In Davis Scalia elevates the res gestae hearsay exception above the constitutional right to confront one's accusers. The basic assumption of the res gestae is that a statement is so much a part of the happening that it is reliable. It is the reason that "Somebody yelled, 'This is a bank robbery'" is allowed into testimony without putting the co-defendant who allegedly said it on the stand. In situations like that it is a common sense rule.
However, if it is expanded much further it becomes a rule which can be scammed by someone who wants to punish the accused. Domestic 911 calls are a potent breeding ground for such scamming. I don't know all the facts in the Davis case but look at the 911 call:
"911 Operator: Hello.Contrast that with a statement such as:
"911 Operator: What's going on?
"Complainant: He's here jumpin' on me again.
"911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment?
"Complainant: I'm in a house.
"911 Operator: Are there any weapons?
"Complainant: No. He's usin' his fists.
"911 Operator: Okay. Has he been drinking?
"911 Operator: Okay, sweetie. I've got help started. Stay on the line with me, okay?
"Complainant: I'm on the line.
"911 Operator: Listen to me carefully. Do you know his last name?
"Complainant: It's Davis.
"911 Operator: Davis? Okay, what's his first name?
"911 Operator: What is it?
"911 Operator: Adrian?
"911 Operator: Okay. What's his middle initial?
"Complainant: Martell. He's runnin' now."
Female Voice: Help! Help! Adrian's beating me...The statement in Davis is meant to direct police to Davis; it is not a part of the ongoing activity like the second. It may have been emotional but how many of us have seen people lie with emotion - especially in domestic cases.
Male Voice: Hang up the phone, B/tch!
CLICK . . .
Do we know if she called Davis over and then attacked him in a drunken rage leading to her injuries as he fought her and her hair dryer, knife or lamp off (yeah, I actually had the first case and saw the others)? Was there a dispute over child custody and the possibility Davis was never there and this was a set up? The latter is unlikely, though not unheard of (some claim that up to 80% of domestic violence accusations are false), but, unfortunately, the former is not terribly unusual.
Scalia tries to justify the use of the 911 recording by stating "No 'witness' goes into court to proclaim an emergency and seek help." True, but from the defendant's point of view the witness isn't making that 911 call to proclaim an emergency and seek help. She's making that call to seek to harm him. And whether Justice Scalia believes it or not people in domestic disputes make statements all the time, whether in court or out, with the intention of hurting one another.