Davis V Washington and Deuteronomy

Davis v Washington The so-called "Confrontation Clause" of the Sixth Amendment states that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The plaintiff in Davis v. Washington claimed that the admission during trial of a recording of his ex-girlfriend's 911 call after he had beat her up qualified as a "testimonial" statement, and thus the girlfriend's refusal to take the witness stand and be cross-examined qualified as a violation of his Sixth Amendment right. The U.S.

Supreme Court found, more or less unanimously, that the 911 call did not count as testimony and therefore Davis' inability to confront the ex-girlfriend during trial was not a violation of his Sixth Amendment rights. What if the 911 call was instead a text message and photograph taken with a similar phone, as in the hypothetical outlined above? This becomes slightly more difficult to adjudicate.

There was, in fact, never any doubt that Davis's ex-girlfriend had made the 911 call -- the police officers arriving at the scene four minutes after the call terminated found the ex-girlfriend with fresh injuries, and together with the recording the officers' testimony could establish a timeline in which Davis's defense, that there could be reasonable doubt as to who the perpetrator of the injury was.

It is within the realm of possibility that the ex-girlfriend could have caused the injuries to herself in the presence of Davis, then waited for the police to show up and assume the injuries had been caused by the now-absent Davis -- this is an element of doubt, and it is up to the jury to determine if that doubt would be reasonable. But in the case of text messages or cell-phone photographs, however, this possibility carries greater weight.

The court is confronted with a photograph of a man -- but without proof that the photograph was taken by his ex-girlfriend against whom he has a no-contact order, the photograph is not intrinsically proof that the man was in violation of a no-contact order.

After all, Antonin Scalia himself could be sitting in the car snapping the photo and texting it to a cop with the message "HELP MY EX-HUSBAND IS TRYING TO BEAT ME UP," and nothing in the photo or the text message would intrinisically prove the identity of the sender -- indeed if the accused testifies that he saw his ex-girlfriend's smartphone being held by a chubby Italian-American in a long black robe, Scalia could possibly be compelled to testify if he lacks a credible alibi.

Thus Scalia's own "testimonial" standard in Davis -- where to be testimonial there must be no "ongoing emergency" -- is vague here. Likewise, the somewhat dubious circumstances described -- the ex-girlfriend cannot make a 911 call but can take a photograph and text it with messages to a law enforcement friend? -- admit automatically of doubt. If the law enforcement friend is actually a new boyfriend, this sounds like it could easily be a scam perpetrated by the ex-girlfriend and a new lover to take revenge upon her old lover.

Admissibility according to the standards outlined in Davis v. Washington might therefore be considered less likely, if there is no way to establish beyond all doubt the identity of the photographer / texter. After all, as Worrall notes in Chapter 6 of Criminal Procedure, the Supreme Court itself has established that, for law enforcement, there are differing degrees of certainty regarding Fourth Amendment, and that "reasonable suspicion" is "defined as a lesser degree of certainty than probably cause but a greater degree of certainty than a hunch or unsupported belief" (Worrall 183).

We might similarly distinguish between degrees of certainty between the case in Davis and this one: an audio recording of a voice identified by all parties, and the testimony of two on-duty police officers, accords a greater degree of unimpeachability here than a text message and photograph sent to a "law enforcement friend." This dubiety regarding the evidence in this case is strongly bolstered by the scriptural injunction in Deuteronomy 19:15, which holds that one witness alone is insufficient to convict, and two or three witnesses are required.

One witness alone is what we today often refer to as a "he said, she said" situation. But are there not two witnesses in this hypothetical case, the ex-girlfriend and the law enforcement friend? We might therefore use -- as a commentary on Deut.