Today, the United States Supreme Court released its anticipated decisions to Davis v. Washington, and its companion case, Hammon v. Indiana, (Case Nos. 05-5224 and 05-5705, respectively, soon to be cited as 547 U.S. (2006). The case was a clarification of the Court's ruling about the Sixth Amendment right to confrontation as articulated in Crawford v. Washington, 541 U.S. 36 (2004) in which the Court overruled, in part, Ohio v. Roberts, 448 U.S. 56 (1980).
Crawford, a decision written by Justice Scalia, derided Roberts and its unreliable, inconsistent, unpredictable progeny for permitting the testimonial evidence of an unavailable witness because it met some legal standard of "reliability" despite no constitutional or legal historical basis that the right to confrontation contained such a "reliability" exception.
In tearing apart the precedent of Roberts, the Court stated:
"Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." Certainly none of the authorities discussed above acknowledges any general reliability exception to the common law rule.
"Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."
With Roberts effectively dead, where evidence is testimonial in nature, reliability is not the key to admissibility, but the presence of the opportunity to confront the witness about their testimonial evidence by the Defendant was key. The only unanswered question left by Crawford was: What constitutes testimonial evidence?
Although that question left unanswered, legal scholars thought they understood the Court's admonishment to the courts when it stated:
"The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by "neutral" government officers. But even if the court's assessment of the officer's motives was accurate, it says nothing about Sylvia's perception of her situation. Only cross- examination could reveal that."
And now we come to today's Davis decision where the revolutionary thoughts of Crawford are replaced with the practicality considerations that led to the confrontation clause disaster that was Roberts.
In Davis, the relevant statements at issue was the recorded statements the alleged victim made during her 911 call where she identified Davis as her attacker. However, the victim did not appear at trial, and the only evidence that Davis was the cause of her injuries was the recorded 911 conversation. Davis objected to the playing of the tape as it was being offered as testimony of the victim in a manner in which Davis had no opportunity to cross-examine her.
The United States Supreme Court upheld the playing of the 911 tape and held that there was no Sixth Amendment violation because the tape was not testimonial (even though it was clearly played by the State for the purposes of substituting the victim's actual testimony.)
By classifying the tape as "non-testimonial" the Court committed the same sin it had committed in Roberts. Although the Court agreed that the statements were made in the course of a police interrogation, the Court held that they were not testimonial "when made . . . under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."
If there is any historical precedent to understand the Framers' intent in protecting the right of confrontation to be subject only to those statements made when police are not responding to an ongoing emergency, then neither the Court's decision in Davis or Crawford cites it. What Crawford did state was:
"First, the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's, that the Marian statutes invited, that English law's assertion of a right to confrontation was meant to prohibit, and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind."
The civil law mode of criminal procedure allowed justices of the peace or other officials to examine suspects and possible witnesses before trial and then, occassionally, those examinations were read in court in lieu of live testimony.
How does that practice, which Crawford strongly condemned, different from the practice playing a 911 tape as in Davis? In the majority opinion written by Justice Scalia, there is no direct answer, but an inference that a statement made during the contemporaneousness of an emergency is somehow not "testimonial" but the same statement made a mere few minutes later, magically becomes testimonial even though it is made by the same speaker, to the same listener, and for the same purpose.
Of course, there is no historical precedent for the court's new "emergency" non-testimonial finding because the ability for the government to learn and investigate crimes as they occurred was largely impossible given the techonology at the time of the Sixth Amendment's confrontation clause's historical founding.
However, if a hypothetical inquistitor at Sir Walter Raleigh's trial (the focus of much of Court's thoughts as expressed by Justice Scalia in Crawford), were asked, the inquistitor would no doubt say that the statements made by witnesses against Sir Raleigh were made during the ongoing emergency of the State trying to respond to an alleged treasonous plot.
Instead, by finding the statements in Davis to be non-testimonial, the Court has essentially found that as technology makes it easier and quicker for the State to learn what its citizens are doing, that technology waters down the protections that have been the bedrocks of our judicial system.
Davis ignores the history of the right to confrontation that were so revered in Crawford, and ignores the basic fact that why a statement was made is not as key to whether it is testimonial as much as how the statement was used. To Davis, the issue was not when the statement was made, but the fact that he was being convicted by the testimony of a tape recorder instead of a live witness who should have been available at trial.