Difference Between Testimonial and Nontestimonial Statements

In Davis v. Washington (2006) 547 U.S. 813, the court formulated the following test to distinguish nontestimonial from testimonial statements made to law enforcement officials: "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.) The court in Davis reasoned that statements to government officials that are "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator" satisfy the definition of a testimonial statement because they are a solemn declaration or affirmation made for the purpose of establishing or proving some fact. (Davis, supra, 547 U.S. at p. 826.) Further, a witness's description of past events to an investigating officer may be testimonial regardless of whether the statements were reduced to a writing signed by the declarant or merely embedded in the memory or notes of the officer. (Ibid.) The court in Davis acknowledged that "formality is indeed essential to testimonial utterance" (id. at p. 830, fn. 5), but stated the requisite formality and solemnity exist when a witness describes past events to an officer, because deliberate falsehoods to officers constitute a criminal offense. (Id. at pp. 826-827.) The court also observed that statements are not automatically nontestimonial even when they were made without any detailed interrogation (i.e., volunteered statements or answers to open-ended questions). (Id. at p. 822, fn. 1.) Under these principles, statements made to a 911 operator describing events as they are actually happening are not testimonial if their purpose was to provide the police with information necessary to resolve a present emergency and they were made in an environment that was not tranquil or safe. (Davis, supra, 547 U.S. at p. 827.) In this circumstance, the 911 caller's statements are not " 'a weaker substitute for live testimony' at trial" because "no 'witness' goes into court to proclaim an emergency and seek help." (Id. at p. 828; see People v. Cage (2007) 40 Cal.4th 965, 984 (Cage) testimonial statements are statements that are "out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial".) Similarly, statements in response to police inquiries at the crime scene are not testimonial if the inquiries were designed to ascertain whether there was an ongoing threat to the safety of the victim, the officers, or the public. (See Davis, supra, 547 U.S. at pp. 829, 831-832; People v. Romero (2008) 44 Cal.4th 386.) For example, questioning a victim to identify a perpetrator for purposes of immediate apprehension of the perpetrator for safety reasons does not yield a testimonial statement. (Ibid. statements "are nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator".) In Romero, supra, 44 Cal.4th 386 the court concluded a victim's statements to the police at the crime scene were nontestimonial under circumstances where the agitated victim described an assault that had just occurred, and a few minutes later identified the perpetrators whom the police found hiding nearby. (Id. at pp. 421-422.) The court reasoned the "statements provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators. . . . The primary purpose of the police in asking the victim to identify whether the detained individuals were the perpetrators, an identification made within five minutes of the arrival of the police, was to determine whether the perpetrators had been apprehended and the emergency situation had ended or whether the perpetrators were still at large so as to pose an immediate threat." (Id. at p. 422.) In contrast, statements that are initially nontestimonial may evolve into testimonial statements if the immediate danger has ended and the questioning continues to elicit details about what happened. (See Davis, supra, 547 U.S. at pp. 817, 828-829 following initial nontestimonial statements, 911 caller's statements may have become testimonial once the caller reported that the assailant (her former boyfriend) had driven away and the operator "proceeded to pose a battery of questions".) Likewise, statements are testimonial if they are in response to police interrogation that occurs after the emergency has been resolved and where there is no immediate need to identify or apprehend a perpetrator. (See Davis, supra, 547 U.S. at pp. 829-830.) For example, the court in Davis found statements made to an officer responding to a report of a domestic disturbance were testimonial because there were no signs of a current disturbance; the wife stated she was fine; the wife made statements incriminating her husband only during a second conversation when she was interviewed in a room separate from her husband and sometime after the events she described were over; and the officer had the wife write out an affidavit to establish what had occurred previously. (Davis, supra, 547 U.S. at pp. 829-832.) The court reasoned that during the second conversation the officer was not seeking information about " 'what is happening' " but rather about " 'what happened' "; the victim was not making a "cry for help" and was not providing information to enable the officers "immediately to end a threatening situation"; and the sole purpose of the interrogation was to investigate a possible crime. (Id. at pp. 830-832.) The court concluded the statements are "an obvious substitute for live testimony, because they do precisely what a witness does on direct examination . . . ." (Id. at p. 830; italics omitted.) Similarly, in People v. Cage (2007) 40 Cal.4th 965, the California Supreme Court concluded a victim's statement to an officer at a hospital waiting room was testimonial under circumstances where the officer had earlier been to the scene of the crime and observed evidence that could suggest the defendant (the victim's mother) had committed an assault; the victim had been transported to the hospital and was awaiting treatment in the emergency room; and the officer asked the victim to describe what had happened between the victim and the defendant. (Id. at pp. 984-985.) The court reasoned that by the time the officer spoke with the victim the incident had been over for more than an hour; the assailant and the victim were geographically separated; and the victim was "in no danger of further violence as to which contemporaneous police intervention might be required." (Id. at p. 985.) The court concluded the officer's "clear purpose in coming to speak to the victim at this juncture was not to deal with a present emergency, but to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity." (Cage, supra, 40 Cal.4th at p. 985.) Rejecting an argument that the officer was determining whether further immediate police action might be necessary to apprehend a perpetrator, the court noted the officer did not try to obtain emergency information from the victim when he saw him near the crime scene even though the victim was coherent; at the hospital the officer questioned the victim in a manner that assumed the defendant was the suspect; and there was no indication the officer followed up with what the victim told him by initiating emergency action. (Id. at pp. 985-986, fn. 15.) On appeal, the Court independently reviews whether a statement was testimonial so as to implicate the constitutional right of confrontation. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1478.) The Court evaluates the primary purpose for which the statement was given and taken under an objective standard, "considering all the circumstances that might reasonably bear on the intent of the participants in the conversation." (Cage, supra, 40 Cal.4th at p. 984.)