Justices Signal Court Testimony’s Primacy

WASHINGTON —  The Supreme Court justices, with the exception of Ruth Bader Ginsburg, sounded Monday as if they were likely to bar prosecutors from using in court the words of alleged crime victims who speak to authorities but later refuse to testify.

Such a ruling would greatly strengthen the right of defendants to “be confronted with the witnesses against” them, in the Constitution’s words. However, it would be a major setback for victims of domestic violence and sexual assault, who often are afraid to testify against their abusers.

Two years ago, the high court ruled that a crime witness’ sworn statement at a police station could not be used at trial against the defendant if she did not appear in court to be cross-examined.

On Monday, the court debated whether to extend that ban to include emergency calls to a 911 operator or statements from an alleged victim at a crime scene.

The justices heard the appeals of two men whose convictions were based not on the court testimony of their accusers, but on their words as recorded by a 911 operator or a police officer at the scene.

“The practical reality is many women are scared to death” to testify against a spouse or partner who abuses them, said Ginsburg, now the only woman on the high court. In other instances, “they are so desperate financially” that they decide against testifying, she said.

She questioned whether the Constitution should be interpreted to bar prosecutors from using their calls to a 911 line. “This is not just a call. It is a cry for help,” Ginsburg said.

But Justice Antonin Scalia countered that the use of such statements in the place of a witness’ testimony in court violated the principle set in the Constitution.

The 6th Amendment says: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Scalia said the court should enforce that right.

“I think the Founders believed in a system where the accused had a right to confront his accusers in court,” Scalia said.

“I can’t see why it makes any sense” to allow a taped 911 call in place of a witness’ actual testimony, he said. Under that approach, a defendant loses the right to contest the statements of his accuser, Scalia said.

In their questions and comments, most justices sounded as if they leaned toward Scalia’s view.

Though several said they were concerned about excluding reliable evidence from a trial, they said they did not see how they could make a special exception for emergency calls where domestic violence was at issue.

In the first case heard Monday, Adrian Davis was convicted of violating a restraining order based on an ex-girlfriend’s call to a 911 operator near Seattle. She failed to appear at the trial, but the prosecutor played the 911 tape for the jury.

In the second, Hershel Hammon was convicted of the domestic battery of his wife, Amy, based on her initial statement to a police officer who came to their house in Peru, Ind. She too did not testify.

Davis’ and Hammon’s attorneys argued that “accusatory” statements to authorities should be barred from a defendant’s trial unless the witness testifies. Prosecutors called them “emergency” statements and said they should be allowed, even if the witness fails to testify.

Regardless of what the high court decides, police officers will remain free to testify about what they see at a crime scene. For example, if police officers observe an apparent crime victim who has been bruised or bloodied, they can testify as a witness to what they have seen.

What is in doubt concerns the words used by the alleged victim. If, for example, a woman says, “He hit me!” prosecutors say that statement can be used in court because it is an emergency report at the crime scene. Defense lawyers say those words amount to testimony and should be excluded if the alleged victim fails to testify.

Lawyers on both sides agreed that where evidence showed a criminal defendant had intimidated a witness into not testifying, the defendant forfeited his right to confront his accusers in court. But prosecutors told the justices that those cases were hard to prove.

The justices will vote privately later this week on the cases of Davis vs. Washington and Hammon vs. Indiana, and will issue a ruling by the end of June.