547 U.S. 813 (2006)
On February 1, 2001, Michelle McCottry placed a 911 call reporting that her former boyfriend Adrian Davis was beating her with his fists inside her house.1 The 911 operator asked a series of questions about the location, whether weapons were involved, whether Davis had been drinking, his full name and middle initial, and his current actions.2 McCottry answered that Davis had just run out the door and was leaving in a car.3
Police arrived within four minutes, observed fresh injuries on McCottry's face and forearm along with her shaken state, and noted her efforts to gather her belongings and children.4 Davis was charged with felony violation of a domestic no-contact order. At trial McCottry did not appear, and the court admitted the 911 recording over Davis's Confrontation Clause objection, leading to his conviction, which the Washington Court of Appeals and Supreme Court affirmed.5
On February 26, 2003, police responded late at night to a reported domestic disturbance at the home of Hershel and Amy Hammon.6 Upon arrival Amy Hammon appeared somewhat frightened on the front porch but initially stated nothing was the matter.7 After officers entered and separated the couple, one officer questioned Amy in the living room while the other stayed with Hershel in the kitchen.8 Amy described a verbal argument that became physical, including Hershel breaking the furnace, lamps, and phone, shoving her into broken glass, and punching her in the chest.9 Amy then completed and signed a battery affidavit stating those events.10
Hershel was charged with domestic battery and probation violation. At his bench trial Amy did not appear, and the court admitted the officer's recounting of her statements as excited utterances along with the affidavit over objection.11 The Indiana Court of Appeals affirmed Hershel's convictions, and the Indiana Supreme Court held Amy's oral statements nontestimonial while finding the affidavit testimonial but its admission harmless beyond a reasonable doubt.12
The United States Supreme Court granted certiorari in both Davis v. Washington and the consolidated Hammon v. Indiana cases to address the testimonial character of the statements.13 The evidence introduced at each trial consisted solely of the out-of-court statements, as neither victim appeared to testify and no other witnesses could identify the assailant or describe the cause of the injuries.14
Whether the Confrontation Clause applies only to testimonial hearsay?15
Yes. The established facts show that both the 911 recording from Michelle McCottry and the statements plus affidavit from Amy Hammon were out-of-court declarations offered at trial without the declarants appearing.18 Under the rule the Clause reaches only those statements that qualify as testimonial, so the nontestimonial 911 statements were properly admitted while the testimonial crime-scene statements were not.19
The Confrontation Clause applies only to testimonial hearsay.
Related opinions on this issue
Justice Ginsburg joins the Court's opinion. She writes separately to emphasize that the Confrontation Clause is a procedural guarantee that ensures reliability through the crucible of cross-examination.20 When the primary purpose of an interrogation is to establish past facts for prosecution, the statements are testimonial and the Clause requires confrontation.21
The distinction the Court draws today between emergency and non-emergency questioning is consistent with that understanding of the Clause as a procedural protection rather than a substantive reliability rule.22
Whether statements made during a 911 call under circumstances indicating an ongoing emergency are testimonial?23
Statements made during police interrogation are nontestimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.24 They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.2526
No. In the established facts of Davis v. Washington the 911 operator asked McCottry about the location, weapons, the assailant's identity and actions while Davis had just fled the house, and the questions were necessary to resolve the present emergency so that police could respond.27 Because the primary purpose was to meet an ongoing emergency the statements were nontestimonial and admissible without confrontation.28
Statements made during a 911 call under circumstances indicating an ongoing emergency are not testimonial.29
Whether statements made to police officers at a crime scene after the immediate emergency has ended are testimonial?30
Statements made to police officers at a crime scene are testimonial when the circumstances objectively indicate that there is no ongoing emergency.31 The primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Yes. In the established facts of Hammon v. Indiana the officers arrived after the disturbance, separated the couple, questioned Amy Hammon in the living room about what had occurred, and had her complete and sign a battery affidavit describing prior events.32 Because the primary purpose was to investigate past criminal conduct the statements and affidavit were testimonial and their admission without confrontation violated the Clause.33
Statements made to police officers at a crime scene after the immediate emergency has ended are testimonial.34
Related opinions on this issue
Justice Thomas concurs in the judgment for the Davis 911 statements but dissents from the Hammon disposition.35 He contends that the proper test requires formalized testimonial materials such as affidavits, depositions, and confessions.36 Neither the 911 call nor the crime-scene questioning in these cases meets the requisite degree of solemnity under that standard.37
The Court's primary-purpose inquiry is unpredictable and disconnected from the historical abuses the Clause was meant to prevent.38 He would affirm both judgments because the statements lack the formality that triggers Confrontation Clause protection.39