The Supreme Court took up two important cases that should explain and probably narrow the decision in Crawford v. Washington. Crawford was one of two important decisions in Criminal Law handed down in the 2003-04. In overruling Ohio v. Roberts, the Supreme Court reaffirmed the importance of a criminal defendant's right to confront his accuser. The decision received immediate criticism from Domestic Violence prosecutors because so many of their cases require the use of unavailable witnesses, many who are unavailable of their own volition (They refuse to cooperate or leave town etc.)The issues presented by the two cases ( Davis v. Washington and Hammond v. Indiana) concern statements that were given outside of the courtroom. Davis is a 911 statement, and Hammond concerns a statement written out by a victim while being visited by police.
At his new blog Orin Kerr.com, Professor Kerr of The George Washington University Law School has a short post on the arguments and a prediction that the court will distinguish between the two cases finding that 911 tapes will come in dispite the Crawford ruling, and the Hammond written statement will be found to be testimonial in nature and thus run afoul of Crawford.
I have to agree with Professor Kerr in that the 911 tape, under most (but not all)circumstances, would not be so much testimonial as it might be a "quasi" res gestae statement. In other words, if the call is made reasonably shortly after the event (like 10-15 minutes after the first opportunity to make the call) then it would seem this is more of a safety or reporting issue, than a testimonial issue. The witness is not giving information primarily seeking to convict the individual but more trying to get the information to police to obtain an arrest, redress or even safety of themselves or others. The Davis cases should be very fact specific and very Strictly interpreted as the Right to Confrontation is a basic right of the ,US Constitution. In Davis the witness called 911 and hung up. The 911 operator calls back and gets information and sends the police. The witness doesn't come forward to testify and the prosecution uses the tapes and the pictures of the beating. The Davis argument is interesting as it was aimed directly at Scalia and Thomas. Davis argued that even at the time of the Constitution's ratification, the confrontation clause was so important that the old hue and cry reports were not usable at trials. The originalist theory may carry the day with The Chief, Scalia Thomas and Alito but will it turn off a fifth vote?
The statement in Hammond clearly was taken as part of an investigation meant to nail down testimony and very likely to obtain an arrest warrant or a charging document. In Hammond investigators came pursuant to a DV report. They meet the witness who denies any problem. They say she appears frightened. They go inside and see the remnants of the fight. The defendant says the argued but it did not become physical. The police go back to the woman and again ask what happened and this time she tells them. They ask her to write it up.
It seems clear that the written statement was taken to be a testimony in the witnesses own words as to what happened. The statement was not necessary to help them identify a potential attacker or to get the witness to safety. Hence the only reason for the written statement was for evidentiary preservation. Uncrossable use of this type of statement appears to be exactly what Crawford was trying to stamp out.
There is an excellent treatment of both cases with links to the briefs and amicus at Scotusblog.