Testimonial Statement Confrontation Clause
Crawford v. Washington (2004) 541 U.S. 36, did not specify what constitutes a testimonial statement for purposes of the confrontation clause, but offered examples of the "various formulations of this core class of 'testimonial' statements," i.e., "'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,' citation; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' citation; and '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,' citation." (Id. at pp. 51-52.)
Subsequently, the high 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. 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 v. Washington (2006) 547 U.S. 813, 822 (Davis).)
Three years later, the United States Supreme Court issued its 5-4 decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), where the trial court had "admitted into evidence affidavits reporting the results of forensic analysis, which showed that material seized by the police and connected to the defendant was cocaine. The question presented was whether those affidavits were 'testimonial,' rendering the affiants 'witnesses' subject to the defendant's right of confrontation under the Sixth Amendment." (Melendez-Diaz, supra, 557 U.S. at p. 307.)
The court determined that, since "the 'certificates' are functionally identical to live, in-court testimony" (id. at pp. 310-311) and were made to provide prima facie evidence of the composition, quality, and weight of the analyzed substance, under Crawford they were "testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment." (Id. at p. 311.) The "testimonial" documents were therefore not admissible, because the analysts were not subject to cross-examination and the petitioner had no prior opportunity to cross-examine. (Ibid.)
Bullcoming v. New Mexico, 564 U.S. 647 (2011) reiterated the principle stated in Melendez-Diaz that a document created solely for an evidentiary purpose in aid of a police investigation is testimonial.
Furthermore, even though the analyst's certificate was not signed under oath, as occurred in Melendez-Diaz, the two documents were similar in all material respects. (Ibid.)
Thereafter, in Michigan v. Bryant (2011) 562 U.S. 344 131 S.Ct. 1143 (Bryant), the United States Supreme Court considered whether admission of a mortally wounded victim's statements to police officers violated the confrontation clause. Police officers asked the victim what had happened and who had shot him. The victim identified the defendant and said the shooting had occurred about 25 minutes earlier. (Ibid.)
The high court held that the primary purpose of the interrogation was to enable law enforcement to meet an ongoing emergency. In its description of "'ongoing emergency,'" the high court identified several factors that informed the determination of the primary purpose of the questioning, such as the formality of the encounter, and the statements and actions of both the declarant and the interrogator.
Quoting from Davis, supra, 547 U.S. at page 822, the United States Supreme Court noted, "We cannot say that a person in the victim's situation would have had a 'primary purpose' 'to establish or prove past events potentially relevant to later criminal prosecution.'" Under all of the circumstances of the encounter, the court concluded the victim's identification of the defendant was not testimonial hearsay.