An Investigator’s Road Map to Out of Court Statements

Was Statement made during an Ongoing Emergency-in attempt to Resolve Emergency?

Was Statement made after Emergency-in effort to prove Past Events for Criminal Prosecution?

What was Defendant’s Purpose in Murdering the Witness?

United States Supreme Court Provides Further Rules [’07-’08 Term]

Over the last five years, the United States Supreme Court has looked at a number of cases involving the confrontation clause to the United States Constitution and how that clause impacts the admissibility of statements made to law enforcement in cases where, by the time of trial, the witness who made the statement is unavailable to trial.

In police academy classes throughout the country, law enforcement officers are trained that any out of court statement made by a witness or victim  is “hearsay” and cannot be used by the prosecution against a defendant unless it meets one of the exceptions to hearsay that have been recognized by the courts.  Two of the major exceptions that have been taught to law enforcement officers include the spontaneous utterance and the dying declaration.  The dying declaration is still a viable exception as long as the person giving the statement is under the valid belief that they are dying and, they actually die.  The spontaneous utterance has become a much more difficult statement to deal with in light of recent decisions by the Court.  Additionally, even where the defendant has killed the potential witness against them thereby making them unavailable for court, the statement may not be admissible depending on the defendant’s motive in murdering the witness.

In Davis v. Washingtonⁱ and Hammon v. Indianaⁱⁱ the United States Supreme Court decided companion cases which involved the same issue but resulted in different outcomes.  The issue before the Supreme Court was whether prosecutors could use out of court statements made to the police by crime victims in cases where the victims refused to testify at the criminal trial of their assailants.  The argument by the defendants in these cases was that if the victim did not appear in court and take the witness stand, the defendant would have no opportunity to cross-examine the witness against them.

The determination of whether the statement is admissible against the defendant will be determined by the purpose for which law enforcement sought the information and the circumstances under which the information was obtained.  Both of these cases began with domestic violence.  The cases are dealt with separately here for purposes of clarity.

The facts in the Davis case involved a 911 call. Michelle McCottry called 911 while being assaulted by her boyfriend, Adrian Davis, but the connection was terminated when the 911 operator answered.  The 911 operator reversed the call and McCottry answered.  The operator asked a series of questions regarding what was going on.  McCottry responded that her boyfriend was there and “jumpin on me again.”  The operator then asked a series of questions which, among other things, established the identity of the assailant as Adrian Davis as well as establishing that Davis was assaulting McCottry.

Davis was prosecuted for assaulting McCottry.  As with many domestic violence cases, the victim, McCottry, did not appear in court, however the statements she made to the dispatcher were introduced against Davis to establish that he was the assailant and that he had assaulted McCottry.  Davis appealed his conviction, arguing that since McCottry did not appear and testify, his right, under the 6th Amendment to confront and cross-examine the witnesses against him had been violated.

In reviewing the case, the Court indicated that a determination of whether the statements could be used when the victim/witness did not appear, but was available, would depend on whether the statements were testimonial or nontestimonial.  In distinguishing the difference between testimonial and nontestimonial statements the Court asserted:  “Statements are nontestimonial 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. 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.” The Court concluded that the questioning of McCottry by the dispatcher was asked in an effort to assist the responding officers in dealing with an ongoing emergency and not to investigate a past event in an effort to develop a criminal prosecution.  As such the statements made by McCottry to the 911 operator were nontestimonial and therefore admissible.

The Court distinguished the statements made by McCottry from statements used in the prosecution of Hershel Hammon in Hammon v. Indiana. Hershel Hammon was convicted of domestic battery on his wife, Amy Hammon.  Amy did not appear at trial, but a statement she provided to the police on the night of the incident was introduced at Hershel’s trial.  Hershel appealed his conviction arguing that he had been deprived of his ability to confront and cross-examine the witness, Amy, against him.

In Hammon, police responded to a domestic disturbance.  When they arrived, Amy was alone on the front porch and, although she appeared frightened, she told officers that nothing was wrong.  Amy allowed the officers into the house.  The officers observed some broken glass on the floor in front of a gas fireplace and flame emitting from the fireplace. Consistent with sound police practices, the officers separated the Amy and Hershel.  One officer stayed with Hershel while a second went to Amy in the living room and spoke to Amy.  Hershel tried to participate in the living room conversation between Amy and the officer but was “rebuffed.”  Amy provided a statement that established that Hershel had broken the glass on the gas fireplace, had pushed her to the floor, and had vandalized her van so that she could not leave the scene.  This is the statement that was used against Hershel in his criminal prosecution when Amy did not appear in response to a subpoena.

In its review of the case, the United States Supreme Court found that the statement in this case was different from the statement used in the Davis case but was nearly identical to an inadmissible statement from their prior decision in Crawford v. Washington.ⁱⁱⁱ

At the outset the Court noted: “A 911 call… and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’ some past fact, but to describe current circumstances requiring police assistance…In Davis, McCottry was speaking about events as they were actually happening, rather than ‘describing past events,’ Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon… And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.”

In distinguishing the statements used in the criminal prosecution of Hammon from the statements used in the criminal prosecution  of Davis the Court concluded: It is entirely clear from the circumstances [in Hammon] that the interrogation was part of an investigation into possibly criminal past conduct — as, indeed, the testifying officer expressly acknowledged. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime — which is, of course, precisely what the officer should have done.”  The Court concluded that the statements introduced against Hammon were testimonial in nature and should not have been allowed in his criminal prosecution.

Over the years the courts have allowed prior statements of witnesses or victims to be used against a defendant where the defendant was responsible for making the witness unavailable for trial.  The United States Supreme Court considered this issue in the 2007-2008 term in Giles v. California.^iv

The facts of the case were reported as follows:

On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother’s house. No witness saw the shooting, but Giles’ niece heard what transpired from inside the house. She heard Giles and Avie speaking in conversational tones. Avie then yelled ‘Granny’ several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie, who had not been carrying a weapon, had been shot six times. One wound was consistent with Avie’s holding her hand up at the time she was shot, another was consistent with her having turned to her side, and a third was consistent with her having been shot while lying on the ground. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder.

At trial, Giles testified that he had acted in self-defense. Giles described Avie as jealous, and said he knew that she had once shot a man, that he had seen her threaten people with a knife, and that she had vandalized his home and car on prior occasions. He said that on the day of the shooting, Avie came to his grandmother’s house and threatened to kill him and his new girlfriend, who had been at the house earlier. He said that Avie had also threatened to kill his new girlfriend when Giles and Avie spoke on the phone earlier that day. Giles testified that after Avie threatened him at the house, he went into the garage and retrieved a gun, took the safety off, and started walking toward the back door of the house. He said that Avie charged at him, and that he was afraid she had something in her hand. According to Giles, he closed his eyes and fired several shots, but did not intend to kill Avie.

Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles’ objection, the trial court admitted these statements into evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy.”

In allowing the statements in, the trial court concluded that since it was Giles’ wrongdoing that made Avie unavailable to testify, the statement made by Avie, three works before her murder should be allowed at trial.

The United States Supreme Court concluded that statements made by a person who is subsequently unavailable at trial because of an act committed by the defendant, including murder of the witness, are not automatically admitted because of the defendant’s wrongdoing.  Instead, motive becomes central to whether or not these statements will be admitted.  The question for investigators as well as prosecutors is why did the defendant kill the victim?  If the defendant’s purpose in killing the victim was to prevent the victim from testifying against him or her in some future case, the prior statements are admissible.  If the defendant killed the victim for some other purpose the prior statements are not admissible.  It must be reiterated that this rule does not impact dying declarations where the witness is on the “brink of death” when the statement is made, believes they are dying, and actually dies.

In domestic violence cases, investigators should consider the following passage from the decision:

“The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution–rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.”
Thus, a prior/on-going abusive relationship may aid the investigator in establishing the intent to make the victim unavailable for trial.  The Court remanded the case for the trial court to consider whether Giles had an intent to prevent his victim from testifying against him.

Key Points: Where the witness is unavailable for trial:

• The Court noted that the officers in Hammon did exactly what they should have done-investigate the crime that was over when they arrived.
• This case has little impact on law enforcement operations since responding officers have no control over whether the emergency is on-going or a past event being reported—Where it is on-going officers would be seeking information to assist in resolving the emergency—where it is a past event, officers would be seeking information to establish if a crime had been committed and to assist in the prosecution of any crime established.  In either case, officers would be doing exactly what they should be doing.
• As a matter of report-writing officers should be aware of the distinctions set forth in this case so that the report reflects the circumstances under which the information was obtained—i.e. was it obtained during the on-going emergency to assist officers in dealing with the emergency or was it obtained in the calm aftermath of the event in an effort to investigate and prosecute a past criminal event?
• Statements made in the midst of an emergency for the purpose of assisting and resolving the emergency are likely admissible as non-testimonial.
• Statements made as part of an investigation once the scene is controlled are inadmissible as testimonial.
• Where the witness is unavailable because of the wrongdoing of the defendant, the prior statements (not including dying declarations) of the witness regarding the defendant are not admissible unless the defendant made the person unavailable for the specific purpose of eliminating their ability to testify.
• In domestic violence cases, the prior domestic violence itself may have been for the very purpose of keeping the victim from testifying or otherwise cooperating with law enforcement.  If so, this would be relevant to establishing that the defendant’s purpose was to make the victim unavailable to testify.

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