The Court continued in relevant part: McCottry’s statements identifying Davis as her assailant were not testimonial. This case requires the Court to decide whether the Confrontation Clause applies only to testimonial hearsay, and, if so, whether the 911 recording qualifies. Crawford suggested the answer to the first question, noting that “the Confrontation Clause applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’” Only “testimonial statements” cause a declarant to be a witness. The Court is unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined. Well into the 20th century, this Court’s jurisprudence was carefully applied only in the testimonial context, and its later cases never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases involving testimonial hearsay.
The question in Davis, therefore, is whether, objectively considered, the interrogation during the 911 call produced testimonial statements. In contrast to Crawford, where the interrogation took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The difference is apparent here. McCottry was speaking of events as they were happening, while Crawford’s interrogation took place hours after the events occurred. Moreover, McCottry was facing an ongoing emergency. Further, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the difference in the level of formality is striking. Crawford calmly answered questions at a station house, with an officer-interrogator taping and taking notes, while McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even safe. Thus, the circumstances of her interrogation objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. She was not acting as a witness or testifying.
This holding is disturbing. First, it opens the door for people to make false, unsworn, and inflammatory claims over the phone that can be used to incriminate without any concern for consequences. Even if the statements at issue are not intentionally false, our case law recognizes that high stress encounters lead to unintentionally false statements. At a minimum, the declarant should still be subject to cross-examination before such statements can be used as evidence in a criminal trial.
