No, if it's for an emergency. It all depends on the main reason for the conversation. The 911 call was not testimony because Michelle was describing a dangerous situation as it was happening to get immediate help. But Amy's statement to the police *was* testimony because the danger was over, and the police were asking 'what happened?' to investigate a past crime. That's like being a witness, so her statement can't be used unless she testifies in court.

No, because neither situation was formal enough. This whole 'main reason' test is confusing and hard to use. The only time a statement should count as 'testimony' is when it's very formal, like a signed affidavit or a statement given at the police station. Since both the 911 call and the chat with the officer at the house were informal, both should have been allowed in court.

The Supreme Court said that what McCottry told the 911 operator could be used as evidence because she was asking for help during an emergency. She wasn't trying to prove something that happened earlier for a court case. But if there's no emergency happening and police are just asking questions to find out about a possible crime in the past, those answers can't be used in court unless the person who said them comes to testify.

Justice Thomas agreed with the decision in the Davis case but disagreed with the Court's reasoning in the Hammon case. He said the Court's rule for deciding if statements to police can be used as evidence is too broad and not focused on preventing the specific abuses the Constitution meant to stop. He thinks only formal statements, like in affidavits or police interviews, should be covered by this rule. The statements in the Davis and Hammon cases were informal, so he believes they should be allowed as evidence.

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.

"Statements are nontestimonial 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."

Only "testimonial statements" "cause the declarant to be a'witness' within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause."

—distinguishing street-corner "nontestimonial" statements to law enforcement officers from litigation-oriented "testimonial" statements and recognizing that police interrogation statements relating to past events relevant to a criminal prosecution are "testimonial statements" for purposes of the Confrontation Clause, in part because of their adversarial nature and, in part …

In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination

The victim was "speaking about events as they were actually happening, rather than `describ [ing] past events,'[citation

Similarly, in the context of police interrogations, the Court has held that a statement is testimonial if, under an objective evaluation of the particular circumstances, the primary purpose of procuring the statement was to create "an out-of-court substitute for trial testimony."

Statements are deemed testimonial, however, when circumstances objectively indicate that no ongoing emergency exists and that the primary purpose of interrogation is to prove or disprove past events with potential relevance to subsequent criminal prosecution.

No. Statements made to law enforcement are not 'testimonial' and do not violate the Confrontation Clause when their primary purpose, viewed objectively, is to enable police assistance to meet an ongoing emergency. In Davis, McCottry’s 911 call was not testimonial because she was speaking about events as they were actually happening, facing an ongoing emergency, and seeking immediate help. The questions asked were necessary to resolve that present emergency. In contrast, Amy Hammon's statements were testimonial because there was no ongoing emergency; the police were questioning her in a separate room to investigate 'what happened' in the past, not 'what is happening.' Her statements were a substitute for live testimony about past criminal conduct, making their admission a violation of the Confrontation Clause.

No. The Confrontation Clause is implicated only by 'formalized testimonial materials' such as affidavits, depositions, or custodial confessions, not by the informal questioning that occurred in either case. The majority’s 'primary purpose' test is unworkable, unpredictable, and disconnected from the historical abuses the Confrontation Clause was meant to prevent, which were formal, ex parte examinations. Therefore, the statements in Davis were properly admitted because they were informal. The statements in Hammon should also have been admitted because they lacked the necessary solemnity and formality to be considered 'testimonial,' so I dissent from the Court's conclusion in that case.

The Supreme Court held that the statements made during the 911 call were non-testimonial because they were made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. Therefore, they are not subject to the requirements of the Sixth Amendment's Confrontation Clause. However, statements are deemed testimonial when circumstances objectively indicate that no ongoing emergency exists and that the primary purpose of interrogation is to prove or disprove past events with potential relevance to subsequent criminal prosecution.

Justice Thomas concurred in the judgment in Davis but dissented from the Court's resolution in Hammon. He argued that the Court's test for determining the testimonial nature of statements is neither workable nor a targeted attempt to reach the abuses forbidden by the Confrontation Clause. In his view, statements regulated by the Confrontation Clause must include extrajudicial statements contained in formalized testimonial materials. The statements in Davis and Hammon did not fall into this category and thus should be admissible.

Davis v. Washington

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