Davis v. Washington - Amicus (Merits)

No. 05-5224

In the Supreme Court of the United States

ADRIAN MARTELL DAVIS, PETITIONER

v.

STATE OF WASHINGTON

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether an assault victim's identification of her assailant in response to emergency questioning by a 911 operator was "testimonial" within the meaning of Crawford v. Washington, 541 U.S. 36 (2004).

In the Supreme Court of the United States

No. 05-5224

ADRIAN MARTELL DAVIS, PETITIONER

v.

STATE OF WASHINGTON

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the rule against the admission of "testimonial" statements established in Crawford v. Washington, 541 U.S. 36 (2004), applies to state ments made in response to emergency questioning. Because that question has substantial implications for the conduct of federal criminal trials, the United States has a significant interest in the Court's disposition of this case.

STATEMENT

1. On February 1, 2001, Michelle McCottry dialed 911, but hung up before speaking to a 911 operator. J.A. 117. The operator called McCottry back immediately. Ibid. The con versation between McCottry and the operator proceeded as follows:

911 Operator: Hello

Complainant: Hello

911 Operator: What's going on?

Complainant: He's here jumpin' on me again.

911 Operator: Okay. Listen to me carefully. Are
you in a house or in an apartment?

Complainant: I'm in a house.

911 Operator: Are there any weapons?

Complainant: No. He's usin' his fists.

911 Operator: Okay. Has he been drinking?

Complainant: No.

911 Operator: Okay, sweetie. I've got help started. Stay on the line with me, okay?

Complainant: I'm on the line.

911 Operator: Listen to me carefully. Do you know his last name?

Complainant: It's Davis.

911 Operator: Davis? Okay, what's his first name?

Complainant: Adran.

911 Operator: What is it?

Complainant: Adrian.

911 Operator: Adrian?

Complainant: Yeah.

911 Operator: Okay. What's his middle initial?

Complainant: Martell. He's runnin' now.

J.A. 8-9.

In response to further questioning, McCottry told the 911 operator that petitioner had run to his car, that the car was headed out of a dead end street, and that petitioner was not alone. J.A. 9-10. After informing the operator that she did not need an aid car, McCottry told her that she had to leave the phone to close her door. J.A. 11. When McCottry re turned, she told the 911 operator, in response to additional questions, that petitioner was her former boyfriend, that she was moving that day, that petitioner had come over to "get his stuff," that someone else was present when petitioner arrived, that she told petitioner to go, and that petitioner then began beating her. J.A. 11-12.

At that point, the 911 operator obtained identifying infor mation from McCottry. J.A. 12. After obtaining that infor mation, the operator asked McCottry whether her door was locked, and McCottry replied that it was. J.A. 13. At the conclusion of the call, the operator told McCottry that the police would check the area for petitioner first and then come talk to her. Ibid.

Police officers arrived at McCottry's house within four minutes of the 911 call. J.A. 117. They observed that McCottry was "very upset" and that she had fresh injuries on her forearm and face. Ibid. While McCottry spoke with the officers, she made hurried efforts to gather her children and belongings so that they could leave the house. Ibid.

2. Petitioner was charged with one count of a felony viola tion of the provisions of a domestic no-contact order. J.A. 117. The State presented the two police officers who re sponded to the 911 call as witnesses, and they testified about McCottry's injuries. The prosecutor also introduced McCottry's 911 call under the State's excited utterance excep tion to the hearsay rule. J.A. 118. That exception permits the introduction of "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Wash. Rev. Code Ann., R. Evid. 803(a)(2) (West 2005). The State was unable to locate McCottry, so she did not testify. J.A. 118. The jury found petitioner guilty. J.A. 119.

3. The Washington Court of Appeals affirmed. J.A. 96- 111. As relevant here, the court rejected petitioner's conten tion that the admission of the 911 call deprived him of his Sixth Amendment right to confront the witnesses against him. J.A. 96. The court reasoned that, under Ohio v. Roberts, 448 U.S. 56, 66 (1980), the admission of statements within a firmly rooted hearsay exception do not violate the Confrontation Clause, the excited utterance exception is firmly rooted, and McCottry's 911 statements were excited utterances. J.A. 98- 99.

4. The Washington Supreme Court affirmed. J.A. 116- 138. While the appeal was pending, this Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the Con frontation Clause generally precludes the admission of "testi monial" statements unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. Applying Crawford, the Washington Supreme Court consid ered whether McCottry's 911 call was testimonial. J.A. 124.

In resolving that issue, the Washington Supreme Court first determined that the purpose of an emergency 911 call "is generally not to 'bear witness'" but rather to obtain "help to be rescued from peril." J.A. 124. The court rejected the ar gument that McCottry reasonably knew that her call would later be used to prosecute petitioner, finding "no evidence that McCottry had such knowledge or that it influenced her decision to call 911." J.A. 126.

The Washington Supreme Court further held that "[a]n emergency 911 call may contain both statements which are nontestimonial and statements which are testimonial." J.A. 127. The court also noted that harmless error analysis applies to the admission of evidence in violation of the Confrontation Clause. J.A. 127-128. Applying those principles, the court held that McCottry's initial identification of petitioner as her assailant was non-testimonial because it was part of an effort to seek assistance and protection from peril. J.A. 128. The court concluded that, to the extent other statements in the 911 call might be testimonial, their admission was harmless beyond a reasonable doubt. J.A. 128-129

Judge Sanders dissented. J.A. 131-138. Applying a stan dard based on whether a reasonable person would anticipate that a statement would be used in investigating or prosecut ing a crime, he concluded that McCottry's 911 call was testi monial. J.A. 133-134.

SUMMARY OF ARGUMENT

In Crawford v. Washington, 541 U.S. 36 (2004), this Court made clear that the Confrontation Clause's core textual and historical concern is eliminating the civil law method of proof, which permitted the use of ex parte examinations as evidence against the accused. The Court's approach to determining whether an out-of-court statement infringes that core con cern-and thus is "testimonial"-requires assessing whether a modern-day hearsay statement presents the type of acute dangers raised by the historical abuses that the Framers tar geted.

Statements made to officials who are faced with an apparent emergency, and who ask questions reasonably nec essary to resolve that emergency, are not "testimonial" state ments. Three central features characterized the civil law method of ex parte examinations: they clearly conveyed to the declarant that he was giving statements for use in a legal proceeding; the government could readily exploit the situation to shape the statements; and the statements were only a weaker form of live testimony, without independent probative value. Statements given in response to emergency question ing have none of those features.

In an emergency, a declarant will likely understand that the objective purpose of official questioning is to assess and resolve an immediate or imminent threat to the safety of an individual or the public. The circumstances lack the formality or structuring of inquiries characteristic of modern-day inter rogation, or, most importantly, of the historical instances that prompted the Confrontation Clause. Similarly, government manipulation of the responses for prosecutorial purposes is not a general risk when public officials are seeking to resolve an emergency. Responsible officials can be expected to be focused on averting harm as their prime goal, rather than generating evidence for a trial. Finally, the immediacy and authenticity of on-the-scene statements in the midst of an emergency gives those statements a probative force that is not replicated by in-court testimony when the emergency has long passed. Statements given in an emergency thus have none of the critical features of the classic testimonial state ments identified in Crawford: testimony at preliminary hear ings, grand jury proceedings, or a former trial, or of modern, tactically structured interrogation.

Petitioner seeks to expand Crawford's reach, and extend the "testimonial" category to encompass emergency state ments, by misreading history. He contends that all accusa tions to government agents that a person committed a crime should be regarded as "testimonial." History, however, indi cates that the "accusers" that the Confrontation Clause con templates were formal accusers (as in Raleigh's case); that the sparse English case law excluding evidence of crime re ports to constables was likely unavailable to the Framers, may have rested on grounds other than the common law con frontation right, and did not involve emergencies; that res gestae case law was mixed and in many cases did admit state ments identifying criminals made immediately or very shortly after an emergency; and that other cases excluding a rape victim's identification of the assailant (when she did not tes tify) involved no on-going emergency. This history thus fur nishes no basis for excluding probative evidence stemming from emergency questioning that differs critically from the "principal evil at which the Confrontation Clause was di rected." 541 U.S. at 50.

Under the proper approach, the statements made during the 911 call in this case by the victim identifying her assailant were the product of emergency questioning. The 911 opera tor faced an apparent emergency; and the questions were reasonably necessary to protect the safety of the victim. The Confrontation Clause's bar on "testimonial" statements has no application to such statements.

ARGUMENT

STATEMENTS THAT ARE THE PRODUCT OF EMER GENCY QUESTIONING ARE NOT "TESTIMONIAL" UN DER THE CONFRONTATION CLAUSE

The Confrontation Clause guarantees a criminal defen dant the right "to be confronted with the witnesses against him." U.S. Const. Amend. VI. This Court in Crawford v. Washington, 541 U.S. 36 (2004), made clear that the "primary object" of concern under the Confrontation Clause is "testi monial hearsay." Id. at 53. The determination of whether a particular statement is testimonial requires a close compari son to the type of statement that formed the "principal evil" at which the Confrontation Clause was aimed. Id. at 50. While the formal acquisition of evidence by the government in the "civil-law mode of criminal procedure," ibid., exempli fies that evil, statements taken by law enforcement officers in response to what they reasonably perceive to be an emer gency do not. Responses to emergency questioning, i.e., questioning that is reasonably necessary to determine whether there is an emergency and how to respond, are therefore not testimonial, and thus not within Crawford's rule against admitting such statements absent unavailability of the witness and a prior opportunity for cross-examination.

I. THE FRAMERS SOUGHT TO ABOLISH THE USE OF EX PARTE EXAMINATIONS AND COMPARABLE PRAC TICES AS EVIDENCE AGAINST THE ACCUSED, AND EMERGENCY QUESTIONING IS NOT A COMPARABLE PRACTICE

1. In Crawford, the Court held that the Confrontation Clause generally bars the admission against a criminal defen dant of "testimonial" out-of-court statements unless the declarant is unavailable and the defendant had a prior oppor tunity for cross-examination. The Court overruled Ohio v. Roberts, 448 U.S. 56, 66 (1980), to the extent it held that the admission of testimonial hearsay does not violate the Con frontation Clause as long as it falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." See Crawford, 541 U.S. at 60-62 (quoting Roberts, 448 U.S. at 66).

The Court based its holding on the historical development of the right to confrontation that preceded the framing of the Confrontation Clause. That history demonstrated that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the ac cused." Crawford, 541 U.S. at 50. That practice had devel oped in England under the Marian bail and committal stat utes that required justices of the peace to examine witnesses in felony cases and certify the written results to the court where they "came to be used as evidence in some [criminal] cases." Id. at 44. One particularly egregious example of the practice of using ex parte examinations as evidence against the accused occurred during the treason trial of Sir Walter Raleigh. At that trial, the statements made by Raleigh's ac cuser during an ex parte examination by the Privy Council were introduced as evidence against Raleigh over his objec tion that his accuser should be brought before him. Ibid. Because ex parte examinations like those in Raleigh's case were the target of the Confrontation Clause, the Court ex plained, "[t]he Sixth Amendment must be interpreted with this focus in mind." Id. at 50.

The Court also concluded that "the text of the Confronta tion Clause reflects this focus." Crawford, 541 U.S. at 51. The Court explained that at the time of the framing of the Confrontation Clause, the term "witnesses" meant "those who 'bear testimony,'" and "[t]estimony" meant "[a] solemn declaration or affirmation made for the purpose of establish ing or proving some fact." Ibid. (citing Noah Webster, An American Dictionary of the English Language (1828) (Web ster's)). To illustrate the focus indicated by the Constitu tion's text, the Court stated that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an ac quaintance does not." 541 U.S. at 51.

The Court declined to provide a "comprehensive" defini tion of "testimonial." Crawford, 541 U.S. at 68. Instead, it held that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial, and to police interrogations," because "these are the modern practices with closest kinship to the abuses at which the Con frontation Clause was directed." Ibid. The Court also con cluded that the recorded statement at issue in Crawford- taken while the declarant was in custody and under investiga tion for a crime-was the product of police interrogation and therefore testimonial, because it was "knowingly given in response to structured police questioning." Id. at 53 n.4.

2. This case involves statements that are the product of emergency questioning, i.e., the response of law enforcement officers to what they reasonably perceive to be an emergency. Responses to emergency questioning, i.e., questioning that is reasonably necessary to determine whether there is a present or imminent risk of harm to an individual or the public, and if so, how to resolve that emergency, are categorically differ ent from the types of testimonial statements identified in Crawford. While Crawford did not address whether state ments that are the product of such questioning are testimo nial, it did provide guidance on how to approach that issue. Because the Court interpreted the Confrontation Clause as principally concerned with outlawing admission of the kind of ex parte examinations conducted under the authority of the Marion statutes, and in Raleigh's trial, 541 U.S. at 50, the appropriate inquiry is whether emergency questioning re sembles those historical abuses.

As discussed, infra, the relevant characteristics of ex parte examinations that make them testimonial for purposes of the Confrontation Clause are that: (1) they have a degree of formality in that they impart a clear understanding to the declarant that his statement is being taken for use in a legal proceeding; (2) they can easily be exploited by the govern ment to shape the declarant's statement; and (3) they produce a weak form of live testimony, lacking in independent proba tive value. See pp. 11-19, infra. Because emergency ques tioning does not possess those characteristics, statements that are the product of emergency questioning are not testi monial for purposes of the Confrontation Clause.

A. While Ex Parte Examinations Impart A Clear Under standing That A Statement Is Being Taken For Use In A Legal Proceeding, Emergency Questioning Does Not

1. The justices of the peace who conducted ex parte exam inations pursuant to the Marian statutes used the statements of the witnesses who appeared before them to make bail and committal decisions. They also sent the recorded depositions to the court for use at trial. Those who were examined by the justices of the peace therefore had a clear understanding that their statements were being taken for use in legal proceed ings. They understood that they were being called upon to make "[a] solemn declaration or affirmation * * * for the pur pose of establishing or proving some fact." Crawford, 541 U.S. at 51 (quoting Webster's definition of "testimony"). Per sons who appear before grand juries, in pretrial proceedings, or trials share that understanding.

The same is true of persons subjected to police interroga tions. Indeed, by definition, a police interrogation as that term is used in Crawford should be understood to refer to police questioning that is objectively structured to obtain evidence for use in a legal proceeding and that is taken under circumstances that impart that understanding to the declarant. See Crawford, 541 U.S. at 53 n.4. For example, when, as in Crawford, a police officer conducts questioning in a custodial setting, precedes the questioning with a warning that the declarant's statement may be used in court, and structures the questioning to produce evidence for trial, the circumstances impart to the declarant a clear understanding that the statement is being taken for use in a legal proceed ing.

In contrast, Crawford identified several examples of non- testimonial statements, and in each case, the circumstances did not impart to the declarant an understanding that his statement would be used in a legal proceeding. For instance, Crawford reaffirmed the holding in Bourjaily v. United States, 483 U.S. 171, 173-174 (1987), that the admission into evidence of a statement made by a defendant's co-conspirator to an undercover informant implicating the defendant in the conspiracy does not violate the Confrontation Clause. Crawford, 541 U.S. at 58. The Court explained that a co-con spirator's statement to an undercover informant is not testi monial because it is made "unwittingly" to a government agent. Ibid. Thus, even when the government deliberately uses an undercover informant to solicit evidence from a co- conspirator implicating the defendant in the conspiracy, the statement is not testimonial because the co-conspirator is not made aware that the statement is being sought for use at trial.

Similarly, Crawford reaffirmed the holding in Dutton v. Evans, 400 U.S. 74 (1970), that a co-conspirator's statement to a cellmate implicating the defendant in criminal activity may be admitted into evidence without violating the Confron tation Clause. Crawford, 541 U.S. at 57. The Court explained that, "by their nature," co-conspirator statements in further ance of the conspiracy are not testimonial. Id. at 56. One of the reasons that is so is that such statements are not made with an understanding that they will be used in a legal pro ceeding. The same is true of a casual remark to an acquain tance. See id. at 51.

2. Statements made in response to emergency question ing fall into the same category. Emergency questioning takes place when the factual circumstances would lead a reasonable official to believe that there may be an emergency-a present or imminent risk of harm to an individual or the public-that requires official action. The ensuing questioning, viewed ob jectively, is aimed at determining whether there is in fact an emergency, and if so, how to resolve it. A person asked to respond to such questioning is highly likely to understand that her statements are being sought for that emergency purpose. And given the exigencies in emergency questioning, it is not accompanied by formalities that might lead a declarant to believe that the statement is being taken for use in a legal proceeding.

At the same time, persons in the midst of an emergency are likely to focus primarily on the resolution of the emer gency and not on other matters. It is a normal human reac tion to prioritize the resolution of an emergency. Attending to something that requires urgent action leaves little room for the mind to focus on other matters. That is certainly true when a person is in the midst of a crisis or is a recent victim of a violent physical assault, as many persons who make 911 calls are. Indeed, the premise of the deeply rooted excited utterance exception to the hearsay rule is that emergencies and other exciting events "still[] the capacity of reflection." Fed. R. Evid. 803(1) and (2) advisory committee's note (1972); see 6 John H. Wigmore, Evidence § 1747, at 195 (Chadbourn rev. 1976) (rationale of the excited utterance exception is that an external shock "stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock"). Not every person questioned in a perceived emergency is in such an excited state. But even when an emergency does not overwhelm an individual's reflective powers, the pressure of the emergency is still likely to focus that person's mind on its resolution. In such persons, the pressing need to resolve the emergency is still likely to take precedence, temporarily ren dering other concerns of secondary or no importance.1

Petitioner contends (Br. 41) that a reasonable person who "stopped to consider the matter" would understand that her responses to emergency questioning could be used "prosecu torially." Indeed, petitioner contends that, to the extent a more general test than text and history should apply in classi fying a statement as "testimonial," the Confrontation Clause should focus on whether a declarant would reasonably have anticipated that his statements might be used for law en forcement purposes. Br. 13, 41. But abstracting the emer gency away from the situation, and watering down the rele vant "anticipation" to what might occur, removes what is unique about emergencies and thus destroys the ability to ask whether emergency questioning is akin to the historical prac tices that animated the adoption of the Confrontation Clause. In the historical examples, the declarants actually understood that their statements were being taken for use in a legal pro ceeding and that they were making solemn declarations for the purpose of proving some fact. In emergency questioning, as a general matter they do not.

That does not mean that a court should attempt to divine the actual subjective understanding of the person responding to emergency questioning. Because a person's actual subjec tive understanding is both elusive and unverifiable, such an approach would "entangle the courts in a multitude of difficul ties," White v. Illinois, 502 U.S. 346, 364 (1992) (Thomas, J., concurring in the judgment), and lead to inconsistent results on similar facts. For that reason, an objective approach is appropriate. But since the ultimate inquiry is whether admis sion of statements that are the product of emergency ques tioning is the modern equivalent of the historical abuses, any objective inquiry into the likely understanding of a person responding to emergency questioning must be a reasonable proxy for the declarant's actual understanding. Petitioner's proposal to extract the emergency from his objective test, and to imagine instead a person who has stopped to consider all the possible ramifications of his actions, fails to serve as such a proxy. Indeed, extracting the emergency from the inquiry virtually guarantees that the thought process of peti tioner's hypothetical reasonable person will fail to match the declarant's.2

At the same time, it would not make sense to attempt to determine in every case the understanding of a reasonable person in the declarant's particular emergency situation. That approach would also lead to unpredictable and inconsis tent results. Instead, because in the general run of cases, a person responding to emergency questioning is likely to be primarily focused on providing information for use in resolv ing the emergency, and not on providing evidence for use in a legal proceeding, the relevant inquiry should simply be whether a person is responding to emergency questioning. That approach is both sound and administrable. Courts have the means to distinguish between on-the-spot questioning that is reasonably necessary to determine whether a per ceived emergency in fact exists, and if so, how to respond, and questioning that is objectively structured solely to produce evidence for use in a legal proceeding. Cf. New York v. Quarles, 467 U.S. 649, 658-659 (1984).

B. The Government Can Easily Exploit Ex Parte Examina tions To Shape The Declarant's Statements, But Emer gency Questioning Does Not Pose That Same Danger

One salient characteristic of the ex parte examinations to which the framers of the Confrontation Clause objected is the ease with which the government could shape the declarant's statements to incriminate the accused. As the Court ex plained in Crawford, "[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse-a fact borne out time and again throughout a history with which the Framers were keenly familiar." 541 U.S. at 56 n.7.

In holding that police interrogations are akin to the ex parte examinations conducted by justices of the peace, the Crawford Court relied heavily on that risk of abuse. 541 U.S. at 52-53. The Court emphasized that "[t]he involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are the police or justices of the peace." Id. at 53.

Emergency questioning does not pose that same potential for abuse. Public employees who take 911 calls and police officers who help to resolve an emergency on the scene will characteristically focus their energies on that pressing task. See U.S. Amicus Br. at 10-12, Hammon v. Indiana, cert. granted, No. 05-5705 (Oct. 31, 2005). To officials intent on resolving an emergency, taking the time to shape questioning to produce evidence for trial could only serve as a distraction and impede the resolution of the emergency, possibly risking harm to the victim or to public safety. There is therefore little risk that emergency questioning will be used to shape testimony for trial. Indeed, it would be an extreme derelic tion of duty and contrary to every natural impulse for a gov ernment official to forsake the needs of a person imperilled by danger in order build a case for trial. Questioning in an emergency is therefore likely to be exploratory and focused on assessing the needs of the moment, not a means of build ing a possible future case.

The objective standard for determining whether a govern ment official is engaged in emergency questioning further minimizes any risk of the kind of manipulation that attended traditional ex parte examinations. As noted above, to qualify as emergency questioning, the official must confront facts that would lead a reasonable official to believe that there may be an emergency, and the questions must be reasonably nec essary to determine whether an emergency exists and, if so, how to resolve it. Questioning that strays from those objec tives is not emergency questioning. Any effort to use the happenstance of an emergency to gather evidence for trial that would not be subject to cross-examination is therefore likely to be self-defeating. The very effort to collect such evidence is likely to reveal itself in the questioning, trans forming emergency questioning into structured interrogation, and triggering Crawford's restrictions on the admission of testimonial evidence.

C. Ex Parte Examinations Produce Weak Forms Of Live Testimony, While Emergency Questioning Often Re sults In Statements That Have Independent Probative Value

Another characteristic of the ex parte examinations con ducted by justices of the peace is that they produced evidence that was nothing more than a weak version of live testimony. The same is true of the modern-day counterparts: testimony before a grand jury, testimony at a preliminary hearing, for mer trial testimony, and the results of interrogations. The introduction of such testimony raises special Confrontation Clause concerns. The Court has made that point in connec tion with former testimony, explaining that "former testi mony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony." United States v. Inadi, 475 U.S. 387, 394 (1986). That same observation ap plies to the other categories of testimonial evidence Crawford identified.

Some out-of-court statements, however, have independent probative value and therefore differ from the historical abuses at which the Confrontation Clause was aimed. For example, statements made in furtherance of a conspiracy "provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court." Inadi, 475 U.S. at 395. And "given a declarant's likely change in status by the time the trial occurs, simply calling the declarant in the hope of having him repeat his prior out-of-court statements is a poor substitute for the full evidentiary significance that flows from statements made when the conspiracy is operating in full force." White v. Illi nois, 502 U.S. 346, 354 (1992).

Statements made in response to emergency questioning can also have independent probative value, particularly when they take the form of excited utterances. As the Court ex plained in White v. Illinois, 502 U.S. at 356, a "statement that has been offered in a moment of excitement-without the opportunity to reflect on the consequences of one's examina tion-may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom." That has been the judgment of courts beginning more than two centuries ago; that view is reflected in the Federal Rules of Evidence; and that view is widely accepted in the States. Id. at 355 n.8. A victim's panic-stricken appeal for help on a 911 tape, for example, can have value that live testimony simply cannot replicate. Thus, the Framers of the Confrontation Clause would readily have perceived a distinc tion between the admission of the products of emergency questioning and the historical abuses in the use of ex parte testimony that they sought to abolish. There is no reason for this Court to extend the testimonial concept in Crawford well beyond its historical origins, with the effect of entirely pre cluding uniquely probative evidence.

II. HISTORY DOES NOT ESTABLISH THAT AN OUT-OF- COURT STATEMENT THAT IMPLICATES A PERSON IN A CRIMINAL ACT IS TESTIMONIAL WHEN THE STATE MENT IS MADE IN RESPONSE TO EMERGENCY QUES TIONING

Petitioner argues that any out-of-court statement to a government agent that implicates a person in criminal activ ity is testimonial, including statements made in response to emergency questioning. But as discussed, infra, petitioner makes no effort to show that statements made in response to emergency questioning bear a kinship to the ex parte exami nations at which the Framers directed the Confrontation Clause, and the historical argument he does make is unsup ported by the materials upon which he relies.

A. An Accusation Rule Sweeps Far More Broadly Than The Paradigmatic Examples That Prompted the Con frontation Right

Petitioner contends (Br. 15) that any statement made to a government agent that implicates a person in a criminal act is testimonial, including any statement made in response to emergency questioning. For several reasons, that contention is incorrect.

First, while petitioner asserts (Br. 14-15) that his rule is derived from the approach followed in Crawford, in fact, peti tioner strays from that approach. Crawford held that the Confrontation Clause was aimed at a particular practice that the Framers found objectionable-"the civil law mode of criminal procedure, and particularly its use of ex parte exami nations as evidence against the accused." 541 U.S. at 50. And Crawford further held that the scope of the Confrontation Clause has to be interpreted "with this focus in mind." Ibid. Following that approach, the Court held that police interro gations are testimonial because "they bear a striking resem blance to examinations by justices of the peace in England." Id. at 52.

Petitioner fails to follow that method of analysis. In par ticular, he does not attempt to show that emergency question ing is a modern-day counterpart to the civil law mode of crim inal procedure that the Framers rejected. Nor is such a showing possible. For the reasons previously discussed, emergency questioning does not have the characteristics of the civil law mode of procedure.

Petitioner's rule would also set aside the well-established practice of state and federal courts of admitting as significant evidence of guilt a statement implicating a person in criminal conduct made in the immediate wake of an attack. See White, 502 U.S. at 355 n.8. It is one thing to invalidate state and federal practice when, as in Crawford, courts had unpredict ably and inconsistently applied a list of factors and had regu larly admitted accomplice confessions that were the product of police interrogation, despite the Court's repeated holdings that the Confrontation Clause creates a strong presumption against their admissibility. Crawford, 541 U.S. at 63-64. It is another thing, however, to entirely sweep aside a practice that has not been shown to have been plagued by unpredict ability, where the evidence does not share the characteristics of the abuses that animated the Confrontation Clause.

B. History Furnishes No Sound Basis For Treating The Products Of Emergency Questioning As "Testimonial"

Petitioner's case for his proposed rule rests on his asser tion (Br. 10-11, 14-34) that the historical evidence shows that the Confrontation Clause was intended to bar the admission of any out-of-court statement to a government agent implicat ing a person in criminal activity, including a statement in response to emergency questioning. Petitioner has failed to make that historical case.

1. In support of his per se rule, petitioner relies (Br. 16) on the demand of defendants, such as Raleigh, to meet their accusers face-to-face. But Raleigh's accuser was someone who had made a formal accusation against him to the Privy Counsel. As the Court explained in Crawford, that is the kind of accuser the Framers had in mind when they estab lished that criminal defendants would have the right to con front the witnesses against them. 541 U.S. at 50 (Confronta tion Clause was directed at the abuse in Raleigh's case); see Webster's, supra (defining "accuse" as "to charge with an offense against the laws, judicially or by a public process"). Petitioner does not cite any historical reference that suggests that the Framers understood an "accuser" to be someone who identified the person responsible for harming him in the im mediate aftermath of an attack, in response to emergency questioning.

2. Petitioner also relies (Pet. 19-20) on two English cases that excluded from evidence a constable's testimony about what the victim told him after the crime. But those cases cannot carry the weight petitioner places on them.

First, there is no evidence that those case's rulings on the admissibility of the statements made to the constable affected the Framers' understanding of the Confrontation Clause. One of the cases-Rex v. Wink, 6 Car. & P. 398, 172 Eng. Rep. 1293 (1834) -was decided 43 years after Congress ap proved the Confrontation Clause for submission to the States in 1789, and 41 years after the States ratified it in 1791.

The other case petitioner relies on is King v. Radbourne, 1 Leach 456, 168 Eng. Rep. 330 (1787). Even if the Framers were familiar with Leache's published account of the signifi cant legal rulings from that case, they would not have learned about the ruling relating to the constable's testimony because that ruling was not included in Leache's account. Rather, that ruling appears in The Proceedings of the Old Bailey, See Pet. Br. 19, a publication that was intended to provide a full account of the testimony in local criminal trials, not to extract from those trials its significant legal rulings. Petitioner pro vides no evidence that the Framers would have been familiar with the Old Bailey account, much less with the very brief reference in that publication that petitioner cites. It is highly unlikely that the snippet cited by petitioner was "burned into the general consciousness." Crawford, 541 U.S. at 46 (cita tion omitted).

Second, the accounts of the cases do not support peti tioner's contention that the admissibility rulings were based on the common law right of confrontation. In Wink, the re port does not supply an explanation for the ruling. But since the statement was hearsay not subject to any apparent excep tion, it might well have been excluded on hearsay grounds.3 The Confrontation Clause was not intended to preclude the admission of all hearsay, see Crawford, 541 U.S. at 51 (histor ically significant practices that prompted the Confrontation Clause "suggest[] that not all hearsay implicates the Sixth Amendment's core concerns"), but instead was targeted at testimonial hearsay, ibid.; see also id. at 60-61 (noting pro posals to exclude non-testimonial hearsay from Confrontation Clause scrutiny). Thus, a decision on hearsay grounds with out more would not have implications for deciding what is testimonial under the Confrontation Clause. For example, a casual remark to a neighbor, offered to prove the truth of the assertion, presumably would have been excludable as hearsay at the time of the framing of the Confrontation Clause. But, as Crawford establishes, because that statement is not testi monial, its introduction does not implicate the core concerns of the Confrontation Clause. See Crawford, 541 U.S. at 51.

The Old Bailey account of Radbourne indicates that the judge instructed the constable not to repeat the victim's statement to him because the defendant was not present at that time. Pet. Br. 21. But that does not mean that the ruling was based on a criminal defendant's common law confronta tion right. Radbourne was tried for petty treason, and Brit ish law required all evidence in such cases to have been taken in the presence of the accused. See Radbourne, 168 Eng. Rep. at 332-333. The ruling may have been based on that statute, rather than a criminal defendant's common law con frontation right.

Finally, while petitioner characterizes the statements excluded in Wink and Radbourne as fresh reports, neither statement was made during an emergency. The statement in Wink was made between five and six hours after the declarant was robbed. 172 Eng. Rep. at 1293. And the state ment in Radbourne was made more than one and one-half hours after the crime occurred, following the constable's one- hour meticulous search for evidence. Accordingly, neither Wink nor Radbourne establishes that statements made in response to emergency questioning are testimonial.

Petitioner also relies (Br. 21-22) on an 1835 decision of the South Carolina Supreme Court. See State v. Hill, 20 S.C.L. (2 Hill) 607 (Ct. App.). That decision, however, was issued more than 40 years after the framing of the Confrontation Clause; it did not purport to rely on the Confrontation Clause in excluding the evidence at issue; and the evidence at issue was a statement made to a magistrate, not a statement made in response to emergency questioning. That decision there fore has no relevance here.

3. Petitioner next relies (Br. 22-34) on the development of the hearsay rule and its relationship to the doctrine that out-of-court statements were admissible if they formed part of the res gestae. According to petitioner (Br. 24-25), the rule that statements could be admitted as part of the res gestae was limited to statements before the relevant act occurred, such as "Prince Jones, don't shoot me," and did not extend to statements made just after the act, such as "Prince Jones just shot me." In fact, however, that has never been the settled understanding of the res gestae rule. While petitioner has cited nine state court cases decided between 1880 and 1887 that adhere to the res gestae line he identifies, there are other prominent decisions that viewed the res gestae to ex tend to statements made immediately or very shortly after the event described.

For example, in the only pre-Framing case cited by peti tioner-Thompson v. Trevanian, Skin. 402, 90 Eng. Rep. 179 (K.B. 1694)-the court allowed a witness to testify to what the victim said "immediate[ly] upon the hurt received, and before she had time to devise or contrive any thing for her own ad vantage." It also appears that, before the framing of the Con frontation Clause, English courts allowed witnesses to testify about what the victim had told them some time after the crime had been committed.4

After the framing of the Confrontation Clause, some crim inal courts in England and the United States continued to admit out-of-court statements implicating the defendant in the crime when the statements were made immediately or very shortly after the criminal conduct occurred. For exam ple, in Rex v. Foster, 6 Car. & P. 325, 172 Eng. Rep. 1261 (1834), a person who witnessed a cab drive by, but did not see the cab run over the victim, was allowed to relate what the victim told him about the incident just after it occurred. Sim ilarly, in Commonwealth v. M'Pike, 57 Mass. (3 Cush.) 181, 184 (1849), a witness was allowed to testify that he heard the victim cry murder, went to find help, returned to the victim, and was then told by the victim that the defendant had stabbed her. Other cases reached the same result on similar facts.5

Petitioner notes (Br. 30) that some scholars have not read Trevanian to support the admission of statements made after the relevant conduct has occurred to prove the matter as serted. And he further notes (Br. 26 & n.5) that some writers and courts have criticized Foster and M'Pike. But this Court examined those three decisions in Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397 (1869), and it reached a contrary conclu sion with respect to each case. In particular, it relied on Trevanian as authority for the proposition that statements made "almost contemporaneously" with an event are admissi ble as proof of the matter asserted, and it expressly endorsed the decisions in Foster and M'Pike. See Mosely, 75 U.S. (8 Wall.) at 405-409. Petitioner's view that there was a firm understanding that the res gestae rule did not allow state ments describing a completed event to be admitted is there fore incorrect.6

There is, however, a more basic objection to petitioner's reliance on the development of the res gestae rule. That rule developed as an aspect of the hearsay rule, not as a method for determining limits imposed by the Confrontation Clause. As already discussed, a limitation that has its source in the general rules against the admissibility of hearsay does not have implications for defining the meaning of "testimonial" under the Confrontation Clause. See pp. 22-23, supra.

Indeed, if the res gestae rule reflected an effort to imple ment the limits established by the Confrontation Clause, and not simply general hearsay standards, one would expect to see evidence that courts applied the rule differently in crimi nal and civil cases. But petitioner cites no such evidence. And the Court's reliance in Mosely-a civil case-on criminal case res gestae precedents suggests the opposite. Nor does he offer any other evidence that would contradict the conclu sion of a leading commentator writing in 1880 that there has never been a distinction between the application of the res gestae rule in criminal and civil cases. James B. Thayer, Bedingfield's Case, 14 Am. L. Rev. 817, 829 (1880).

4. Petitioner also errs in relying (Br. 27-28) on cases hold ing that a rape victim's identification of a perpetrator soon after the incident could only be introduced when the victim testified. The only case decided before the framing of the Confrontation Clause cited by petitioner is King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), and that case did not address a situation in which a statement was made during an ongoing emergency. Instead, the report of the case indicates that the rape victim's statement was made immediately after she arrived home. Nor does the report of the case indicate that the decision to exclude the victim's statement was based on grounds that would be relevant to an interpretation of the Confrontation Clause. The stated ground of the decision was that "no testimony whatever can be legally received except upon oath," and that if infants "are found incompetent to take an oath, their testimony cannot be received." 168 Eng. Rep. at 202-203.

The later English and state court cases cited by petitioner likewise do not have a bearing on whether emergency state ments are testimonial for Confrontation Clause purposes. While petitioner refers to the cases as involving fresh com plaints, he does not identify any case that involved an ongoing emergency. Indeed, in one of the cases petitioner cites, the statement at issue was made the day after the incident. See Regina v. Guttridges, 9 Car. & P. 471, 173 Eng. Rep. 916 (1840). In any event, state court and English cases decided long after the framing of the Confrontation Clause have little bearing on the meaning of that Clause.

III. MCCOTTRY'S STATEMENT IDENTIFYING PETI TIONER AS HER ASSAILANT WAS A RESPONSE TO EMERGENCY QUESTIONING AND THEREFORE NOT TESTIMONIAL

In this case, petitioner's claim of constitutional error re lates solely to the admission of McCottry's statement identi fying petitioner as her assailant. The Washington Supreme Court ruled that, to the extent any other evidence admitted from the 911 tape was error, that error was harmless, J.A. 128-129, and petitioner has not challenged that harmless er ror determination in this Court.

Under a correct understanding of the Confrontation Clause, McCottry's statement identifying petitioner as her assailant was permissible. As a review of the transcript of the 911 tape demonstrates, that identification was a response to emergency questioning and therefore was not testimonial.

At the outset of the 911 call, McCottry informed the 911 operator that "[h]e's here jumpin' on me again" and "[h]e's usin' his fists." J.A. 8. McCottry's use of the present tense and the distress in McCottry's voice would have alerted a reasonable 911 operator to the existence of an apparent immi nent danger to McCottry's safety. The operator then began asking questions that were reasonably necessary to deter mine how to resolve that emergency, such as whether the attacker had any weapons and whether he had been drinking. Those questions sought information that was important in assessing the nature of the danger to McCottry and others in the house, as well as to the police who would be coming to assist her.

The 911 operator's next question-"do you know his last name"- was of the same character. J.A. 9. The identity of a person who may pose a current danger is an important fact to know in determining how to address that possible danger. Officers going to the scene of an apparent emergency "need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186 (2004). For example, obtaining a sus pect's name "may inform an officer that a suspect * * * has a record of violence or mental disorder." Ibid. Accordingly, when McCottry named petitioner as the person responsible for hitting her, she was answering a question that was rea sonably necessary in determining how to respond to the emergency she had identified. She was not testifying.7

CONCLUSION

The judgment of the Washington Supreme Court should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney

FEBRUARY 2006

1 As the discussion above indicates, statements that are the product of emergency questioning need not qualify as excited utterances under state or federal law. The converse is also true: not all excited utterances are made in the heat of resolving an emergency. For example, while the state ment made by the child to the police officer in White v. Illinois, 502 U.S. 346 (1992), and discussed in Crawford, 541 U.S. at 58 n.8, was admitted as an excited utterance, it was made in response to police questioning 45 minutes after the assailant left the child's house (see White, 502 U.S. at 349-350) (describing and quoting officer's questioning of victim in White), and therefore was not the product of emergency questioning.

2 That is not to question that, in some cases, persons faced with emer gency questioning may well recognize on some level that their statements "might" be used for a "law enforcement purpose[]." Pet. Br. 41. But in the historical examples the declarants clearly understood that their statements were being taken for use in a legal proceeding, not simply that they might conceivably be used for some law enforcement purpose. It is that more focused understanding that is a characteristic of testimony. Indeed, all hearsay declarants, particularly those discussing criminal activity, might well realize to a greater or lesser degree of awareness that their words may later be used in legal proceedings. Yet any approach that has the potential to sweep all hearsay into the category of "testimonial" statements cannot be correct.

3 Wigmore believed that the "appreciation of the impropriety of using hearsay statements" took increasing hold during England during the 17th century, and, by the early 18th century, the general prohibition against hearsay declarations "receive[d] a fairly constant enforcement." 5 John H. Wigmore, supra, § 1364, at 18. "Modern scholars have concluded that at the time of the founding the law had yet to fully develop the exclusionary component of the hearsay rule and its attendant exceptions," Crawford, 541 U.S. at 69 n.1 (Rehnquist, C.J., concurring in the judgment), but there is little doubt that hearsay could form a basis for exclusion quite apart from confrontation concerns.

4 Rex v. Salter, Old Bailey Session Papers Nos. 330-332, at 280 (1755) (statements of victim after an assault identifying the defendant as the assailant) <http://www.oldbaileyonline.org/html_units/1750s/t17550910-29. html>; Rex v. Matthews, Old Bailey Session Papers No. 164, at 152-153 (1755) (statement of the victim to surgeon after the assault describing an altercation and where it occurred, but not identifying the assailant by name) <http://www.oldbaileyonline.org/html_units/1750s/t17750409_12.html>.

5 Commonwealth v. Hackett, 84 Mass. (2 Allen) 136 (1861) (admitting testimony of witness that 20 seconds after he heard the victim cry out that he had been stabbed, the victim told him that the defendant had stabbed him); People v. Vernon, 35 Cal. 49, 51 (1868) (admitting witness's testimony that 30 to 45 seconds after he heard shots, the victim of the shooting told him that the defendant had shot him) ; People v. Simpson, 48 Mich. 474, 479 (1882) (admitting witness's testimony that he overheard the victim exclaim immediately after being shot, "My God, Simpson, you have shot me," and that she subsequently responded to the question "Who shot you, Madam?" with, "John Simpson"); Reg. v. Lunny, 6 Cox C.C. 477 (1854) (admitting witness's statement that victim told him that he was robbed by man who walked with him to the crossroads); Aveson v. Kinnaird, 6 East. 189, 193, 102 Eng. Rep. 1258, 1261 (1805) (Chief Justice Lord Ellenborough stating in dicta that, "[i]f [a wife] declared at the time that she fled from immediate terror of personal violence from the husband, I should admit the evidence.").

6 Cases such as Trevanian, Foster, M'Pike, and Mosely are now understood as examples of excited utterances admitted as an exception to the general rule against the admission of hearsay, rather than as applica tions of the res gestae rule. E.g., White, 502 U.S. at 355 n.8 (citing Tre vanian). Regardless of how they are characterized, however, they show that statements made immediately or very soon after an occurrence have long been admissible in civil and criminal trials.

7 Although there is no need to decide whether the 911 operator's additional questions involved emergency questioning, as the Washington Supreme Court concluded, even after McCottry reported that petitioner was running out of the house and was driving away in his car, there was still an apparent emergency. At that point, there remained an imminent danger that petitioner would return immediately and assault McCottry again. Questions that were reasonably necessary to address that possibility constituted emergency questioning.