger trap of "attempting to produce an exhaustive classification of all conceivable statements . . . as either testimonial or nontestimonial," Justice Scalia let it suffice to hold:
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.16
Where the facts of Crawford "spared us the need to define what we meant by Ôinterrogations,'" the case before the Court, Justice Scalia wrote, "does not permit us this luxury of indecision." While the inquiries of a 911 operator "are an interrogation in one sense," Justice Scalia noted, they do not qualify as such, as found in Crawford, "under any conceivable definition."17 The charge before the Court, therefore, was to decide "whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies."18
As stated in Crawford, Justice Scalia noted that the Confrontation Clause focuses on testimonial hearsay and "Ôwitnesses' against the accused," i.e., "those who Ôbear testimony.'" "A limitation so clearly reflected in the text of the constitutional provision," wrote Justice Scalia, the strict constructionist, "must fairly be said to mark out not merely its Ôcore,' but its perimeter."19
After a dissertation on case law to support the above premise, Justice Scalia had chewed through the shell to the nut: "whether, objectively considered, the interrogation [in Davis] . . . produced testimonial statements."20 The Court found that it did not. Rather, "McCottry was speaking about events as they were actually happening" and her "call was plainly a call for help against bona fide physical threat."21
[T]he 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.22
The companion case to Davis, Hammon v. Indiana, came out differently. In Hammon, the Court - with Justice Thomas dissenting - effectively held that the admissibility of a 911 call cuts off when the emergency ends, if the victim/caller does not testify. This, according to Davis's attorney, Jeffrey Fisher, at least means, "Once the event is over, then the Constitution does kick in. That is a very important holding - and one that's going to strengthen criminal defendants' rights in many jurisdictions."23
King County Prosecuting Attorney Norm Maleng called the Davis decision "an important ruling for the rights of victims in domestic violence and other criminal cases" and said 911 calls have "always been important evidence."24
Gene Barton is the editor of the Bar Bulletin. Barton is a shareholder with Karr Tuttle Campbell in Seattle, where he has a general commercial litigation practice. He can be reached at 206-224-8030 or gbarton@karrtuttle.com.
1 See State v. Davis, King County Superior Court Cause No. 01-1-02794-4; 116 Wn. App. 81, 64 P.3d 661 (2003); 154 Wn.2d 291, 111 P.3d 844 (2005). The U.S. Supreme Court slip opinion is Davis v. Washington, No. 05-5224, 547 U.S. ___ (2006). The case was argued before the U.S. Supreme Court by King County Deputy Prosecutor James Whisman, on behalf of the State, and Jeffrey Fisher, on behalf of Davis.
2 154 Wn.2d at 296.
3 "In all criminal prosecutions, the accused shall enjoy the right É to be confronted with the witnesses against him."
4 See 116 Wn. App. at 84Ð86.
5 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L.Ed.2d 597 (1980).
6 113 Wn.2d 789, 794, 783 P.2d 575 (1989), cert. denied, 498 U.S. 826 (1990).
7 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford arose out of a 1999 decision by Thurston County Superior Court Judge Richard A. Strophy. See State v. Crawford, 147 Wn.2d 424, 54 P.3d 656 (2002).
8 154 Wn.2d at 298Ð99 (quoting Crawford, 541 U.S. at 63).
9 Id. at 295.
10 See id.
11 Id. at 301.
12 Davis v. Washington, No. 05-5224, slip op. at 6.
13 Id.
14 Id.
15 See id. at 6Ð7.
16Id. at 7.
17Id. at 8.
18 Id.
19 Id. at 8Ð9.
20 Id. at 11.
21 Id. at 12 (emphasis supplied by Court).
22 Id. at 13 (emphasis supplied by Court).
23 Tracy Johnson, "911 Calls Backed as Evidence," Seattle Post-Intelligencer, June 20, 2006.
24 Id.
