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Admissibility of Victimís Statements and the Sixth Amendment
By Brian S. Batterton

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Written For and Distributed by Public Agency Training Council.
For duplication & redistribution of this article, please contact the Public Agency Training Council by phone (1.800.365.0119), or by email (newsletter@patc.com).


One of the rights guaranteed under the Sixth Amendment to the United States Constitution is the right of a suspect to confront witnesses against him or her.  In 2004, the United States Supreme Court decided Crawford v. Washington which has had a significant impact on the admissibility of victim statements in court proceedings when the victim is unavailable or unwilling to testify.i  In Crawford, the suspect was arrested and tried for the assault and attempted murder of his wife.  The victim refused to testify by asserting the marital privilege.  The prosecution attempted to use statements that she made to officers after her husband was arrested.  The Supreme Court held that the Confrontation Clause bars the government from introducing testimonial statements at trial against a person without calling the original speaker to testify in court, or, if the original speaker is unavailable, the testimonial statement could only be used if they were made at a time when the defendant had a prior opportunity to cross examine that speaker.

The Supreme Court did not define what exactly a “testimonial statement” was but did provide later clarification in case law.  The two cases that provide this clarification are Davis v. Washington and its companion case, Hammon v. Indiana which were decided together.ii  In Davis, the Supreme Court held that the statements made by the victim of a domestic dispute to the dispatcher were not “testimonial” and were therefore, admissible even thought the victim would not testify in court.  In making this determination, the court reasoned that the purpose of the dispatcher’s questions during the 911 call were to describe a situation requiring police assistance rather than to gather evidence for the prosecution of a crime.  The Supreme Court then noted four points that made the statements Davis different from the statements in Crawford.  First, in Davis, the victim’s statements to 911 were describing events as they were actually taking place, rather than events from the past, as in Crawford; second, Davis was actually a 911 call for help due to an actual physical threat, where Crawford was an interview to establish facts for prosecution; third, the statements in Davis were necessary to resolve an ongoing emergency; and fourth, in Crawford, the statements were made in a calm environment after the emergency had passed, whereas in Davis the environment consisted of a frantic, ongoing emergency.iii  Thus, the admission of the 911 tape did not violate the Confrontation Clause of the Sixth Amendment.

Hammon also involved a domestic dispute but the Supreme Court reached the opposite result.  In Hammon, the police responded to a domestic dispute and found the victim sitting on the front porch.  She told the police that nothing was wrong although she appeared scared.  The police got her consent to enter her house and found the victim’s husband.  One officer stayed with the husband while the other re-interviewed the victim.  She told the officer that she and her husband had a violent argument where he had hit her and threw her to the ground.  She wrote and signed an affidavit to these facts and her husband was arrested.  She later refused to testify at trial and her out-of-court statements to the police were admitted at trial.  The Supreme Court eventually took this case, which it decided with Davis.  However, here, the court held that that the admission of the statements violated the defendant’s right under the Sixth Amendment to confront witnesses against him.   In this case, when the police arrived the situation was calm, the emergency (the fight) was over, and there was no immediate threat to the victim.  The Supreme Court reasoned that in questioning the victim, the police were not trying to determine what was presently happening, but rather what had happened in the past.  Thus, the primary purpose of the police questioning was to investigate a possible crime and gather evidence.  This made the statements “testimonial,” and since the victim would not testify thus, making her subject to cross examination, the statements were not admissible.iv

On November 15, 2007, the District of Columbia Court of Appeals decided a case that had facts similar, but not identical, to Davis and Hammon.   In Long v. United States, an officer on patrol was flagged down by a male victim who was bleeding from a large laceration on his face and was “covered in blood.”v  This victim was described by the officer as very upset and “hyper.”  The officer asked him “What happened?” and “Who did this to you?”  The victim did not respond to the questions but rather exclaimed, “Look what she did to my face.”  A back up officer the victim said, “Look what the bitch done, she cut my face.”  After an ambulance arrived and while paramedics were attempting to convince the man to go to the hospital, a woman, Long, emerged from an alley.  The victim exclaimed “There she is!”  He also said, “You hit me in my stomach, you beat me, you slashed my tires.  I’m tired of you beating me.” 

The woman, Long, was later tried for assault and attempted possession of a prohibited weapon.  The victim did not testify at trial, but three statements were admitted anyway.  The admitted statements were “Look what she did to my face;” “Look what the bitch done, she cut my face;” and “There she is!”  Long appealed and argued that since the victim did not testify, the use of his statements violated her right to confront witnesses against her under the Sixth Amendment.

The District of Columbia Court of Appeals, in analyzing the statements, had to determine the purpose of the statements of the victim.  If the statements were testimonial in nature, they would be inadmissible.  First, the court looked at Crawford and its definition of “testimonial.”  A statement is “testimonial” if it is made for the purpose of establishing or proving some fact, or if it is a formal statement to governmental officers.vi  The court then looked at Davis and Hammon and determined that while this case is somewhere between the two, it is closer to Davis.  Here, the court held that the statements of the victim in response to the officer’s questions were made to enable the police to respond to an ongoing emergency and not to establish or prove past events for a later prosecution; as such, the statement of the victim were admissible against Long.

The court reasoned that here, the police were facing an ongoing emergency.  The officer came upon a man who was bleeding profusely and did not know the cause of the injury.  Thus, saying “What happened?” and “Who did this to you?” were necessary to enable the officer to react accordingly to the ongoing emergency.  The court went on to state that any reasonable observer who saw the victim bleeding severely from a large cut would conclude the victim was facing an ongoing emergency. 

Along the same reasoning, the court further opined that the questions posed to the victim were not asked during a calm and structured interview, but rather during an emergency where the immediate task was to determine what took place and take appropriate action to prevent further harm to the victim or officer.  The questions never strayed from clarifying the event and providing information that would enable the officer to resolve the emergency. 

Another reason that the court found that the statements were not testimonial is the fact that they were more “excited utterances” than responses to the officers questions.  The officers stated that the victim was not responsive to there questions.  The statements made by the victim, while occurring after the officers questions, were not directly responsive to the questions. 

The court then summed up their rationale for admitting the statements by noting that the statements were made during the course of an ongoing emergency, they were not formal statements to the police during an interview, and they were made for the primary purpose of helping the police appropriately respond to an emergency.  Thus, the statements were not “testimonial” and therefore were admissible.

In conclusion, officers should realize that some statements, particularly those that are testimonial in nature, made to them at the scene of a crime may not be later admissible in court if the speaker is unwilling to testify in court.  Because of the distinctions in Crawford, Davis, and Hammon, officers should clearly document in their incident reports, the events surrounding the statements.  For example, if the emergency is ongoing during the statements, describe in detail the facts surround the events that illustrate the ongoing emergency.  Likewise, 911 calls can provide evidence later in court if a victim refuses to testify.  However, the 911 call sought to be used in court must be placed during an ongoing emergency rather than after the situation has calmed and the emergency has passed.  If an officer suspects that a victim may later be unwilling to testify in court, contact the 911 call-taker and determine the nature and circumstances of the call for service.  If the emergency was ongoing at the time of the call, preserve the recording for later use in court.  Likewise, if an officer suspects a victim may later be unwilling to testify in court, a prosecutor may be able to have the victim testify at an earlier stage in the prosecution, such as a probable cause hearing, where the victim is subject to cross examination.  If this takes place, the victim’s statements will most likely be admissible in a later court proceeding, even if the victim then refuses to testify, because the defendant would have been afforded an opportunity to cross examine the victim concerning the statements at issue.

Any further questions on this topic can be directed to the Public Agency Training Council or your local legal advisor or prosecutor.


i 541 U.S. 36 (2004)

ii 126 S. Ct. 2266 (2006)

iii Long v. United States, No. 03-CM-10, (D.C. App. 2007)(citing Davis, 126 S. Ct. at 2276-2277)

iv Id.(citing Hammon, 126 S. Ct. 2278)

v Long v. United States, No. 03-CM-10, (D.C. App. 2007)

vi Id.(citing Crawford, 541 U.S. at 51)

 

 

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