« Ind. Decisions - 7th Circuit upholds Judge Barker in trial level judical bias decision | Main | Ind. Decisions - More on "Judge cancels Lawrence water utility contract" »

Wednesday, November 02, 2005

Ind. Decisions - Indiana hearsay/confrontation clause case to be heard by U.S. Supreme Court

An editorial in the Las Vegas Review-Journal today reports:

[The Sixth Amendment] says the accused "shall enjoy the right ... to be confronted with the witnesses against him."

But what does that mean, in this day and age? Can domestic violence defendants (and others) be convicted based on tapes of 911 calls, or on written reports taken down by responding police officers, even if the sole witness to the alleged crime, often the spouse or domestic partner, refuses to testify or is simply not brought forward at trial?

The Supreme Court ruled on this matter last year, in Crawford v. Washington, barring such "hearsay" testimony unless the defense has had an opportunity to question the accusing witness, and unless that witness is unavailable to appear in person at the time of trial.

But lower courts have split on what that decision means. Some allowed the 911 calls or the written police reports to be admitted into evidence without personal testimony by the accuser; others did not.

On Oct. 31, the high court agreed to hear two cases that should clarify these questions. In Hammon v. Indiana, an Indiana man was convicted based on a written police report taken at the scene after he allegedly punched his wife and threw her to the ground, even though his wife, who had been subpoenaed to testify, didn't show up.

In Davis v. Washington, Adrian Davis was convicted of beating up Michelle McCottry based on her tape-recorded 911 call. Ms. McCottry was not called to testify.

In Hammon v. State (6/16/05 IndSCt) Justice Boehm wrote:
The Sixth Amendment as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), prohibits the introduction in a criminal trial of testimonial statements where the defendant had no opportunity to cross examine the person who made the statements. We hold that statements to investigating officers in response to general initial inquiries are nontestimonial but statements made for purposes of preserving the accounts of potential witnesses are testimonial. More generally, we conclude that testimonial statements are those where a principal motive of either the person making the statement or the person or organization receiving it is to preserve it for future use in legal proceedings.
Bloomington attorney Michael Ausbrook of INCourts had an entry Monday on this grant, where he writes that he doesn't think the Supreme Court "is going to go for the attempts by state courts to divine the subjective intents of police officers and complaining, non-appearing witnesses."

Posted by Marcia Oddi on November 2, 2005 07:20 PM
Posted to Ind. Sup.Ct. Decisions