Ongoing Emergencies and Confrontation Clause

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Statements made to police during interrogation are nontestimonial—and therefore outside the scope of the Confrontation Clause—when made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” 1 In contrast, “[t]hey 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.” 2 One relevant factor in determining whether a statement occurred during an ongoing emergency is whether the statements are made “about events as they [are] actually happening,” and necessary to resolve a “present emergency, rather than simply to learn . . . what had happened in the past.” 3 In Davis v. Washington,4 the Court concluded that out of court statements made by the victim of domestic violence to a 911 operator were nontestimonial as they were “plainly a call for help against [a] bona fide physical threat” by someone “facing an ongoing emergency.” 5 The statements’ lack of formality also influenced the Court in Davis, as the Court emphasized that the statements were “frantic” and “provided over the phone,” in an unsafe, turbulent environment.6 However, based on similar considerations, the Davis Court concluded that statements made to responding officers during a separate domestic violence incident were testimonial.7 The difference, according to the Court, was that the testimonial statements were made with “no emergency in progress” and “no immediate threat” to the defendant, and were instead “part of an investigation into possibly criminal past conduct.” 8

In Michigan v. Bryant,9 the Court held that the ongoing emergency exception encompassed the statements of a mortally wounded man to police, identifying the eventual defendant as the person who shot him.10 According to the Court, to determine whether an interrogation fits within the ongoing emergency exception, a court should objectively evaluate the circumstances “and the statements and actions of the parties.” 11 In Bryant, factors considered by the Court in making this assessment included the dangerousness of the weapon involved (a gun), and the possibility of additional shootings—both of which weighed in favor of there being an ongoing emergency.12 In addition, the Court emphasized the “informality of the situation and the interrogation,” noting the “fluid and somewhat confused” nature of the questioning, which indicated that the “interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency.” 13

In Ohio v. Clark,14 the Court examined the contours of the ongoing emergency exception outside of the context of police interrogations.15 Clark involved statements made by a child abuse victim to teachers, in which he identified the defendant as his abuser.16 The Court held that the admission of these statements without opportunity for cross-examination did not violate the Sixth Amendment as “neither the child nor his teachers had the primary purpose of assisting in [the defendant’s] prosecution.” 17 According to the Court, the “statements occurred in the context of an ongoing emergency involving suspected child abuse.” 18 In addition, the Court noted that the statements were made by a child, and that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” 19 Further, the Court seemingly gave weight to the fact that the statements were made to teachers as opposed to police, although the Court declined to “adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment.” 20

1: Davis v. Washington, 547 U.S. 813, 822 (2006).
2: Id. (emphasis added).
3: Id. at 827 (emphasis omitted).
4: 547 U.S. 813 (2006).
5: Id. at 827; see id. at 822 (holding that “[s]tatements 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 testimoninal 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” ).
6: Id.
7: Id. at 829–30.
8: Id. at 829.
9: Michigan v. Bryant, 562 U.S. 344 (2011).
10: Id. at 349–50.
11: Id. at 359.
12: Id. at 372–77.
13: Id. at 377.
14: 576 U.S. 237 (2015).
15: Id. at 240.
16: Id. at 240–42.
17: Id. at 240.
18: Id. at 246.
19: Id. at 247–48.
20: Id. at 249.