A long and winding road
On August 28, 2004, Evelyn Rivera and her husband, Adam Pabon, saw a man beating a woman, whom they recognized as a neighbor, outside their house. Rivera called 911, and the assailant took off when the police arrived. The victim told Pabon that the guy who beat her was her former boyfriend, Luis Colon; she told the police officer who responded to the call that she had lived with him for about two years, but they'd separated six months ago.
The victim didn't show up at Colon's trial a month later for domestic violence. No matter; the court allowed the statements to Pabon and the police office as an "excited utterance."
Colon was convicted, and sentenced to 30 days in jail. Three weeks ago the 6th Circuit ended Colon's odyssey through the criminal justice system by concluding that the admission of those statements didn't violate Colon's confrontation rights under Crawford v. Washington.
The first stop on that journey was the 8th District Court of Appeals, which affirmed Colon's conviction in 2007. I took a look at the decision in a post back then, and concluded that it was "about as good an explanation of the law pertaining to Crawford v. Washington as any that’s been handed down recently." And it was. It realized that Crawford had implemented a two-step analysis for determining whether out of court statements were admissible. In the first step, you have to determine whether the statement is testimonial; if it is, it's not admissible. If it isn't testimonial, you have to proceed to the next step, which is determining whether it falls within an exception to the hearsay rule. Only if it meets both requirements -- it's non-testimonial, and it falls within a hearsay exception -- is it admissible.
The court concluded that the victim's statements weren't testimonial, but were intended to "enable the police to assist the victim in an ongoing emergency." What was that emergency? "To apprehend the person involved."
The Ohio Supreme Court denied review, so Colon sought habeas relief in the Federal courts. (And if you're wondering how the hell a misdemeanor case gets into Federal habeas, after various appeal bonds, Colon still has 15 days to do on his sentence.) The magistrate recommended denying relief, but the judge overruled him and granted the petition. And on November 4, in Colon v. Taskey, the 6th Circuit reversed, banking heavily on its earlier en banc decision in US v. Arnold. There, the victim had called 911 in a panic, claiming that her mother's boyfriend was trying to kill her. She ran out of the house and repeated the claim to the police when they pulled up, and yet again just a moment later when the boyfriend returned.
So let's pop the hood on this sucker and take a look.
The key case here is the Supreme Court's 2006 decision in the companion cases of Davis v. Washington and Hammon v. Indiana. In Davis, the victim made a 911 call to the police, telling the dispatcher that her husband was beating her. In Hammon, the police got a call about a domestic disturbance, but when they arrived, the woman told them that everything was alright. Except for the bruise on her face; after they took her into the kitchen and questioned her more closely, she admitted that her husband had hit her. The Supreme Court held that the statements in Davis weren't testimonial, the statements in Hammon were, drawing the following distinction: statements are not testimonial when the primary purpose is to obtain police assistance during an ongoing emergency, but are testimonial when the primary purpose of the interrogation is to obtain past facts relevant for criminal prosecution.
The issue is what constitutes an emergency? In Davis, the Court had seemed to draw a line: what is happening versus what has happened. The victim in Davis was being beaten at the time she called the police; the victim in Hammon was relating events which had already transpired.
But that's not always a bright line. Take Arnold, for example. It's easy to argue that the "emergency" still existed, especially when the boyfriend came back to the scene. (The victim had told he police he'd had a gun.) Colon is more of a stretch. There, Colon fled the scene as the police arrived, and no weapon was involved; he was unlikely to return. The 6th Circuit essentially agreed with the 8th's determination that the emergency existed until the assailant was apprehended.
There's some argument to be made here: since the "primary purpose" of the victim's call is to summon assistance, the emergency arguably exists as long as the victim is in danger. But this makes a much better argument in Arnold than it does in Colon. Even the contention that the emergency required apprehension of the assailant because he could return once the police left doesn't have much merit, in light of Hammon; the husband in Hammon was right there during the questioning, and certainly would've been in a position to inflict further harm once the police left, yet the court held that his wife's statements were testimonial.
The decision in Colon is arguably wrong -- and yes, back when I first talked about it I came to the opposite conclusion. On further reflection, though, it seems to carry the emergency doctrine farther than intended. The 6th Circuit's affirmance of the 8th District should be taken with a grain of salt: the standards for habeas review are very demanding -- the state court's decision must be not merely incorrect, but an "unreasonable" interpretation of the law. The 6th Circuit opinion notes that "the situation in Arnold may have involved a more obvious 'emergency,'" but in light of Arnold, which came down just four months after the 8th's decision in Colon and involved "analogous facts," the court could not conclude that the 8th's court's application of Crawford and Davis was unreasonable.
Part of the problem here is the haziness of the standards for "testimonial statements" once we move past the obvious cases, like written statements, affidavits, custodial interrogations, and the like. The "objective witness" test found in dicta in Crawford -- whether an objective witness would reasonably anticipate that her statement would be available for later use at trial -- has its own difficulties, but the "primary purpose" test is arguably even more difficult. In fact, it employs different perspectives in each of the two branches: the test looks at it from the witness' perspective in determining whether he was attempting to obtain assistance for an emergency, then looks at it from the police officer's perspective in deciding the purpose of the interrogation. A lot of this might be cleared up in the Supreme Court's upcoming decision in Michigan v. Bryant (oral argument discussed here). But I've been doing this blog for almost five years now, and I read an awful lot of cases, and I'm trying to think of the last time I read one and thought, "well, that settles that."
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Speaking of blogging, I'll be off the rest of the week, stuffing my face. See you on Monday.