SCOTUS clarifies what are testimonial statements

In Davis v. Washington, SCOTUS considered 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. In this case, a 911 operator learned that Davis had hit his girlfriend and was fleeing the scene. The operator also gathered more information about Davis (including his birthday), and learned that Davis had told the girlfriend that his purpose in coming to the house was "to get his stuff," since the girlfriend was moving.

At trial, the State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that the girlfriend exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries. The girlfriend refused to testify. Over Davis's objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him.

In Crawford v. Washington, 541 U. S. 36, 554 (2004), SCOTUS held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." The Court, however, did not define testimonial statements. With Davis, the Court did supply a definition:

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.

The Court found that the statements made to the 911 operator were not testimonial. In so holding, the Court noted that the girlfriend was not describing past events, but was speaking about events as they were actually happening. Any reasonable listener would recognize that she was facing an ongoing emergency. Finally, the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn what had happened in the past.