”Testimonial” Legal Term

In Davis v. Washington (2006) 547 U.S. 813, the court clarified the term "testimonial," as used in this context, as follows: "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." (Id. at p. 822.)

At the same time, the court noted that it was not "attempting to produce an exhaustive classification of all conceivable statements" as testimonial or nontestimonial. (Ibid.)

Davis, supra, 547 U.S. 813, was decided together with a consolidated companion case, Hammon v. Indiana (2006) 547 U.S. 813.

In Davis, the Supreme Court held nontestimonial, and therefore admissible, tape recorded statements made by a domestic violence victim during a 911 call, in which the victim responded to the 911 operator's questions by identifying her assailant as the defendant, and describing what he was doing to her as the call progressed. (Davis, supra, 547 U.S. at pp. 817, 828-829.)

In Hammon, police officers responding to a domestic violence call encountered the victim alone on the front porch of her home, appearing frightened, but denying that anything was wrong.

After the officers entered the home, one of them questioned the victim outside the defendant's presence, asking her what had happened. She responded that the defendant had thrown her down onto broken glass and punched her in the chest.

The Supreme Court held that because there was no ongoing emergency at the time, and no continuing immediate threat to the victim, the statements were obtained for the purpose of investigating a past crime, rather than to guide police who were intervening in an ongoing emergency. Thus, the statements were testimonial, and their admission was barred by the confrontation clause. (Hammon, supra, 547 U.S. at pp. 820-821, 830.)

In People v. Cage (2007) 40 Cal.4th 965, the court noted that in order for an unsworn statement to be testimonial, "it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony." (Id. at p. 984.)

The statement also "must have been given and taken primarily for the purpose . . . of establishing or proving some past fact for possible use in a criminal trial," an issue that is "to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants." (Ibid.)

Consistent with these principles, responding to questions from police "in a nonemergency situation, . . . where deliberate falsehoods might be criminal offenses," is testimonial; however, "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." (Ibid.)

In Davis v. Washington (2006) 547 U.S. 813, the court clarified what is meant by testimonial statements.

It explained: "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, supra, 547 U.S. at p. 822 165 L.Ed.2d at p. 237, fn. omitted.)

The high court most recently considered whether statements to police officers are testimonial in Michigan v. Bryant (2011) U.S. 179.

The court noted:

"The basic purpose of the Confrontation Clause was to 'target' the sort of 'abuses' exemplified at the notorious treason trial of Sir Walter Raleigh. Thus, the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. Even where such an interrogation is conducted with all good faith, introduction of the resulting statements at trial can be unfair to the accused if they are untested by cross-examination. Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Bryant, supra, U.S. at p. 179.)