The U.S. Supreme Court starts its new term in October. Before we get into this year's term, there are two companion cases from the end of last year's term we should look at. Davis v. Washington and Hammon v. Indiana are a pair of domestic violence cases, decided in a single opinion, with significantly different outcomes for each of the two victims.
There is a dismaying dynamic to many domestic violence cases. The victims are often too terrified to show up in court to testify against the abusers. They fear that, if they do show up to testify and the defendant gets off or gets out, they and/or their children will be harmed -- sometimes fatally.
Other times victims won't testify because they feel so economically dependent on the abuser they feel they must stay in the relationship, however abusive, in order to survive.
Prosecutors have been trying to find ways to convict abusers without having victims testify. One way has been to use victims' 911 calls as evidence. Another way has been to have police testify about statements by victims during their investigation.
The problem is these trial tactics are in tension with the confrontation clause of the Sixth Amendment to the U.S. Constitution, which states, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him."
That clause has been interpreted quite literally. An accused has the right to look his accuser in the eye, in person, at the trial. The other purpose of the clause is to ensure the right to cross-examine witnesses.
A statement made out of court, known as hearsay, usually can't be admitted into court when the person who made the statement isn't at the trial, because statements not made under oath are considered unreliable and because the declarant isn't subject to cross-examination. But there are exceptions.
So does the confrontation clause stand as a hurdle to the prosecution of domestic violence cases where the victim doesn't show up to testify? The high court came to different conclusions in the companion cases.
In Davis v. Washington, Michelle McCrotty made a 911 call, describing a fight with her ex-boyfriend, Adrian Davis. She hung up before anyone answered, but the 911 operator called back and got her to describe what was clearly an incident in progress.
By the end of the call, McCrotty said Davis was running out the door after he'd hit her.
The police arrived quickly and found McCrotty very shaken up, with obvious injuries to her face and arm. McCrotty had a protective order against Davis. She had been trying to collect her children's and her own belongings to leave when the incident occurred.
Although McCrotty initially cooperated with the prosecutor's office, she couldn't be found at the time of trial. The only evidence connecting Davis to her injuries was the 911 tape, which was admitted under an exception to the hearsay rule known as an "excited utterance." Davis was convicted. On appeal, he argued his right of confrontation under the Sixth Amendment was violated. The Supreme Court of Washington upheld his conviction.
In Hammon v. Indiana, the police responded to a domestic disturbance at the Hammon residence. They found Amy on the porch, "somewhat frightened" but denying that anything was wrong. She gave police permission to enter the house. Hammon's husband, Hershel, told police they'd had an argument and that nothing had become physical.
Hershel kept trying to interpose himself into Amy's conversation with the police but was rebuffed. Amy ultimately signed a battery affidavit, detailing an account of physical violence against her and her daughter. Hershel Hammon was charged with domestic battery.
Amy was subpoenaed to his trial but failed to appear. Over Hershel's objections, the officer's testimony reporting Amy's oral statements and Amy's written affidavit were admitted under two different exceptions to the hearsay rule. Hammon was convicted, and the Indiana Supreme Court upheld his conviction.
The U.S. Supreme Court accepted both cases together to determine the admissibility of the 911 tape in the Davis case and Amy's oral and written statements to police in the Hammon case. The key to determining admissibility was whether the statements were "testimonial." In 2004, in Crawford v. Washington, the court had held that, to meet the requirements of the confrontation clause, out-of-court testimonial statements couldn't be used at trial unless the person who made the statements was available to be cross-examined.
Now, in these domestic violence cases, the court had to define "testimonial." The justices unanimously agreed, in an opinion written by Antonin Scalia, that statements are non-testimonial "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." All the justices agreed McCrotty's statements on the tape were cries for help in an ongoing emergency; she was not acting as a witness.
Statements are testimonial when "there is no such ongoing emergency, and ... the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Amy Hammon's statements to police were to help them investigate a possible crime. In no immediate danger, she was recounting past events. Her statements to police, eight justices agreed, were testimonial, and in her absence from the trial, should have been excluded from the evidence used to convict her husband.
Justice Clarence Thomas, not exactly known as the feminists' knight in shining armor, dissented on this last point. He would find Amy Hammon's statements non-testimonial and allow them in evidence at trial.
Perhaps in recognition of the unique nature of domestic violence cases, the court recognized an exception to the right of confrontation in cases such as Amy Hammon's.
"This particular type of crime," Scalia wrote, "is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial."
The exception is called "forfeiture by wrongdoing." If the defendant causes the witness' absence from the trial by intimidation, threats or the like, then the defendant forfeits his Sixth Amendment confrontation rights and the testimonial statements of an absent witness can come into evidence. The high court sent the Hammon case back to Indiana to see if there were such a forfeiture. On Sept. 7, the Indiana Supreme Court sent the case back to the trial court to resolve this issue.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.