Davis v. Washington
The Court ruled that statements made to a 911 operator during an ongoing attack can be used at trial even if the caller never testifies, but statements a domestic-violence victim gives police after the danger has passed generally cannot be used without letting the defendant cross-examine her.
The decision draws a new line for the Confrontation Clause: statements made to help police handle a live emergency are treated differently from statements made to help police investigate a crime that already happened, which matters enormously for how domestic violence and other cases get prosecuted when victims don't show up to testify.
“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.”
The Court's core test distinguishing testimonial from nontestimonial statements to police.
How it got here: Washington's courts affirmed Davis's conviction; Indiana's courts affirmed Hammon's conviction; both men sought and received Supreme Court review.
The Case in Depth
What happened
Michelle McCottry called 911 during a physical assault by her former boyfriend Adrian Davis and identified him by name; she did not testify at his trial. Separately, police responding to a domestic disturbance at Amy and Hershel Hammon's home questioned Amy after the incident had calmed down and had her sign a battery affidavit; she also did not testify at Hershel's trial. Both men argued that using the women's out-of-court statements against them violated their right to confront witnesses.
The question before the Court
When someone tells a 911 operator or a police officer about domestic violence, does the Constitution let prosecutors use that statement at trial if the victim never testifies?
Why it matters
Prosecutors in domestic violence cases, where victims often don't testify out of fear or pressure, now know that 911 calls made during an attack can still go before a jury, but police-station-style Q&A about what already happened generally cannot, unless the defendant caused the witness's absence through wrongdoing.
What changes now
The Davis conviction stands as final. The Hammon case goes back to the Indiana courts, which may consider whether Hershel forfeited his confrontation rights by wrongfully causing his wife's absence from trial; if no such forfeiture is found, Amy's statements must be excluded and Indiana must decide how to proceed without that evidence.
What this does not decide
The Court did not create an exhaustive list of which statements count as testimonial versus nontestimonial in every circumstance, and left open how the line applies to 911 calls after an emergency ends, to statements made to people other than police, and to whether Hammon forfeited his rights by wrongdoing.
Concurrences and dissents
Dissent in part — Justice Thomas
Justice Thomas argued the Court's 'primary purpose' test is unpredictable and disconnected from history. He would limit the Confrontation Clause to formalized statements like affidavits, depositions, and custodial confessions, and would have found neither McCottry's 911 call nor Amy Hammon's statements testimonial, since neither was formal, sworn, or Mirandized. He therefore agreed with the outcome in Davis but dissented in Hammon.
How the Court got there
The legal reasoning, step by step
- Building on Crawford v. Washington, the Court held that the Confrontation Clause only blocks 'testimonial' statements from a witness who doesn't appear at trial — statements made mainly to establish facts for a future prosecution, as opposed to casual or urgent remarks.
- The Court set a new test: a statement is nontestimonial when, viewed objectively, the primary purpose of police questioning was to help police handle an ongoing emergency, and testimonial when the primary purpose was instead to gather facts about a crime that had already happened.
- Applying this test to McCottry's 911 call, the Court found she was describing events as they happened, facing an active physical threat, and speaking informally and urgently — all pointing to an ongoing emergency rather than an effort to build a case.
- Applying the same test to Amy Hammon's statements, the Court found no ongoing danger when police questioned her — she said things were fine, the argument had stopped, and the officer was reconstructing what had already occurred rather than responding to a threat in progress.
- Because Amy's questioning resembled formal police interrogation aimed at proving a past crime, and because she was separated from her husband while giving her account, the Court concluded her statements were testimonial and therefore inadmissible absent cross-examination.
- The Court left open whether Indiana could still admit the statements if it found on remand that Hershel Hammon had forfeited his confrontation rights by wrongfully causing Amy's absence from trial.
Doctrinal impact
Cases affected by this decision
Reaffirms Ohio v. Roberts (448 U. S. 56)
Notes that Crawford already overruled Roberts by restoring unavailability and cross-examination requirements.
Reaffirms Crawford v. Washington (541 U. S. 36)
Builds directly on Crawford's testimonial-statement framework to resolve these two cases.