Justice Scalia concluded with the following in relevant part: Amy Hammon’s statements were testimonial. They were not much different from those in Crawford. It is clear from the circumstances that Amy’s interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. While the formal features of Crawford’s interrogation strengthened her statements’ testimonial aspect, such features were not essential to the point. In both cases, the declarants were separated from the defendants, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place sometime after the events were over. For the same reasons the comparison to Crawford is compelling, the comparison to Davis is unpersuasive. 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 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 in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon’s affidavit.
Justice Thomas dissented in part not because he would have found a violation of the Confrontation Clause in the Davis case, but because he would have allowed the hearsay testimony to be admitted in both cases. He believed that drawing the distinction based on the “primary purpose” of the statement(s) was unpredictable. Instead, he would return to the Supreme Court’s decisions that focused on the “reliability” of the statements. This view overlooks that “reliability” is more of a jury question than a question for the judge who is supposed to serve as the gatekeeper at trial as opposed to the fact-finder.
