Confrontation Clause - Testimonial Hearsay

Testimonial Hearsay

In 2004, in Crawford v. Washington, the Supreme Court of the United States significantly redefined the application of the right to confrontation. In Crawford, the Supreme Court changed the inquiry from whether the evidence offered had an "indicia of reliability" to whether the evidence is testimonial hearsay. The shift was from a substantive and subjective inquiry into the reliability of the evidence, to a procedural question of whether the defendant had been afforded the right to confront her or his accuser. The Court implicitly noted the shift, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."

The Crawford Court decided the key was whether the evidence was testimonial because of the Sixth Amendment's use of the word "witness." Quoting the dictionary, the Court explained that a witness is one who "bear testimony" and that "testimony" refers to a "solemn declaration or affirmation made for the purpose of establishing some fact."

Nonetheless, in Crawford, the Supreme Court explicitly declined to provide a "comprehensive" definition of "testimonial" evidence (and, thus evidence subject to the requirements of the Confrontation Clause). In Davis v. Washington and its companion case, Hammon v. Indiana, the Court undertook exactly this task. The Court explained what constitutes testimonial hearsay:

Statements 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 testimonial when the circumstances indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

The Davis Court noted several factors that, objectively considered, help determine whether a statement is testimonial: 1) whether the statement describes past events or events as they are happening, 2) whether the purpose of the statement is to assist in investigation of a crime or, on the other hand, provide information relevant to some other purpose, 3) the level of formality of the exchange in which the statement is made. The court noted that a single conversation with, for example, a 911 operator may contain both statements that are intended to address an ongoing emergency and statements that are for the purpose of assisting police investigation of a crime. The latter are testimonial statements because they are the sort of statements that an objectively reasonable person, listening to the statements, would expect to be used in an investigation or prosecution.

The Crawford decision left the other basic components of the Confrontation Clause's applicability—the witness's availability and the scope of the cross examination—unchanged.