What’s My Purpose?: Opinion Reveals Criteria Washington Courts Use In Determining Whether Statements Are Testimonial
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is “testimonial,” admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term “testimonial,” with the most commonly adopted one defining a “testimonial” statement as one that “was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.” The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Supreme Court, however, still has not clarified exactly what factors courts should consider in determining whether a statement is “testimonial.” That has left lower courts to their own devices, and the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Cason, 2010 WL 3398522 (Wash.App. Div. 1 2010), reveals the criteria that Washington courts use to determine whether a statement is “testimonial.”
In Cason, James Cason was convicted of assault in the second degree while armed with a deadly weapon. The victim of that crime was Portia Frazier, who had called 911 at 3:33 a.m. on May 22, 2007 and said that Cason was in her apartment, that she had asked him to leave but he refused, and that he was keeping her awake. Thereafter, “[t]wo more 911 calls were received from the same number at 3:43 a.m. and 3:44 a.m. In both calls, noise could be heard but nobody spoke.” Later,
at 3:51 a.m. according to the video recording, while Officer Janes was waiting in his patrol car for backup to arrive, he saw Frazier stagger out of the front door of the building and lean against the wall. Her pants and shirt had blood on them. Officer Janes approached Frazier and observed cuts between two to five inches long on her face and neck, as well as apparent bruises on her face. Frazier had wounds on her hand, and her sweater was cut open. Officer Janes was concerned that Frazier’s injuries might be life-threatening because she appeared to be bleeding profusely. He asked Frazier what was going on. Frazier said that she had been hit with a liquor bottle and, when asked the name of her assailant, responded, “James Cason.” She said she did not know where Cason was or if he was still inside. During the exchange, Frazier was cradling her head, moaning, and rocking back and forth. She eventually slumped to the sidewalk. Within a few minutes additional police officers and the medics arrived at the scene. The officers who went inside the apartment building observed blood marks leading from the entryway to the elevator, on the elevator buttons, and down the third-floor hallway from the elevator to Frazier’s apartment. The door of the apartment was ajar, and the apartment was in disarray. Couches and tables were turned over, broken bottles, glass, and lamps were on the floor, and there was blood on the wall and on the receiver of the telephone, which had been pulled out of the wall. No one was found inside the apartment, nor was anyone matching the description of James Cason found in or around the building.
Frazier did not appear for trial despite being personally served with a subpoena, but Officer Janes testified about his encounter with her. After he was convicted, Frazier appealed, claiming, inter alia, that Frazier’s statements were admitted in violation of his rights under the Confrontation Clause. In resolving this issue, the Court of Appeals of Washington, Division 1, had to decide whether her statements were “testimonial,” and the court noted that
Washington courts have interpreted Davis as establishing the following criteria to determine if the primary purpose of an interrogation was to enable police assistance to meet an ongoing emergency, which would qualify the statements as non-testimonial:
(1) Was the speaker speaking about current events as they were actually occurring, requiring police assistance, or was he or she describing past events? The amount of time that has elapsed (if any) is relevant. (2) Would a “reasonable listener” conclude that the speaker was facing an ongoing emergency that required help? A plain call for help against a bona fide physical threat is a clear example where a reasonable listener would recognize that the speaker was facing such an emergency. (3) What was the nature of what was asked and answered? Do the questions and answers show, when viewed objectively, that the elicited statements were necessary to resolve the present emergency or do they show, instead, what had happened in the past? For example, a 911 operator’s effort to establish the identity of an assailant’s name so that officers might know whether they would be encountering a violent felon would indicate the elicited statements were nontestimonial. (4) What was the level of formality of the interrogation? The greater the formality, the more likely the statement was testimonial. For example, was the caller frantic and in an environment that was not tranquil or safe?
Applying these criteria, the court was easily able to find that Frazier’s statements were non-testimonial, concluding that
In the instant case, an application of Davis ‘ analysis indicates that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, rather than to establish or prove past events potentially relevant to criminal prosecution. Frazier called 911 at 3:33 a.m. to report that James Cason refused to leave, and Officer Janes encountered her at 3:51 a.m. Frazier made the disputed statements to Officer Janes no more than 18 minutes after she made the 911 call, at which point she had not yet been assaulted. Under the first factor, very little time had elapsed since the assault itself. Under the second factor and third factor factors, a reasonable listener would have concluded that Frazier was facing an “ongoing emergency,” because she needed medical assistance and because Cason may still have posed a threat. When Officer Janes arrived, the assailant’s whereabouts were unknown, and there was an ongoing need to find him, because he could have been nearby or in the building. The testimony of Officer James Stevens, who arrived as back-up to Officer Janes, indicates that the officers were dealing with a number of issues, including obtaining medical care for Frazier, getting assistance from other units, looking for the suspect, and investigating the scene for evidence. Under the circumstances, there was a significant need for information to resolve a present emergency. Officer Janes testified that he asked Frazier what the suspect looked like so that if he saw the suspect in or around the apartment building, he would know who to look for. Officer Janes was concerned that the suspect might come at him from out of the doorway, from up the alley, or from behind. As in Ohlson, one of the top priorities was to determine whether there was an ongoing danger to Frazier or to others. Finally, under the last factor, the interrogation of Frazier by Janes was not formal. According to Janes, Frazier was bleeding profusely, and the video recording depicts her in a dazed and seriously injured state. The situation was not tranquil or safe, moreover, where the assailant’s whereabouts were unknown and he could return at any moment.