The Davis Narrowing of Crawford: Is the Primary Purpose Test of Davis Jurisprudentially Sound, 'Workable', and 'Predictable'?

Abstract

The opinions by the United States Supreme Court in Crawford (2004) and Davis (2006) each purport once again to having 'found' the true meaning of the confrontation clause. The road they pave is rocky, difficult to navigate, lacks a clear jurisprudential foundation, and creates very bizarre and potentially hazardous results. The current state of confrontation clause analysis is unclear. Where confrontation clause analysis will move next, if anywhere, is really anyone's guess. The purpose of this article is to illuminate the path of confrontation clause analysis to the extent possible. Following Crawford, many different visions of the path upon which confrontation clause analysis had embarked were suggested. Davis addresses one such path, i.e., application of the confrontation clause to excited utterances uttered by declarants who are unavailable and thus not subject to cross-examination made both during the course of a 911 call as well as made at the scene to a police officer responding to a domestic disturbance. The result of Davis is a 'primary purpose' test. If circumstances objectively indicate that the 'primary purpose' to which the statement was put when received by the police officer, other law enforcement personnel, or judicial officer was prosecutorial, the statement is called 'testimonial' and precluded. Conversely, if the 'primary purpose' upon receipt is to respond to an 'emergency' or otherwise, the statement is 'nontestimonial' and not affected by the confrontation clause. Statements, excited utterances and otherwise, not made to a police officer, other law enforcement personnel, or judicial officer are always 'nontestimonial' and as such the confrontation clause does not bar admissibility.

Keywords: Davis, Crawford

JEL Classification: K10, K14, K19