High Court Limits Domestic Abuse Crime Reports as Trial Testimony

Out-of-court statements can't be used to bring charges, justices say, but a call to 911 can.
By David G. Savage, Times Staff Writer
June 20, 2006


WASHINGTON — The Supreme Court made it harder Monday to prosecute cases of domestic violence, ruling that a crime-scene report detailing a woman's claims of being beaten by her husband cannot be used against him at his trial unless she testifies in court.

In an 8-1 decision, the court said the use of such statements would violate a defendant's right to confront witnesses in court.

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Monday's ruling is the second in two years to sharply limit the power of police and prosecutors to use out-of-court statements in cases of domestic violence. But in a separate ruling Monday, a unanimous court agreed that 911 calls can be used in such trials.

Victims of such abuse are often unwilling to testify against their alleged abusers. In recent years, prosecutors have relied on their words in crime reports or in police station interviews to bring charges in court.

Until two years ago, the Supreme Court had said that reliable out-of-court statements could be used as evidence when witnesses were not available. This allowed for the use of such statements to prosecute cases of domestic violence.

But Justice Antonin Scalia has insisted the court should uphold the 6th Amendment as it is written. It says, "In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him."

Following Scalia's lead, the court in 2004 threw out the courtroom use of a woman's recorded statement given at a police station. Since she was a "witness," she must testify in court, the justices said in Crawford vs. Washington.

On Monday, the court went a step further and ruled that a crime-scene report also must be excluded.

This case began in February 2003 when police were called to the home of Amy and Herschel Hammon in Peru, Ind. The officers found a frightened woman on the front porch.

At first, she said she was "OK" and "nothing was the matter." But after an officer spotted broken glass in the living room, Amy Hammon described how her husband, in a rage, had thrown lamps, punched her and thrown her to the floor.

She later refused to testify against him, but prosecutors read her statement to the judge. Based on this evidence, Herschel Hammon was found guilty of domestic battery and the Indiana courts upheld his conviction.

But the Supreme Court overturned the conviction Monday.

Amy Hammon's statement was in essence an accusation of criminal wrongdoing and must be tested at trial, Scalia said in an opinion written for the court. The crime-scene report cannot serve as a "substitute for live testimony," he said.

However, the court took an opposite view regarding emergency calls to a 911 line. These are like a "cry for help," Scalia said, and they may be used in court so long as they are reports of an "ongoing emergency."

In this second case, the justices upheld the conviction of Adrian M. Davis for violating an order to stay away from an ex-girlfriend. Michelle McCottry, who lived south of Seattle, placed a frantic call to a 911 operator.

"He's here jumping on me again," she said in the recorded call. She reported Davis' name and was told police were on the way.

By the time they arrived, Davis was gone. But he was arrested and charged with a felony. McCottry did not testify, but a prosecutor played a tape of the 911 call to the jury, and Davis was convicted.

He appealed, and on Monday, the high court upheld his conviction in Davis vs. Washington because, Scalia said, an emergency report differs from the testimony of a witness.

"No witness goes into court to proclaim an emergency and seek help," said Scalia, who wrote the opinion in both cases.

The court drew a fine line that may be hard to apply in future cases.

For example, if the 911 operator had asked the woman a series of detailed questions, her replies would become like crime testimony, and therefore must be excluded from a trial.

But the emergency report itself is not testimony and can be used as evidence, he said.

Justice Clarence Thomas said he would have upheld the convictions in both cases. The officer who went to the Hammons' house was investigating a crime, not preparing a witness, and the woman's words should be used as evidence, Thomas said.

He said Scalia's opinion sets a standard that "is neither workable nor a targeted attempt" to stop abuses of the 6th Amendment.

Tap Dance

A movie is both a creation, and at the same time a recording of that same creation. This is one reason why movies, still so young in the whole history of art, will always be treasured as future antiquities.

This little tap dance from 1940 is a good example of that experience.

After

Justices Signal Court Testimony's Primacy

All but Ginsburg lean toward defendants having the right to 'be confronted' by accusers, even in cases of domestic violence and abuse.

By David G. Savage, Times Staff WriterMarch 21, 2006

WASHINGTON — The Supreme Court justices, with the exception of Ruth Bader Ginsburg, sounded Monday as if they were likely to bar prosecutors from using in court the words of alleged crime victims who speak to authorities but later refuse to testify.

Such a ruling would greatly strengthen the right of defendants to "be confronted with the witnesses against" them, in the Constitution's words. However, it would be a major setback for victims of domestic violence and sexual assault, who often are afraid to testify against their abusers.

Two years ago, the high court ruled that a crime witness' sworn statement at a police station could not be used at trial against the defendant if she did not appear in court to be cross-examined. On Monday, the court debated whether to extend that ban to include emergency calls to a 911 operator or statements from an alleged victim at a crime scene. The justices heard the appeals of two men whose convictions were based not on the court testimony of their accusers, but on their words as recorded by a 911 operator or a police officer at the scene.

"The practical reality is many women are scared to death" to testify against a spouse or partner who abuses them, said Ginsburg, now the only woman on the high court. In other instances, "they are so desperate financially" that they decide against testifying, she said. She questioned whether the Constitution should be interpreted to bar prosecutors from using their calls to a 911 line. "This is not just a call. It is a cry for help," Ginsburg said.

But Justice Antonin Scalia countered that the use of such statements in the place of a witness' testimony in court violated the principle set in the Constitution. The 6th Amendment says: "In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." Scalia said the court should enforce that right."I think the Founders believed in a system where the accused had a right to confront his accusers in court," Scalia said. "I can't see why it makes any sense" to allow a taped 911 call in place of a witness' actual testimony, he said. Under that approach, a defendant loses the right to contest the statements of his accuser, Scalia said.

In their questions and comments, most justices sounded as if they leaned toward Scalia's view. Though several said they were concerned about excluding reliable evidence from a trial, they said they did not see how they could make a special exception for emergency calls where domestic violence was at issue.In the first case heard Monday, Adrian Davis was convicted of violating a restraining order based on an ex-girlfriend's call to a 911 operator near Seattle. She failed to appear at the trial, but the prosecutor played the 911 tape for the jury.

In the second, Hershel Hammon was convicted of the domestic battery of his wife, Amy, based on her initial statement to a police officer who came to their house in Peru, Ind. She too did not testify. Davis' and Hammon's attorneys argued that "accusatory" statements to authorities should be barred from a defendant's trial unless the witness testifies. Prosecutors called them "emergency" statements and said they should be allowed, even if the witness fails to testify.

Regardless of what the high court decides, police officers will remain free to testify about what they see at a crime scene. For example, if police officers observe an apparent crime victim who has been bruised or bloodied, they can testify as a witness to what they have seen.What is in doubt concerns the words used by the alleged victim. If, for example, a woman says, "He hit me!" prosecutors say that statement can be used in court because it is an emergency report at the crime scene. Defense lawyers say those words amount to testimony and should be excluded if the alleged victim fails to testify.

Lawyers on both sides agreed that where evidence showed a criminal defendant had intimidated a witness into not testifying, the defendant forfeited his right to confront his accusers in court. But prosecutors told the justices that those cases were hard to prove. The justices will vote privately later this week on the cases of Davis vs. Washington and Hammon vs. Indiana, and will issue a ruling by the end of June.