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Supreme Court Considers Use of 911 Calls as Evidence Against Attackers

By Linda Greenhouse
THE NEW YORK TIMES


WASHINGTON

A crime victim’s emergency call to 911, when introduced in court, can provide powerful evidence of the attacker’s identity and the circumstances of the crime.

Perhaps too powerful — or so most Supreme Court justices seemed to conclude during an argument Monday on whether the prosecution could use such evidence without violating defendants’ constitutional rights to face their accusers in the courtroom.

The constitutional problem arises when the victim fails to appear in court and is therefore not available for cross-examination.

In domestic violence cases, the scenario is common; in one study cited to the Supreme Court, as many as 90 percent of victims of domestic violence fail to cooperate with the prosecution, because of fear or misplaced loyalty to their abusive partners. Rather than abandon such cases, a growing number of states have begun to relax their evidentiary rules and permit juries to hear 911 tapes or read transcripts of police interviews with victims.

Two years ago, however, the Supreme Court issued an unmistakable warning that these efforts were likely to collide with the Sixth Amendment’s Confrontation Clause, which guarantees to a criminal defendant the right “to be confronted with the witnesses against him.”

In Crawford v. Washington, the court laid down a new rule: A “testimonial” statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination.

Now the question is whether the justices meant what they said, even in situations with strong policy arguments for bending the rules. Based on their responses in the courtroom on Monday, they did.

The Crawford case barred the admission of a woman’s tape-recorded eyewitness account of a fight in which her husband stabbed another man. But the court stopped short of defining the various types of “testimonial” statements to which the newly empowered Confrontation Clause would now apply. Defense lawyers around the country soon began to argue that the decision should bar the admission of 911 calls and of statements given to police officers who respond to a crime scene.

Two cases were argued to the court on Monday, one of each type. Both have drawn wide attention from organizations concerned with domestic violence. In Davis v. Washington, No. 05-5224, the Washington Supreme Court rejected a defense argument that a 911 call from a woman who said her former boyfriend had violated a no-contact order and was beating her constituted a testimonial.

The incident took place, and the man, Adrian M. Davis, was convicted, before the Crawford decision. The victim, Michelle McCottry, was subpoenaed but failed to appear in court. Following the Crawford decision, Davis’ lawyers argued on appeal that the admission of the 911 tape violated his right to confrontation, but the Washington Supreme Court said the call was not testimonial. It was, the court said, a request for “help to be rescued from peril.”

In the second case, Hammon v. Indiana, No. 05-5705, the Indiana Supreme Court likewise upheld a conviction for domestic battery, ruling that a wife’s statement to the police officer who arrived to investigate a report of a disturbance could be used as evidence against her husband, Herschel Hammon. The wife, Amy Hammon, failed to appear in court. Her statement to the investigating officer was not testimonial, the Indiana court ruled, because her “motivation was to convey basic facts” rather than provide evidence for later use at trial.