Davis v. Washington, Hammon v. Indiana

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  • Violence Against Women and Girls
  • Authored Amicus Brief
2006

Determined if victim's statements made to 911 or police can be used as evidence in criminal prosecutions where victim does not testify without violating a criminal defendant's rights under the Confrontation Clause of U.S. Constitution.

In a win for domestic violence victims, the Supreme Court ruled that 911 calls and other statements to the police to help them address an emergency situation may be used in a criminal prosecution even if the victim does not testify.

Summary of the Case

The question posed by these cases was whether 911 calls and other statements made to the police should be considered "testimonial." This question arose because in 2004, the Supreme Court decided a case called Crawford v. Washington, 541 U.S. 36 (2004), which held that in criminal prosecutions, the Confrontation Clause (found in the Sixth Amendment of the Constitution) bars admission of out-of-court "testimonial" statements by witnesses who are not testifying at the trial and have not previously been cross-examined by the defendant. In the short time since it was decided, the Crawford decision had already had a devastating impact on the prosecution of domestic violence cases.

Our Role in Case

Legal Momentum, together with more than fifty other domestic violence advocacy organizations, filed an amicus brief in these Supreme Court cases (consolidated for purposes of appeal) to show how essential it is that such statements can be admitted in a subsequent criminal prosecution. As detailed in the statements of victims, advocates, and prosecutors included in our brief, this ruling is particularly important for domestic violence cases because victims are often too traumatized, terrified, or otherwise unable to testify. Our brief also argued that defendants who scare their victims into refusing to testify at trial should forfeit any constitutional confrontation rights they otherwise would have. 

Decision

The Court ruled that 911 calls and other such cries for help in addressing ongoing emergencies can be used in prosecuting criminal defendants, even when the victim does not participate in the trial. Significantly, the Court acknowledged that domestic violence cases are "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial." The Court also agreed with the argument in our brief that defendants who scare their victims into refusing to testify should forfeit any constitution confrontation rights, making clear that defendants who "undermine the judicial process by procuring or coercing silence from witnesses and victims" forfeit these rights.

However, the Court's holding that statements made to the police after an "emergency" situation has been resolved are not admissible if they are intended to gather evidence for future prosecution will likely continue to place domestic violence victims, and other crime victims, in danger. As Justice Thomas pointed out in a dissent to this portion of the opinion, police responding to a report of a crime typically ask questions both to address the emergency situation and to gather evidence.

Considerations for Future Advocacy

Future advocacy will be necessary to establish that a situation may continue to be an emergency even if the specific incident that precipitated a 911 call to the police appears to have concluded. For example, if the defendant is not taken into police custody, he may, after the police leave, take out his anger at the victim for talking to the police by further abusing her. Future cases will also have to appropriately identify those in which a defendant has forfeited his confrontation clause rights by silencing his victim.

The brief was a joint effort of Legal Momentum, DV Leap, Steptoe & Johnson, LLP, and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.