Davis V Washington and Deuteronomy

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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.

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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….....

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