“Testimonal” Evidence in DV Context Defined – Davis v. Washington

As expected, The United States Supreme Court today provided further explanation of the concept of “testimonial” statements in the context of the confrontation clause of the Constitution.

By way of background, in 2004, Justice Scalia wrote for the Court in Crawford v. Washington, 541 US 36 (2004) that the confrontation clause bars the admission of testimonial statements of a witness who does not appear at trial and who has not previously been subject to cross-examination.

In today’s opinion (also written by Justice Scalia), Davis v. Washington, the Court considered statements by victims of two domestic violence cases, one from Washington and one from Indiana. In the first fact pattern presented to the court, the victim made statements to a 911 operator during the course of a domestic violence assault. When she subsequently failed to appear at the trial of her tormentor, the 911 tape recording of her statement was used by the prosecution at trial.

In the second fact pattern, a domestic violence victim made statements under oath to police officers who came to her house to investigate a fresh domestic violence incident. When she later failed to appear at trial, her sworn statement was introduced as evidence by the prosecution.

In each case, the hearsay statements of the victims were admissible under state law exceptions to the hearsay rule. Moreover, in each case, the defense objected to the admission of the statements on confrontation clause grounds.

The Justices ruled that a statement is non-testimonial if, from an objective standpoint, it was given for the primary purpose of helping police deal with an ongoing emergency (as in the first case). By contrast, a statement is testimonial if, from an objective standpoint, it was not made as a result of an ongoing emergency and the primary purpose of the statement was to allow the police to establish or prove past events potentially relevant to a criminal prosecution.

Download a copy of Davis v. Washington.

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