Davis v. Washington – U.S. Supreme Court – Confrontation clause

Today the U.S. Supreme Court decided Davis v. Washington (Slip Opinion 05-5224) and Hammon v. Indiana (Case No. – 05-5705, which those of us that deal with any cases involving domestic violence have been anxiously awaiting for.

You may recall what I wrote about Pitts v. State here.  Pitts dealt with 911 calls and their admissibility when a witness was unavailable to testify at trial. The Crawford v. Washingtonramifications of those calls were decided by the Georgia Court of Appeal in Pitts.  Click the link above to review that discussion.

Today the U.S. Supreme Court decided two cases that were almost exactly like Pitts.  In a joint opinion, the Court issued a ruling that seems like it would have affirmed, at least the judgment of the Georgia Court of Appeals had the Pitts case gone up that far.  Scalia, writing for the Court, held that when the statement is made for the purpose of gathering evidence of past conduct to assist with a future prosecution, and there is no ongoing emergency, the statement is testimonial and inadmissible.  If the statement is made for the purpose of stopping an emergency in progress, then it is nontestimonial and admissible.

It is unclear what will happen with the statements that have mixed testimonial and nontestimonial statements in them.  What seems clear to me is that they would go as far as the Georgia Court of Appeals did on some of the statements in the Pitts case.  The Georgia Court of Appeals said that a statement in Pitts (wife said husband was violating his parole) “came close” to being testimonial, but that it really wasn’t because she was just explaining.  I think this statement would be viewed as testimonial by the U.S. Supreme Court.  Past conduct, even very “fresh reports” of past conduct are most likely testimonial.  The Court seems to be serious about an accused’s confrontation rights, but only time will tell.