Case Dealing With Testimonial Vs Non Testimonial Hearsay
In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme Court held that where testimonial evidence is at issue, this bedrock principle "demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
Although the Crawford Court distinguished between testimonial and nontestimonial hearsay, it did not articulate a comprehensive definition of what it perceived to be testimonial.
However, the Court did caution that "whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
Conversely, where nontestimonial hearsay is at issue, the Court held that "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law as would an approach that exempted such statements from Confrontation Clause scrutiny." Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
Included within that class of hearsay exemptions were business records and statements in furtherance of a conspiracy which the Court acknowledged as historically nontestimonial. Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 195-96, 124 S. Ct. at 1367.