he Sixth Amendment to the U.S. Constitution provides that an accused person in a criminal proceeding has the right to confront all witnesses against him or her at trial. The Confrontation Clause is based on a long legal history finding that testimony is more reliable when it is presented in open court and it is subjected to the adversarial process. In general, "testimony" includes ­declarations made to establish facts, typically made to a government agent, and the particular concern of the Confron­tation Clause is the use of out-of-court testimony against the accused.

Hearsay evidence is one such type of evidence raising Sixth Amendment concerns.

Admissibility of hearsay

Hearsay is a statement made outside of the courtroom that is offered to prove the facts asserted in that statement. Hearsay is excluded at trial under the rationale that it is unreliable. There are several exceptions to this exclusionary rule for certain types of out-of-court statements that are traditionally deemed to be trustworthy, including "excited utterances," or statements made about a startling or stressful event while still experiencing the stress of the event. Recently, in Crawford v. Washington (541 U.S. 36, 2004), the Supreme Court determined that admission of "testimonial" hearsay is a violation of the Confrontation Clause, specifying prior testimony at a legal proceeding and police interrogations. Courts in the past have considered some hearsay "nontestimonial," and the Supreme Court did not determine what additional forms of hearsay would constitute testimony.

This term, the Supreme Court will consider two cases in which the question presented for review is whether particular types of hearsay statements, admissible as excited utterances, are ­testimonial and therefore excludable under the Confrontation Clause. In Davis v. Washington (docket number 05-5224, ruling below at 111 P.3d 844), the Supreme Court must determine if an assault victim's statements to a 911 operator naming her attacker are testimonial, and in Hammon v. Indiana (docket number 05-5705, ruling below at 829 N.E.2d 444) it will determine whether statements made to a police officer at the scene of an assault are ­testimonial.

Psychological issues raised

These two cases raise similar behavioral questions that can be informed by psychology. First, there are several issues regarding the reliability and the probative value of hearsay. There is ­little psychological research on the ­circumstances, if any, under which hearsay statements are reliable. Empirical research on the excited utterances exception to the hearsay rule is required to determine when a declarant is still under the stress of an event and when an excited utterance is reliable. The psychology of perception, memory, and deception could inform these issues.

Additionally, assumptions regarding the probative value of hearsay testimony are grounded in beliefs about jurors' abilities to appropriately weigh such ­evidence in their decision-making. Much of the psychological and legal research on hearsay has focused on jurors and indicates that they evaluate hearsay appropriately in a limited range of contexts, but more research is required on this topic (see, for example William Thompson and Maithilee Pathak's 1999 article in Psychology, Public Policy & Law, Vol. 5, No. 2, pages 456–472).

Second, these cases make dis­tinctions between testimonial and nontestimonial statements based on the perceived motivations of the persons involved: whether the declarant was trying to provide information to be used later at trial and whether the person to whom the statement was made was attempting to elicit information for use at trial. This raises questions regarding the circumstances under which these people may be differentially motivated and how a judge may uncover these motivations. Once the judge makes this distinction, the jury must evaluate the relative probative value of statements deemed testimonial versus nontestimonial under this scheme, which raises questions about how jurors will make these assessments and weigh this evidence in their decision-making.

Finally, the situations in which this potential testimony was provided are important to the admission decision. The appellate courts considered whether the declarants reasonably believed their statements would be used later at trial. The implications are that people have commonsense beliefs about the potential use and admissibility of a variety of ­interactions with a variety of law enforcement workers and that legal decision-makers have an accurate understanding of those beliefs. Research on ­commonsense beliefs about various interactions of this type, including whether people making emergency 911 calls think about the use of these conversations in later prosecutions, would inform the assessment of reasonableness.

There is little or no empirical research informing these issues for legal decision-makers, and these important issues could be investigated by psychologists who carefully tailor their research questions and design to address the decisions faced by the courts.