US Supreme Court Case Applying the Confrontation Clause in a Domestic Abuse Context
Wednesday, June 21, 2006 11:10 AM

In Davis v. Washington, the US Supreme Court interpreted the Confrontation Clause of the Sixth Amendment and determined how it applied to victim statements in two domestic abuse cases.  The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."  In order to determine what the Confrontation Clause covers, the courts had to determine who qualifies as a witness.  In Davis, the court defined witness as one who bears testimony.  In Crawford v. Washington, testimony was defined as a statement made for the purpose of establishing some fact.  Thus testimonial statements qualify a person as a witness.  In Crawford, the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.”  (Crawford, pages 53-54)  Relying on this case, the Court in Davis ruled that only testimonial evidence made a person a witness within the meaning of the Sixth Amendment; therefore, only testimonial evidence was subject to the Confrontation Clause. 


Essentially, the Confrontation Clause requires a witness bear testimony at trial if they are available.  If they are unavailable, the defense must have been given a prior opportunity to cross-examine.  This is particularly important in the domestic abuse context, because victims are frequently hesitant to appear at trial.  First of all, victims of domestic abuse have a close relationship with their abuser and are sometimes reluctant to press charges when they are not in the heat of an abusive situation.  Furthermore, victims of domestic abuse are terrified of their abuser, giving rise to the battered women’s syndrome being increasingly recognized by courts.  Victims believe their abusers are invincible, so there is nothing more terrifying than facing their abuser face-to-face, even with the protections of a courtroom.  Statistics also prove that victims are in more danger when they bring charges against their accuser.  Experience has shown them that the government is not capable of protecting them from their abuser’s wrath.  As a result, many victims of domestic abuse will not testify against their abuser, which makes it very difficult to prove the abuse charges as there are often no other direct witnesses to the abuse.  See generally Brief of Amici Curiae.

In the two cases examined in Davis v. Washington (Davis and Hammon), the victims of the domestic abuse did not testify at trial, so the state admitted other statements by the victims as evidence.  The Davis Court held that when statements are made with the primary purpose of obtaining information to respond to an ongoing emergency the statement are not testimonial and are not subject to the Confrontation Clause.  On the other hand, statements made with the primary purpose of establishing events for a later criminal prosecution are testimonial and subject to the Confrontation Clause. 

In the Davis case, the state admitted the 911 call by the victim in which she identified the defendant as her assailant.  The Davis Court held the 911 call was non-testimonial and was thus not subject to the Confrontation Clause, because it was made during an ongoing emergency.  The Court differentiated between the beginning portion of the 911 call, during which the victim was still under attack by the abuser, and the later portion of the call after the abuser had fled the premises.  The court felt the beginning of the conversation, in which the victim identified her assailant, was for the primary purpose of responding to the current threat.  Though the Court was not asked to directly address the latter part of the 911 call, the Court did make note that after the abuser fled the premises and the threat averted, it is likely the interrogation shifted from non-testimonial to testimonial.  As a result, the beginning of the call was not subject to the Confrontation Clause and was therefore admissible.

In the Hammon case, the state admitted written statements the victim made to police when the police responded to a domestic disturbance call.  The Davis Court ruled in this instance that the statements were testimonial and were therefore subject to the Confrontation Clause.  The Court determined the statements in this situation were taken after the abusive situation had ended and under the protection of police.  Therefore, the primary purpose of the statements was not to respond to the situation, but to gather information for a potential criminal prosecution.  The Court did state, however, that this ruling did not bar the Indiana courts from determining that the defendant had forfeited the protection of the Confrontation Clause by wrongfully persuading the victim not to testify through threats and coercion.  Thus, courts have the opportunity to allow even testimonial evidence without requiring the protection of the Confrontation Clause if the state can prove the defendant prevented the victim from testifying at trial in some way.

The Supreme Court was careful to note that the Davis ruling does not establish specifically enumerated categories (911 calls or initial questions at the scene of a crime) regarding the Confrontation Clause, but rather the ruling establishes a standard with which courts may distinguish whether the Confrontation Clause is triggered.

Compiled from: Davis v. Washington, No. 05-5224 and No. 05-5705, 2006 WL 1667285 (S. Ct. June 19, 2006).

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

Brief of Amici Curiae of National Coalition to End Domestic Violence et. al., Davis v. Washington, 2006 WL 284229 (U.S. 2006) (Nos. 05- 5224 05-5705).