These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause.
The relevant statements in Davis v. Washington, No. 05-5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case:
As the conversation continued, the operator learned that Davis had "just r[un] out the door" after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9-10. McCottry started talking, but the operator cut her off, saying, "Stop talking and answer my questions." Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was "to get his stuff," since McCottry was moving. Id., at 11-12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. "They're gonna check the area for him first," the operator said, "and then they're gonna come talk to you." Id., at 12-13.
The police arrived within four minutes of the 911 call and observed McCottry's shaken state, the "fresh injuries on her forearm and her face," and her "frantic efforts to gather her belongings and her children so that they could leave the residence." 154 Wn.2d 291, 296, 111 P.3d 844, 847 (2005) (en banc).
The State charged Davis with felony violation of a domestic no-contact order. "The State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared
In Hammon v. Indiana, No. 05-5705, police responded late on the night of February 26, 2003, to a "reported domestic disturbance" at the home of Hershel and Amy Hammon. 829 N.E.2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing "`somewhat frightened,'" but she told them that "`nothing was the matter,'" id., at 446, 447. She gave them permission to enter the house, where an officer saw "a gas heating unit in the corner of the living room" that had "flames coming out of the . . . partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit." App. in No. 05-5705, p. 16.
Hershel, meanwhile, was in the kitchen. He told the police "that he and his wife had `been in an argument' but `everything was fine now' and the argument `never became physical.'" 829 N. E. 2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and "again asked [her] what had occurred." Ibid.; App. in No. 05-5705, at 17, 32. Hershel made several attempts to
The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel's counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made "under oath," defense counsel said, "That doesn't give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad." Id., at 19. Nonetheless, the trial court admitted the affidavit as a "present sense impression," id., at 20, and Amy's statements as "excited utterances" that "are expressly permitted in these kinds of cases even if the declarant is not available to testify," id., at 40. The officer thus testified that Amy
The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N.E.2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy's statement was admissible for state-law purposes as an excited utterance, 829 N. E. 2d, at 449; that "a `testimonial' statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings," where "the motivations of the questioner and declarant are the central concerns," id., at 456, 457; and that Amy's oral statement was not "testimonial" under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458-459. We granted certiorari. 546 U.S. 975 (2005).
The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See id., at 51. 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.
Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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. 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.
In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call
The answer to the first question was suggested in Crawford, even if not explicitly held:
A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter.
We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined.
Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),
Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counter-parts
The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U. S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e. g., United States v. Stewart, 433 F.3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U. S. C. § 1001); State v. Reed, 2005 WI 53,
The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than "describ[ing] past events," Lilly v. Virginia, 527 U.S. 116, 137 (1999) (plurality opinion). Sylvia Crawford's interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against a bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e. g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.
Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, "immediately on her coming home, told all the circumstances of the injury" to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl's screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events.
This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, "evolve into testimonial statements," 829 N. E. 2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that,
Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct—as, indeed, the testifying officer expressly acknowledged, App. in No. 05-5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the
It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U. S., at 53, n. 4. While these features certainly strengthened the statements' testimonial aspect—made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events—none was essential to the point. It was formal enough that Amy's interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his "investigat[ion]." App. in No. 05-5705, at 34. What we called the "striking resemblance" of the Crawford statement to civil-law ex parte examinations, 541 U. S., at 52, is shared by Amy's statement here. Both declarants were actively separated from the defendant—officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.
Although we necessarily reject the Indiana Supreme Court's implication that virtually any "initial inquiries" at the crime scene will not be testimonial, see 829 N. E. 2d, at 453, 457, we do not hold the opposite—that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that "[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." Hiibel, 542 U. S., at 186. Such exigencies may often mean that "initial inquiries" produce nontestimonial statements. But in cases like this one, where Amy's statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were "initial inquiries" is immaterial. Cf. Crawford, supra, at 52, n. 3.
Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases—domestic violence—requires greater flexibility in the use of testimonial evidence. This particular
We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e. g., United States v. Scott, 284 F.3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e. g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N.E.2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered." Id., at 545, 830 N. E. 2d, at 174. The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence.
We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon's affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious.
* * *
We affirm the judgment of the Supreme Court of Washington in No. 05-5224. We reverse the judgment of the Supreme Court of Indiana in No. 05-5705, and remand the case to that court for proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring in the judgment in part and dissenting in part.
In Crawford v. Washington, 541 U.S. 36 (2004), we abandoned the general reliability inquiry we had long employed to judge the admissibility of hearsay evidence under the Confrontation Clause, describing that inquiry as "inherently, and therefore permanently, unpredictable." Id., at 68, n. 10 (emphasis in original). Today, a mere two years after the Court decided Crawford, it adopts an equally unpredictable test, under which district courts are charged with divining the "primary purpose" of police interrogations. Ante, at 822. Besides being difficult for courts to apply, this test characterizes as "testimonial," and therefore inadmissible, evidence that bears little resemblance to what we have recognized as the evidence targeted by the Confrontation Clause. Because neither of the cases before the Court today would implicate the Confrontation Clause under an appropriately targeted standard, I concur only in the judgment in Davis v. Washington, No. 05-5224, and dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U. S. Const., Amdt. 6. We have recognized that the operative phrase in the Clause, "witnesses against him," could be interpreted narrowly, to reach only those witnesses who actually testify at trial, or more broadly, to reach many or all of those whose out-of-court statements are offered at trial. Crawford, supra, at 42-43; White v. Illinois, 502 U.S. 346, 359-363 (1992) (Thomas, J., concurring in part and concurring in judgment). Because the narrowest interpretation of the Clause would conflict with both the history giving rise to the adoption of the Clause and this Court's precedent, we have rejected such a reading. See Crawford, supra, at 50-51; White, supra, at 360 (opinion of Thomas, J.).
Rejection of the narrowest view of the Clause does not, however, require the broadest application of the Clause to exclude otherwise admissible hearsay evidence. The history surrounding the right to confrontation supports the conclusion that it was developed to target particular practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary, namely, the "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, supra, at 43, 50; White, supra, at 361-362 (opinion of Thomas, J.); Mattox v. United States, 156 U.S. 237, 242 (1895). "The predominant purpose of the [Marian committal] statute was to institute systematic questioning of the accused and the witnesses." J. Langbein, Prosecuting Crime in the Renaissance 23 (1974) (emphasis added). The statute required an oral examination of the suspect and the accusers, transcription within two days of the examinations, and physical transmission to the judges hearing the case.
In Crawford, we recognized that this history could be squared with the language of the Clause, giving rise to a workable, and more accurate, interpretation of the Clause. "`[W]itnesses,'" we said, are those who "`bear testimony.'" 541 U. S., at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). And "`[t]estimony'" is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U. S., at 51 (quoting Webster, supra). Admittedly, we did not set forth a detailed framework for addressing whether a statement is "testimonial" and thus subject to the Confrontation Clause. But the plain terms of the "testimony" definition we endorsed necessarily require some degree of solemnity before a statement can be deemed "testimonial."
This requirement of solemnity supports my view that the statements regulated by the Confrontation Clause must include "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." White, supra, at 365 (opinion of Thomas, J.). Affidavits, depositions, and prior testimony
Although the Court concedes that the early American cases invoking the right to confrontation or the Confrontation Clause itself all "clearly involve[d] testimony" as defined in Crawford, ante, at 824, it fails to acknowledge that all of the cases it cites fall within the narrower category of formalized testimonial materials I have proposed. See ante, at 824, n. 3.
The Court all but concedes that no case can be cited for its conclusion that the Confrontation Clause also applies to informal police questioning under certain circumstances. Ante, at 824-826. Instead, the sole basis for the Court's conclusion is its apprehension that the Confrontation Clause will "readily be evaded" if it is only applicable to formalized testimonial materials. Ante, at 826. But the Court's proposed solution to the risk of evasion is needlessly overinclusive. Because the Confrontation Clause sought to regulate prosecutorial abuse occurring through use of ex parte statements as evidence against the accused, it also reaches the use of technically informal statements when used to evade the formalized process. Cf. ibid. That is, even if the interrogation itself is not formal, the production of evidence by the prosecution at trial would resemble the abuses targeted by the Confrontation Clause if the prosecution attempted to use out-of-court statements as a means of circumventing the literal right of confrontation, see Coy v. Iowa, 487 U.S. 1012 (1988). In such a case, the Confrontation Clause could fairly be applied to exclude the hearsay statements offered by the prosecution, preventing evasion without simultaneously excluding evidence offered by the prosecution in good faith.
The Court's standard is not only disconnected from history and unnecessary to prevent abuse; it also yields no predictable results to police officers and prosecutors attempting to comply with the law. Cf. Crawford, supra, at 68, n. 10 (criticizing
The Court's repeated invocation of the word "objectiv[e]" to describe its test, see ante, at 822, 827, 828, 830, however, suggests that the Court may not mean to reference purpose at all, but instead to inquire into the function served by the interrogation. Certainly such a test would avoid the pitfalls that have led us repeatedly to reject tests dependent on the subjective intentions of police officers.
Neither the 911 call at issue in Davis nor the police questioning at issue in Hammon is testimonial under the appropriate framework. Neither the call nor the questioning is itself a formalized dialogue.
The Court's determination that the evidence against Hammon must be excluded extends the Confrontation Clause far beyond the abuses it was intended to prevent. When combined with the Court's holding that the evidence against Davis is perfectly admissible, however, the Court's Hammon
Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v. Washington, No. 05-5224, and respectfully dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.
Briefs of amici curiae urging affirmance in both cases were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Michael Scodro, Deputy Solicitor General, and Linda D. Woloshin and Anderson M. Gansner, Assistant Attorneys General, by Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J. Chanos of Nevada, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming; for Cook County, Illinois, by Richard A. Devine and Veronica Calderon Malavia; for the National Association of Counsel for Children by Anthony J. Franze; for the National District Attorneys Association by Mark Ryan Dwyer, David M. Cohn, Susan Axelrod, and Joshua A. Engel; and for the National Network to End Domestic Violence et al. by Antonia B. Ianniello, Michael D. Rips, Jennifer K. Brown, Lynn Hecht Schafran, Joan S. Meier, and Fernando R. Laguarda.
Kym L. Worthy and Timothy A. Baughman filed a brief for Wayne County, Michigan, as amicus curiae urging affirmance in No. 05-5705.
As for the charge that our holding is not a "targeted attempt to reach the abuses forbidden by the [Confrontation] Clause," post, at 842, which the dissent describes as the depositions taken by Marian magistrates, characterized by a high degree of formality, see post, at 835-836: We do not dispute that formality is indeed essential to testimonial utterance. But we no longer have examining Marian magistrates; and we do have, as our 18th-century forebears did not, examining police officers, see L. Friedman, Crime and Punishment in American History 67-68 (1993)—who perform investigative and testimonial functions once performed by examining Marian magistrates, see J. Langbein, The Origins of Adversary Criminal Trial 41 (2003). It imports sufficient formality, in our view, that lies to such officers are criminal offenses. Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U.S. 27 (2001).