In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court decided when an out-of-court statement to police triggers the Sixth Amendment’s Confrontation Clause. The Court announced the “primary purpose test”: statements made to help police respond to an ongoing emergency are not testimonial and can come into evidence without cross-examination, while statements whose main purpose is to document what already happened for a future prosecution are testimonial and cannot be used unless the defendant has a chance to confront the witness.1Justia. Davis v. Washington, 547 U.S. 813 (2006)
Why the Court Needed a New Test
Two years earlier, Crawford v. Washington, 541 U.S. 36 (2004), had overhauled Confrontation Clause law. It replaced a flexible reliability inquiry with a categorical rule: if a statement is “testimonial,” only actual cross-examination will satisfy the Constitution.2Justia. Crawford v. Washington, 541 U.S. 36 (2004) But Crawford declined to define “testimonial,” leaving that “for another day.” Lower courts split, especially on 911 calls and on-scene police interviews in domestic violence cases. Davis is the case that filled the gap.
The Two Consolidated Cases
The Court paired two domestic violence cases with deliberately different facts. One was a frantic 911 call during an active assault. The other was a quiet police interview after the violence had ended. The contrast let the Court mark both ends of the line at once.
Michelle McCottry’s 911 Call
On February 1, 2001, Michelle McCottry dialed 911 and hung up before speaking. When the operator called back, McCottry reported that her former boyfriend, Adrian Davis, was assaulting her. She was distraught, described the attack as it happened, and named Davis when the operator pressed for details.3U.S. Department of Justice. Davis v. Washington – Amicus (Merits) McCottry could not be located for trial. The prosecution introduced the 911 recording over Davis’s Confrontation Clause objection.1Justia. Davis v. Washington, 547 U.S. 813 (2006)
Amy Hammon’s On-Scene Statement
On February 26, 2003, police responded to a domestic disturbance at Amy and Hershel Hammon’s home. By the time officers arrived, the situation was quiet. Amy initially said nothing was wrong, though she appeared frightened. An officer separated the couple, and Amy then described Hershel throwing her into broken glass from a shattered heating unit and punching her in the chest. She completed a written battery affidavit.4Justia. Hershel Hammon v. State of Indiana Amy did not appear at trial. The prosecution introduced the officer’s testimony about what she said and authenticated the affidavit, both over a Confrontation Clause objection.1Justia. Davis v. Washington, 547 U.S. 813 (2006)
The Primary Purpose Test
Justice Scalia, writing for the Court, framed the question as one about the main reason the person was speaking to law enforcement. A statement is not testimonial when the circumstances objectively show that its main purpose was to help police handle an ongoing emergency. A statement is testimonial when there is no ongoing emergency and its main purpose is to establish what happened for a possible prosecution.1Justia. Davis v. Washington, 547 U.S. 813 (2006)
The test is objective. It does not turn on what the caller or the officer subjectively meant to accomplish. Courts look at the situation as a reasonable person would have understood it at the time the statements were made.
Two Fact Patterns, Two Different Outcomes
McCottry’s 911 statements were not testimonial. She was calling while being attacked, described events in the present tense, and was asking for help to stop an immediate threat. The operator’s questions were aimed at understanding the situation and dispatching officers. The Confrontation Clause did not bar the recording even though McCottry never testified.1Justia. Davis v. Washington, 547 U.S. 813 (2006)
Amy Hammon’s statements were testimonial. By the time officers arrived, the confrontation was over. There was no immediate danger. An officer separated the couple, interviewed Amy at length, and had her fill out a formal affidavit. That looked like investigative evidence-gathering, not emergency response. Admitting the statements without a chance to cross-examine Amy violated the Confrontation Clause.5Library of Congress. Davis v. Washington, 547 U.S. 813 (2006)
Justice Thomas’s Partial Dissent
The Court was unanimous on McCottry’s 911 call. On Amy Hammon’s statements, the vote was 8-1. Justice Thomas would have admitted both.1Justia. Davis v. Washington, 547 U.S. 813 (2006) Thomas called the primary purpose test “equally unpredictable” as the reliability inquiry Crawford had discarded. In his view, the Confrontation Clause reaches only formal testimonial materials such as affidavits, depositions, prior testimony, and confessions produced through solemn, structured processes. Neither a 911 call nor an on-scene statement to a responding officer carried that formality, so he would have found both non-testimonial. His narrower position has resurfaced in later opinions but remains a minority view on the Court.
Hearsay Exceptions Do Not Solve the Problem
A common source of confusion is the relationship between hearsay rules and the Confrontation Clause. They overlap but are not the same. Hearsay rules are evidentiary; the Confrontation Clause is constitutional.
Before Crawford, courts often treated the two as interchangeable. If a statement fit a hearsay exception like “excited utterance,” it was usually treated as reliable enough for the Confrontation Clause too. Crawford broke that link, and Davis confirmed it. McCottry’s 911 call was admitted under Washington’s excited utterance exception, but the Supreme Court analyzed it separately under the Confrontation Clause.3U.S. Department of Justice. Davis v. Washington – Amicus (Merits) If the call had been testimonial, no hearsay exception would have saved it. Meeting a hearsay rule is necessary but not sufficient.
How Later Cases Filled In the Line
Davis drew a clean line using two neat scenarios. Real cases are rarely that tidy, and two later Supreme Court decisions shaped how the primary purpose test works in messier situations.
Michigan v. Bryant (2011)
In Michigan v. Bryant, 562 U.S. 344 (2011), police found a shooting victim in a gas station parking lot who identified Richard Bryant as having shot him at Bryant’s house. The victim later died. The Court held his statements were not testimonial, expanding the concept of “ongoing emergency” beyond the immediate victim. Courts must consider the threat to responding officers and the public, not just to the person who spoke. The type of weapon matters too: a gun creates a broader public threat than a fistfight. Because officers still had to locate an armed suspect, the identification came in.6Justia. Michigan v. Bryant, 562 U.S. 344 (2011)
Ohio v. Clark (2015)
Ohio v. Clark, 576 U.S. 237 (2015), asked whether the primary purpose test applies when the questioner is not a police officer. A three-year-old arrived at preschool with visible injuries and told teachers that his mother’s boyfriend, Darius Clark, had hurt him. The Court held those statements were not testimonial. The teachers’ immediate concern was protecting the child, not gathering evidence. The Court declined to categorically exclude statements to private individuals from the Confrontation Clause, but held they are far less likely to be testimonial than statements to police, and it noted that very young children will rarely produce testimonial statements because they generally do not understand that their words might substitute for trial testimony.
Forfeiture by Wrongdoing
Davis itself pointed to an exception that matters in domestic violence cases: forfeiture by wrongdoing. A defendant who deliberately makes a witness unavailable through intimidation, threats, or violence aimed at silencing them forfeits the right to raise a Confrontation Clause objection to that witness’s out-of-court statements.
In Giles v. California, 554 U.S. 353 (2008), the Court clarified that the defendant must have acted with the specific intent to keep the witness from testifying. Committing a crime that happens to make a witness unavailable is not enough. If a defendant killed a victim during a dispute but was not trying to silence a potential witness, forfeiture does not automatically apply.7Justia. Giles v. California, 554 U.S. 353 (2008) The Giles Court did note that a history of prior abuse or threats aimed at discouraging a victim from seeking outside help is relevant to proving intent, and prosecutors in domestic violence cases often argue exactly that.
What Davis Changed in Practice
Davis reshaped how domestic violence cases get built. Victims often recant, refuse to cooperate, or cannot be found by trial. Before Davis, prosecutors regularly relied on hearsay exceptions to get victim statements before a jury. After Davis, formal after-the-fact interviews and written affidavits cannot come in unless the victim testifies.
The response has been evidence-based prosecution: cases built to stand without victim testimony. Prosecutors lean on 911 recordings, scene photographs, body-worn camera footage, medical records, and digital evidence such as text messages and voicemails. They also pay close attention to when and how each statement was made. A present-tense account to the first officer through the door reads very differently under the primary purpose test than a detailed narrative given twenty minutes later in a quiet room. Officer training now emphasizes documenting the emergency context of early statements, because those details determine whether the statement survives a Confrontation Clause challenge.