Dissent in Davis v. Washington
547 U.S. 813 (2006) (2006) · Supreme Court of the United States
Davis clarified Crawford's testimonial framework by establishing the 'primary purpose' test for distinguishing testimonial from nontestimonial statements made during police interrogations. The decision held that statements are nontestimonial when made during an ongoing emergency and become testimonial when the primary purpose shifts to establishing facts for later criminal prosecution.
What was the dissent in Davis v. Washington?
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Case Overview
Facts
Davis involved two consolidated cases. In Davis v. Washington, Michelle McCottry called 911 during an assault by Adrian Davis and identified him as her attacker; by the time police arrived, Davis had fled. In Hammon v. Indiana, police responded to a domestic disturbance and found Amy Hammon on the porch; she told officers she was fine but then filled out a battery affidavit describing the assault by her husband Hershel. In both cases, the victims did not testify at trial, and the prosecution relied on their statements to police.
Majority Holding
The Court held that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose is to enable police assistance to meet an ongoing emergency. Statements are testimonial when the circumstances objectively indicate there is no ongoing emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. McCottry's 911 statements were nontestimonial; Hammon's battery affidavit was testimonial.
Majority Reasoning
Justice Scalia, again writing for the majority, focused on the objective circumstances surrounding each statement. The 911 call in Davis was made while the emergency was ongoing: McCottry was describing events as they happened, seeking help, and the situation was fluid and potentially dangerous. By contrast, in Hammon, the officers found no emergency in progress. Amy Hammon's statements were made after the situation had calmed, in response to structured questioning designed to investigate what had happened. The Court emphasized that the relevant inquiry is objective, asking what a reasonable person would understand the purpose of the interrogation to be. The Court also noted that an encounter that begins as nontestimonial can evolve into a testimonial one as circumstances change.
The Dissenting Opinion
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Key Quotes
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
“They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
“A 911 call... is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance.”
Impact and Legacy
Davis provided the essential companion framework to Crawford, giving courts a workable test for the most common confrontation issue: statements to law enforcement. The primary purpose test has been refined in subsequent cases such as Michigan v. Bryant and Ohio v. Clark, and has been applied to numerous contexts including forensic reports, child abuse investigations, and medical examinations.
Exam Relevance
Davis is essential for any Confrontation Clause exam question involving police encounters. Professors often present fact patterns where a witness makes statements to police and ask students to apply the primary purpose test. A common exam technique is to present a fact pattern where the emergency status shifts mid-conversation, requiring analysis of when statements transition from nontestimonial to testimonial.
Study Tips
- Know the primary purpose test cold: ongoing emergency equals nontestimonial; investigating past events equals testimonial.
- Understand the factual distinctions between the Davis 911 call and the Hammon battery affidavit.
- Remember that Justice Thomas has a narrower view focusing on formality and solemnity.
- Practice applying the test to ambiguous scenarios where the emergency status is unclear or shifting.
Read the Full Case Analysis
View the complete brief for Davis v. Washington including full reasoning, doctrine, and study resources.
More Evidence Dissents
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
541 U.S. 36 (2004) (2004)
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Bruton v. United States
391 U.S. 123 (1968) (1968)
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Tome v. United States
513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.
Old Chief v. United States
519 U.S. 172 (1997) (1997)
Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented, arguing that the prosecution has the right to present its case with the richness and power of evidence that allows jurors to make the case their own. She contended the majority's approach improperly interfered with prosecutorial discretion and would create a slippery slope of defendant-forced stipulations.