The Supreme Court both tricked and treated Indiana today. The trick: it denied cert. in Smylie. But for all the docket action--and inaction by the Indiana AG--that was probably a foregone conclusion. Jaramillo is set for conference November 10th. (Earlier posts about Jaramillo here, here, here, and here, in reverse chronological order.)
The treat: it granted cert. in Hammon, an Indiana Supreme Court Crawford decision. Hammon's going to be argued together with Davis v. Washington (dissenting opinion here.) The heart of the majority Davis opinion from the Washington Supreme Court is the following:
Under the facts of the present case, McCottry called 911 because of an immediate danger. There is no evidence McCottry sought to "bear witness" in contemplation of legal proceedings. Nonetheless, certain statements in the call could be deemed to be testimonial to the extent they were notconcerned with seeking assistance and protection from peril. However, the information essential to the prosecution of this case was McCottry's initial identification of Davis as her assailant.
. . . .
In this case, the officers arrived four minutes after McCottry's 911 call and observed and documented her fresh injuries with photographs that were introduced into evidence. The portion of McCottry's 911 call that
identified Davis as her assailant was nontestimonial and properly admitted.
This is what Justice Boehm wrote in Hammon that lines up with Davis:
My guess is that there's going to be a Scalia opinion saying that statements to the police, including 911 calls, are testimonial, period. Crawford was a 7-0 opinion, with Chief Justice Rehnquist writing an opinion concurring in the judgment joined by Justice O'Connor. Having jettisoned Ohio v. Roberts in Crawford, I don't think the Crawford majority--everyone that we know about--is going to go for the attempts by state courts to divine the subjective intents of police officers and complaining, non-appearing witnesses. I think we'll have another actual rule when Davis and Hammon are done.
Despite the absence of findings, we think the undisputed facts are sufficient to determine that the initial exchange between Mooney and Amy fell into the category of preliminary investigation in which the officer was essentially attempting to determine whether anything requiring police action had occurred and, if so, what. Officer Mooney, responding to a reported emergency, was principally in the process of accomplishing the preliminary tasks of securing and assessing the scene. Amy’s motivation was to convey basic facts and there is no suggestion that Amy wanted her initial responses to be preserved or otherwise used against her husband at trial. Accordingly, her oral statement was not testimonial.
The Davis docket is here; the Hammon docket is here.