Determining Whether a Statement Is Testimonial In Nature
In People v. Cage (2007) 40 Cal.4th 965, the court set forth several factors pertinent to the determination of whether a statement is testimonial in nature:
"First, . . . statements that are testimonial . . . are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.
Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.
Third, the statement must have been given and taken primarily for the purpose ascribed to testimony -- to establish or prove some past fact for possible use in a criminal trial.
Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.
Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses.
Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Cage, supra, 40 Cal.4th at p. 984.)