Out-of-court Statements - Supreme Court Landmark Cases

Out-of-court statements, even if offered for their truth, are not ipso facto testimonial. (See Crawford, supra, 541 U.S. at p. 51 "not all hearsay implicates the Sixth Amendment's core concerns".) The Supreme Court explained by way of example: "An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted." (Ibid.) The court recognized that "where nontestimonial hearsay is at issue, 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 altogether." (Id. at p. 68.) It also reiterated that the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414, (1985)." (Id. at p. 60, fn. 9.) In Crawford v. Washington (2004) 541 U.S. 36 at p. 68, the Supreme Court declined to provide a comprehensive definition of testimonial statements. But it gave some guidance: "Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' ; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' ; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial' ." (Id. at pp. 51-52.) In Davis v. Washington (2006) 547 U.S. 813, the United States Supreme Court held that a victim's initial statements to a 911 operator that identified her assailant, who was at the premises, were not testimonial. (Id. at pp. 829) The court made clear the Confrontation Clause applies only to testimonial hearsay. (Davis, supra, 547 U.S. at pp. 823-824.) "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Id. at p. 821.) The court explained that 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." (Id. at p. 822.) In contrast, statements made during police interrogation "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." (Ibid.) Thus, a domestic violence victim's statements to police concerning the past actions of her husband, which presented no ongoing emergency, were testimonial. (Id. at pp. 829-832.) In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, "Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. " (Id. at p. 308.) At trial, the prosecution placed into evidence "three 'certificates of analysis' showing the results of the forensic analysis performed on the seized substances." (Ibid.) The certificates, which "were sworn to before a notary public," "reported the weight of the seized bags" and the analyst's finding that the substance contained cocaine. (Ibid.) The U.S. Supreme court determined in Melendez-Diaz that the analysts' certificates were testimonial because they were "quite plainly affidavits" and were made under circumstances that provided an objectively reasonable basis for believing they would be available for use at a later trial. (Id. at pp. 310-311.) Consequently, the certificates were "functionally identical to live, in-court testimony" and "the analysts were 'witnesses' for purposes of the Sixth Amendment." (Ibid.) It held that "absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to '"be confronted with"' the analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354." (Id. at p. 311.) In the course of its analysis, the Supreme Court explained "the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause." (Id. at p. 324.) "As we stated in Crawford: 'Most of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy.' 541 U.S., at 56, 124 S.Ct. 1354. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial." (Ibid.) In Bullcoming v. New Mexico (2011) U.S. (131 S.Ct. 2705), the defendant was charged with aggravated driving while intoxicated. (Id. at p. 2711.) The principal evidence against him was a forensic laboratory report certifying that his "blood-alcohol concentration was well above the threshold for aggravated DWI." (Id. at p. 2709.) "At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample." (Ibid.) The U.S. Supreme Court held that the confrontation clause does not permit "the prosecution to introduce a forensic laboratory report containing a testimonial certification--made for the purpose of proving a particular fact--through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification" unless "the analyst who made the certification . . . is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." (Id. at p. 2710.) The court stated that "the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination." (Id. at p. 2716.) In Michigan v. Bryant, 562 U.S. 344 (2011), the U.S. Supreme Court held that statements made by a shooting victim to police officers who discovered him mortally wounded in a gas station parking lot were nontestimonial because the objective circumstances indicted that "the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Davis, 547 U.S., at 822, 126 S.Ct. 2266." (Id. at p. 1150.) The court observed: "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." (Id. at p. 1155.) It explained: "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. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." (Ibid.) The court advised that "when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the 'primary purpose of the interrogation' by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs." (Id. at p. 1162.) In Williams v. Illinois (2012) U.S. (132 S.Ct. 2221), in a court trial for rape, the prosecution's expert witness confirmed that an outside laboratory, Cellmark, produced a DNA profile matching a DNA profile produced by the state police laboratory based upon the defendant's blood sample that had been obtained when he was arrested on another occasion. (Id. at pp. 2227-2231, 2236 (plur. opn. of Alito, J.).) Cellmark's report was not admitted into evidence. (Id. at p. 2230.) The expert testified that Cellmark's business records indicated that the state laboratory had sent the rape victim's vaginal swabs to Cellmark. (Id. at pp. 2227, 2230.) A fractured Supreme Court affirmed the judgment of the Illinois Supreme Court, which had upheld the judgment of conviction against a claim that the expert's testimony had violated the defendant's confrontation rights. (Id. at pp. 2231-2232, 2244.) The plurality opinion in Williams articulated two independent rationales for its conclusion. (Id. at pp. 2228, 2244.) The first reason was that the challenged expert testimony regarding Cellmark's out-of-court statements was not admitted for the purpose of proving the truth of the matter asserted but rather for "the legitimate nonhearsay purpose of illuminating the expert's thought process." (Id. at pp. 2228, 2239-2240.) The second basis was that the out-of-court statement was nontestimonial under the objective "primary purpose" test. (Id. at pp. 2228, 2242-2243.) The plurality reasoned that the outside laboratory report's "primary purpose," "viewed objectively," was "to catch a dangerous rapist who was still at large" and "not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time," and "not to accuse petitioner or to create evidence for use at trial." (Id. at p. 2243.) In a separate opinion concurring in the Williams judgment, Justice Thomas also concluded that Cellmark's out-of-court statements were not testimonial but for an entirely different reason, namely their lack of formality and solemnity. (Id. at p. 2225.) He stated that "the Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact," and "although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation." (Id. at p. 2260.)