In Davis v. Washington, (decided with Hammon v. Indiana) Nos. 05-5224 & 05-5705 (June 19, 2006), the Court held that, for purposes of determining whether a statement is "testimonial" and therefore covered by the Confrontation Clause rights recognized in Crawford, statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. The statements 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.
Applying its test to the 911 call at issue in Davis, the Court noted that this call is ordinarily designed primarily to describe current circumstances requiring police assistance. In Davis, the declarant was speaking of events as they were actually occurring. She was facing an ongoing emergency. The statements elicited were necessary to enable the police to resolve a present emergency, rather than to learn what happened in the past. Moreover, the frantic answers on the phone indicate that the primary purpose of the call was to obtain assistance, and the declarant was not acting as a witness or testifying.
By contrast, the statements in Hammon were testimonial. The declarant gave the statements to police at her home, while no emergency was in progress. The officer who was asking questions was trying to determine what had happened, not what was happening. The declarant was physically separated from the defendant when she gave the statements, and her statements narrated how potentially criminal past events began and progressed. The Hammon statements were unlike the statements in Davis, where the declarant was unprotected by police, and apparently in immediate danger, seeking aid.
The Court remanded the Hammon case to the Indiana Supreme Court for a determination whether the forfeiture by wrongdoing doctrine meant that the defendant had forfeited his constitutional right to confrontation.
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