In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court ruled unanimously that a 911 call made during an active domestic assault was not “testimonial” evidence, so admitting the recording at trial without the caller’s live testimony did not violate the Sixth Amendment’s Confrontation Clause. Writing for the Court, Justice Scalia announced the “primary purpose test”: statements to police are non-testimonial when the objective circumstances show the exchange is aimed at resolving an ongoing emergency, and testimonial when the aim is to establish past facts for a future prosecution. The Court decided the case alongside Hammon v. Indiana, and the contrast between the two is what gives the rule its shape.
What Happened in the Case
On February 1, 2001, a 911 operator in Kent, Washington, received a call that disconnected before anyone spoke. The operator called back and reached Michelle McCottry, who was breathing heavily. Asked what was happening, McCottry said, “He’s here jumpin’ on me again.” She told the operator the attacker was “usin’ his fists,” identified him as her former boyfriend Adrian Davis, and near the end of the call reported that Davis was running away.
Prosecutors charged Davis with felony violation of a domestic no-contact order. McCottry did not appear at trial. Over Davis’s objection, the trial court admitted the 911 recording as an excited utterance. A jury convicted him, and the court imposed fifteen months of confinement.1Legal Information Institute. Davis v. Washington After the Washington state appellate courts affirmed, Davis took the case to the Supreme Court, arguing that admitting McCottry’s statements without any chance to cross-examine her violated the Confrontation Clause.
The Hammon Companion Case
The Court paired Davis with a second case that raised the same constitutional question on very different facts. Police in Indiana responded to a reported disturbance at the home of Amy and Hershel Hammon. When officers arrived, Amy told them nothing was wrong and let them inside. One officer kept Hershel in the kitchen while another took Amy to a separate room, questioned her about the alleged assault, and had her fill out and sign a battery affidavit.2Supreme Court of the United States. Davis v. Washington; Hammon v. Indiana
Amy did not testify at Hershel’s trial. The prosecution introduced her affidavit and the officer’s account of what she had told him. The Court held Amy’s statements were testimonial and that admitting them violated the Confrontation Clause, reversing Hershel Hammon’s conviction. The immediate danger, if any, had passed before Amy spoke to the officer. She was safe, separated from her husband, and describing events that had already ended.2Supreme Court of the United States. Davis v. Washington; Hammon v. Indiana
The Primary Purpose Test
Justice Scalia framed the rule this way. Statements made in the course of police questioning are not testimonial when the circumstances objectively indicate that the primary purpose of the exchange is to enable police to meet an ongoing emergency. Statements are testimonial when there is no such emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.3Supreme Court of the United States. Davis v. Washington
McCottry fell on the non-testimonial side. She was describing events as they unfolded, seeking help against a present physical threat. Amy Hammon fell on the testimonial side. She was giving an account of a past event to an investigating officer in a calm setting, and then memorializing it in a signed affidavit. Two cases, one test, and a working rule for lower courts.4Justia U.S. Supreme Court Center. Davis v. Washington
How Courts Apply the Test
The inquiry is objective. Judges look at the circumstances of the statement rather than trying to read the speaker’s mind. Several concrete indicators do most of the work.
Timing and tense matter. A caller describing something happening right now is more likely seeking help than building a case. McCottry spoke in the present tense: “He’s here jumpin’ on me again.” The presence of an immediate physical threat also weighs heavily; the Court called her statements “plainly a call for help against a bona fide physical threat.”5Constitution Annotated. Ongoing Emergencies and Confrontation Clause Formality matters too. Frantic answers into a phone in an unsafe environment sit at one end of the spectrum; a signed statement given in a controlled setting sits at the other.
The Court also recognized that a single conversation can change character partway through. A 911 call that begins as a plea for help can shift toward testimony if the operator keeps asking questions after the threat has clearly ended. That means trial judges sometimes have to sort admissible portions of a call from inadmissible ones rather than treating the recording as all or nothing.
How Davis Fit With Crawford
Two years earlier, in Crawford v. Washington, the Court had ruled that testimonial statements from an absent witness are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine.6Justia U.S. Supreme Court Center. Crawford v. Washington Crawford deliberately left “testimonial” undefined. The statement at issue there was a recorded station-house interrogation conducted hours after a stabbing, and the Court had no trouble labeling it testimonial. The harder question was where the boundary fell for less formal encounters, and that is the gap Davis filled.
Compared with the Crawford interrogation, McCottry’s call differed on every axis that mattered. She spoke while the events were happening, not hours later. She faced an active threat, not a closed investigation. The operator’s questions were aimed at getting help to her, not reconstructing a past crime. And the setting was chaotic rather than a controlled interview room. Those distinctions, taken together, put her statements on the non-testimonial side of the line the Court drew.4Justia U.S. Supreme Court Center. Davis v. Washington
Justice Thomas’s Partial Dissent
The judgment was unanimous in Davis but split in Hammon. Justice Thomas agreed with the outcome for McCottry’s call and disagreed with the majority’s treatment of Amy Hammon’s statements. His concern was with the test itself.7Supreme Court of the United States. Davis v. Washington
Thomas argued that the primary purpose inquiry was too unpredictable, forcing trial judges to guess at the purpose behind every police interaction. In his view, the Confrontation Clause historically targeted a narrower class of evidence: formalized documents such as affidavits, depositions, prior testimony, and confessions produced through structured proceedings. Informal statements, in his reading, did not trigger the right at all. Under that approach, McCottry’s call would be non-testimonial (informal and spontaneous), Amy Hammon’s oral statements to the officer would also be non-testimonial, and only the signed battery affidavit would clearly count as testimony.7Supreme Court of the United States. Davis v. Washington
Why the Decision Matters
Before Davis, lower courts were guessing at which out-of-court statements counted as testimonial under Crawford. The primary purpose test gave them a workable standard grounded in objective circumstances. For prosecutors, the decision confirmed that 911 recordings and similar emergency statements remain admissible even when the caller later refuses to cooperate. For defendants, the companion ruling in Hammon confirmed that the Confrontation Clause still applies with force when police conduct structured interviews and collect written statements from witnesses who never appear at trial.
The practical stakes are highest in domestic violence prosecutions, where victims frequently recant or decline to testify. Davis lets prosecutors use genuine emergency calls as evidence; Hammon blocks them from building a case on police-gathered accounts the defendant never had a chance to challenge. That balance continues to define Confrontation Clause litigation in trial courts.5Constitution Annotated. Ongoing Emergencies and Confrontation Clause