In Sharper Focus: Confrontation Clause Jurisprudence-Testimonial and Non-Testimonial Statements.

This post is meant as a companion piece to better understand the merit decision in State v. Clark, posted here.

Federal Precedent

In 2004, in Crawford v. Washington, a landmark opinion of the U.S. Supreme Court authored by Justice Scalia, the Court held that to meet the requirements of the Confrontation Clause, certain kinds of out-of-court statements labeled “testimonial statements” could not be used at trial unless the person who made the statements was available to be cross-examined. While it gave some examples, the high Court did not define “testimonial” at the time, choosing to leave that issue for future development.

In 2006, the U.S. Supreme Court decided a pair of domestic violence cases, Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, to further flesh out the distinction between testimonial and nontestimonial statements by formulating what has become known as the primary-purpose test. In Davis, the victim made statements to a 9-1-1 operator identifying her assailant and describing his whereabouts immediately after an assault. The Court found these statements to be nontestimonial and hence admissible even though the victim did not appear at trial to testify. Statements are non-testimonial when their primary purpose is to help police respond to an ongoing emergency. In the absence of the declarant, nontestimonial statements can be admitted in some other way or by some other person.  In this case the  court admitted the recording of the 9-1-1 tape.

By contrast, statements are testimonial when their primary purpose is to gather evidence to help prove a crime. In Hammon, the victim made statements to police officers responding to a domestic violence call, after the scene had been secured.  The victim was subpoenaed but did not appear at trial. The state tried to introduce her statements through the police officer who had questioned her. The Court found these statements testimonial, and hence inadmissible because their primary purpose was to help in the prosecution the offender.

Michigan v. Bryant,  562 U.S. ___ (2011) the statement of a dying man at the scene identifying his killer in response to police questioning is nontestimonial and admissible (through the police officers who had spoken with him at the scene) as the primary purpose of police questioning was to meet an ongoing emergency. In this case the Court greatly expanded the concept of an ongoing emergency and held that context very much matters.  Key factors the Court found highly important were the victim’s urgent medical condition, the threat to the public of a shooter still at large, and the lack of formality of the police questioning.  Taken together, the primary purpose of the questioning was to meet an ongoing emergency.

Supreme Court of Ohio

State v. Stahl, 2006-Ohio-5482

Stahl involved statements made by an alleged adult rape victim to a nurse practitioner during a medical exam in a hospital unit dealing with sexual assault victims. The statements identified the defendant as the rapist. The alleged victim died before trial.

In a 4-3 decision, the Ohio Supreme Court held that statements made to the nurse practitioner, including statements identifying the defendant, were primarily for medical use purposes, and thus nontestimonial and admissible–even though the alleged victim had signed a statement that she understood all evidence collected would be used only in the investigation and prosecution of the crime.

In Stahl, the Court limited the application of the primary-purpose test to statements made to law enforcement personnel.

To determine whether statements to non- law-enforcement personnel were testimonial, the court adopted an “objective witness” test, also taken from Crawford.  Using this test, a testimonial statement is one made  “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant’s expectations.”

The majority decision in this case was written by Justice O’Donnell.  Then-Justice O’Connor joined the majority.  Of those still on the court, Justices Pfeifer and Lanzinger dissented, finding the victim knew at the time her statements would be used against the defendant at trial.

State v. Siler 2007-Ohio-5637

This case involved statements made by a three year old to the police, implicating his father, the defendant, in the murder of his mother.  Originally in the case, the trial court permitted the statements to come in as excited utterances, and the Supreme Court of Ohio denied review.  But the U.S. Supreme Court accepted the case, vacated it, and sent it back to the appeals court for reconsideration in light of Crawford. On remand, the appeals court found the child’s statements testimonial, and thus non-admissible.  The state appealed, and argued that the high court should use the objective witness test articulated in Stahl. The Supreme Court of Ohio disagreed, finding the statements made by a child to the police to be testimonial because they were to aid in the prosecution of the boy’s father.

The Court adopted the primary purpose test, quoting Davis in the case syllabus:

To determine whether a child declarant’s statement made in the course of police interrogation is testimonial or nontestimonial, courts should apply the primary-purpose test: “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 objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006), __ U.S. __, 126 S.Ct. 2266, 2273-2274, 165 L.Ed.2d 224, followed.)

Justice O’Donnell wrote the 5-2 majority opinion in the case.  Then-Justice O’Connor again joined the majority opinion, as did Justice Pfeifer.

State v. Muttart, 2007-Ohio-5627

The defendant, who was convicted of three counts of raping a child under the age of thirteen, challenged the admission of statements implicating him made by the child victim (his daughter) to a social worker and other medical care personnel. The child did not testify at the trial.  Writing for a unanimous court, then Justice O’Connor found the statements admissible under Evid.R. 803(4), an exception to the hearsay rule for statements made for the purpose of medical diagnosis and treatment.  The Court applied the objective-witness test in this case and found the statements non-testimonial, because the statements were made for a purpose other than law enforcement and were not elicited for the purpose of any ongoing police investigation. The fact that the information gathered by the medical personnel was subsequently used by the state did not change the fact that the statements were not made for the state’s use.

O’Connor wrote the decision for a unanimous court, in which Justice Pfeifer concurred in judgment only.

State v. Arnold, 2010-Ohio-2742

The defendant was charged with the rape of his four year old daughter.  At issue were statements she made to a social worker at the Center for Child and Family Advocacy at Nationwide Children’s Hospital. The child did not testify at trial.  The court allowed the statements in through the social worker.  At issue was the primary purpose of the statements to the social worker.  The 4-2 decision  (then-chief Justice Eric Brown did not participate)  again written by then-Justice O’Connor, found that the statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible, but statements made for medical diagnosis and treatment were nontestimonial, and thus admissible.  Some of the child’s statements fell into each category because the interviewer served in a dual capacity—for law enforcement and for medical professionals.

Justices Pfeifer and O’Donnell dissented. O’Donnell criticized the majority for dissecting the statements question by question, instead of looking at the primary purpose of the questioning, which was clearly to aid law enforcement.  Pfeifer did not believe a single interview can be testimonial and nontestimonial at the same time.


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