Sixth Amendment Confrontation Clause jurisprudence has undergone dramatic retooling in recent years, with the Supreme Court jettisoning the reliability-focused test of Ohio v. Roberts (1) as "permanently unpredictable" and lacking historical justification. (2) In an effort to restore coherence to the doctrine, the banner decision of Crawford v. Washington introduced a new analytical framework: the Confrontation Clause protects the criminally accused against the admission of out-of-court statements that are testimonial in nature, unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him. (3) Crawford was heralded as "a return to constitutional roots" (4) and "a successful blend of originalism and formalism," (5) even as it declined to articulate a comprehensive definition of "testimonial." (6) Last Term, in the consolidated cases Davis v. Washington and Hammon v. Indiana, (7) the Court held that statements are testimonial when "circumstances objectively indicate" that the interrogation's primary purpose is "to establish or prove past events potentially relevant to later criminal prosecution," and are nontestimonial when the primary purpose is "to enable police assistance to meet an ongoing emergency." (8) Although providing a crucial elaboration on the framework for addressing testimonial statements, the Court's opposing outcomes in Davis and Hammon muddy the originalist, bright-line spirit of Crawford. (9) Rather than providing clear guidance for police and lower courts, the Court advanced distinctions that are illusory and inadministrable and that encourage police to circumvent the confrontation right at a heavy cost to victims.
Davis, a domestic violence case in which the complainant later refused to testify, brought into focus the extent to which prosecutions may proceed without confrontation. On February 1, 2001, a 911 dispatcher received a hang-up call from Michelle McCottry in the midst of a domestic dispute with her former boyfriend, Adrian Davis. (10) When the emergency operator traced the call and reached McCottry, she learned that Davis was "[t]here jumpin' on [McCottry] again." (11) McCottry told the operator that Davis had been "usin' his fists" (12) to beat her and described him running out of the door. (13) Within minutes, two police officers arrived on the scene and witnessed McCottry's frantic efforts to gather her belongings and her children while displaying what looked like "fresh injuries on her forearm and her face." (14)
Davis was charged with violating a no-contact order. (15) Because McCottry failed to appear at trial, (16) the State's only witnesses were the responding officers. The officers were unable to testify as to how McCottry's injuries had been inflicted; the sole evidence attributing her injuries to Davis was the tape recorded exchange between her and the emergency operator. (17) The trial court, despite Davis's objections, deemed the tape recording admissible, and Davis was found guilty. (18) The Washington Court of Appeals affirmed the conviction, holding that the trial court's admission of the recording was appropriate and consistent with Davis's confrontation right. (19) The Supreme Court of Washington affirmed en banc. (20) Applying the Crawford framework, the court concluded that McCottry's naming of Davis as her assailant on the recording was nontestimonial, and dismissed any hypothetical error in admitting the remainder of the recording as harmless beyond a reasonable doubt. (21)
Hammon involved another domestic violence case, reported to responding police officers on-the-scene rather than to a 911 operator. On February 26, 2003, two officers were dispatched to the residence of Indiana couple Hershel and Amy Hammon. (22) Amy stood by herself on the front porch, and although she "told them that 'nothing was the matter,'" she "appear[ed] 'somewhat frightened.'" (23) The officers secured Amy's consent to their entry into the house, where they observed "a gas heating unit in the corner of the living room with flames coming out of the . …