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Overcriminalization Redux -- Meow

Davis: The Rule Of Fear Trumps Rule Of Law

Davis v. Washington, decided yesterday by the United States Supreme Court, is ostensibly about the admissibility of 911 calls in criminal trials. In fact, the case represents a subtle retreat from the presumption of innocence.

Davis is one of two Confrontation Clause cases decided by the Court yesterday. (In the companion case, the Court held that statements to police officers investigating a crime are testimonial in character and therefore must require that the witness be present to testify if they are offered as evidence in any form. Hammon v. Indiana.) Both arise in the wake of the Crawford decision, which held that testimonial out-of-court statements could not be admitted unless the declarant were present to be cross examined.

In Davis the Court held that a 911 call is not testimonial in character, and was therefore admissible even if the declarant were not at trial. There was no claim in Davis that the declarant was rendered unavailable for trial by the misconduct of the defendant. Authorities were simply unable to locate the alleged victim.

Under the waiver by misconduct rule enshrined in the Federal Rules of Evidence, a defendant can waive his right to confront a witness and objections as to hearsay if he procures the absence of the witness. That rule makes sense, but requires a judicial finding of misconduct by the defendant.

Davis requires no such finding. The case arose in the context of domestic violence. Amicus briefs were somehow permitted on this simply matter of constitutional interpretation and evidence. One of the amicus briefs told the court that "domestic violence victims were often afraid to appear in court." Justice Scalia, the author of Davis, swallowed this hook without blinking, noting that those who seek to "undermine the judicial process by procuring or coercing silence" would forfeith the protection of the Confrontation Clause.

That was already the law before Davis. What Scalia has done was substituted speculation about why the victim was not available for proof that a defendant caused the victim to be unavailable. He did so at the expense of the presumption of innocence and at the behest of a public interest group claiming special rules of evidence for victims of some crimes.

Davis and Hammon make little sense. Both 911 calls and statements to police have for quite some time been admissible in the presence of a judicial finding of misconduct by a defendant. Now the rules have changed. We can use 911 calls absent any judicial finding because, apparently, we presume that an absent witness is a frightened witness.

Another example of fear supplanting the Bill of Rights.