Explain why the supreme court has determined types of evidence that are non-testimonial as opposed to evidence that is considered to be testimonial?

Answer 1

Answer

Non-testimonial statements are those not intended to be preserved at trial, and not given in the process of an investigation, such as a transcript of a 911 call where the witness is describing a crime as it occurs, and is seeking aid rather than retribution. Testimonial statements are given after the crime has occurred, during an investigation of events. In the second instance, the witness is protected by police, not in immediate danger, and may have formulated a motive for giving rebuttable information.


Explanation

The Supreme Court's rulings on testimonial statements and hearsay exceptions rests on the Sixth Amendment's Confrontation Clause, guaranteeing the right of the accused "to be confronted with the witnesses against him."

Certain circumstances, such as death of a material witness whose evidence is key to prosecution, raises the issue of how - or whether - that person's testimony can be presented in court. Specifically, the question becomes whether statements the witness made to police (hearsay) are admissible, or whether they have to be excluded because the defendant has no opportunity to rebut the hearsay evidence on cross-examination, since the witness isn't available to answer questions.

In Crawford v. Washington, 541 US 36 (2004), the Supreme Court ruled 9-0 that the standing precedent under Ohio v. Roberts, (1980), holding certain testimonial hearsay evidence admissible if it was "reliable" was tantamount to assuming the defendant was guilty. Justice Scalia wrote: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty...."

The Supreme Court decided the key was not a matter of reliability, but whether certain evidence could be considered testimonial, and therefore inadmissible in the absence of the witness; or whether the evidence qualified as non-testimonial, and therefore admissible on the grounds that introducing the material didn't trigger the Confrontation Clause.

The Court determined that where testimonial statements are at issue, the only indicator of reliability sufficient to satisfy constitutional demands is confrontation; therefore, statements made to police could not be admitted into evidence unless the person who made the statements was present in court. The decision did not, however, delineate exceptions to the rule that could be considered non-testimonial.

In 2006, the Supreme Court clarified their decision in Crawford in tandem cases, Davis v. Washington and Hammon v. Indiana, 547 US 813 (2006) that stipulated witness statements not intended to be preserved at trial, but to resolve an "ongoing emergency," should be considered non-testimonialevidence and did not require the witness to be present in court for cross-examination.

In Davis, the evidence in question was the transcript of a 911 call in which Davis' girlfriend reported to police that she had just been assaulted by her boyfriend, who had left the scene. The Court determined her statements were non-testimonial because of the circumstances under which the information was given, that the girlfriend had not intended to describe a past crime, but to seek emergency assistance for a crime that was underway and described events as they occurred.

In Hammon, police were summoned to the Hammon's home by a third party reporting a domestic disturbance. The fight had ended by the time police arrived, but officers managed to talk their way into the house and subsequently obtained an affidavit from Amy Hammond stating that her husband had beaten her. Mrs. Hammond failed to appear for her husband's hearing, and the prosecution attempted to substitute the affidavit for direct testimony.

The Court held that Amy Hammon's statements were testimonial, because they were given to police during an investigation of a crime that had already concluded. Testimonial statements require the presence of the witness in court, so he or she may be cross-examined by the defendant's counsel.

The distinction drawn between the two types of evidence was summarized: "The statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past."

The Court remanded Hammon to the Indiana courts for fact-finding: "The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing-under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation-is properly raised inHammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon's affidavit."


For a detailed discussion of other exceptions to the hearsay rule see the attached link.