RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – What is Testimonial?

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A Practice Manual, 4th Edition
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What is Testimonial?

Crawford offers little guidance in determining whether a statement is testimonial, suggesting three possible definitions:

“[E]x parte in-court testimony or its functional equivalent.” Crawford, 541 U.S. at 51 (quoting Brief for Petitioner 23).
“[E]xtrajudicial statements… contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”; Id. at 52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment)).
“[S]tatements that were made in circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. (quoting Brief for the National Association of Criminal Defense Lawyers et al., as Amici Curiae 3).
The only definitive examples of testimonial statements that the court gives are:

Ex parte testimony at a preliminary hearing.
Statements taken by police officers in the course of interrogations. Id. at 52.

(Interrogation is meant in a colloquial sense, rather than a technical sense. Id. at 53 n.4.)
Davis v. Washington, 547 U.S. 813 (2006), provided valuable guidance in distinguishing testimonial from non-testimonial statements in the context of law enforcement interrogations. The Court suggested that no communication with police and emergency personnel is per se testimonial or non-testimonial. Instead, one looks to the primary purpose of the communication.

When the primary purpose of the interrogation is to effectively respond and assist with an ongoing emergency, the statements are non-testimonial.
When there is no such emergency, or the emergency has passed, and the primary purpose of the interrogation is to gather information of the prior events in order to arrest and prosecute the offender, the statements are testimonial.
The Rhode Island Supreme Court has made several determinations regarding what it considers testimonial under Crawford:

State v. Feliciano, 901 A.2d 631 (R.I. 2006). Days before his murder, the decedent told a close friend that he was assaulted and he identified one of the assailants. The information supported the state’s theory that the assailant solicited defendant to murder the decedent. At trial, the state was permitted to present that testimony under Rule 804(c), the hearsay exception for a declaration of decedent made in good faith.

R.I.S.C. held that Crawford did not apply because the statement to a friend was non-testimonial and not made in anticipation of a future use at trial.
State v. Pompey, 934 A.2d 210 (R.I. 2007). Police responded to a domestic assault call and were greeted at the door by the visibly upset and shaking victim, who stated “[Defendant] beat me up.” The victim did not testify at defendant’s probation revocation hearing and the state sought to admit her statement through the responding officer.

Applying the interrogation test from Davis, R.I.S.C. affirmed the hearing justice’s finding that the statement was “nontestimonial and made voluntarily during the initial response of the police officer to an emergency call for assistance.” It was then determined to be admissible hearsay as an excited utterance.
Even if a statement is testimonial, Crawford does not apply to probation revocation hearings “because a probation violation proceeding is not a criminal prosecution.” Id. at 214.
State v. DeJesus, 947 A.2d 873 (R.I. 2008). Following his arrest for robbery and murder, defendant was questioned by his cellmate and confessed to the crime, unaware that his cellmate was a wired government informant. The informant died before trial and the state requested to admit the recorded confession in his place. Defendant argued that the recording was testimonial because the government informant made it in anticipation of prosecution and, therefore, admitting the recording violated his right to confront the informant. R.I.S.C. held that argument to be unavailing because the statements were nonhearsay.

Crawford applies to testimonial statements only if they are offered to establish the truth of the matter asserted. The informant’s statements and questions on the recording were only offered to show the context of defendant’s responses. Redacting only the informant’s questions also would have made it incomprehensible to the jury.
Ballard v. State, 983 A.2d. 264 (R.I. 2009). The statement of an out-of-court declarant was read into the record without the defendant having the opportunity to cross-examine declarant. The statement was testimonial hearsay under Crawford.

However, defendant’s application for post-conviction relief was denied because “Crawford should not be applied retroactively to cases that had already been decided on direct review.” Id. at 269 (citing Whorton v. Bockting, 549 U.S. 406 (2007)).
The court did note that, “Mr. Ballard’s argument is based solely on the federal constitution, and we are bound by the United States Supreme Court’s construction of the federal constitution,” perhaps implying that they would give more consideration to this issue if argued under the state constitution.
State v. Harris, 871 A.2d 341 (R.I. 2005). The issue was whether a statement made by a witness who was unavailable at trial could be the proper subject of testimony by the police officer to whom she gave the statement.

Because “defendant himself both elicited and opened the door to the testimony he now assigns in error. [w]e need not and therefore do not decide whether the statement at issue here was “testimonial’ as that term was used by the United States Supreme Court in Crawford.” Id. at 345, n.12.
State v. Lynch, 854 A.2d 1022 (R.I. 2004). R.I.S.C. concluded that defendant opened the door to the hearsay evidence and any error was harmless. Crawford did not apply.

Because Crawford’s application has proven to be very fact-dependent.:

Argue that the hearsay statement is testimonial in nature. Under Crawford, it is no longer constitutionally sufficient that a statement falls within a hearsay exception to be admitted.
Argue that the statement was made in circumstances under which it would be reasonably evident to an objective person that the statement would be available for use at trial. See People v. Cortes, 781 N.Y.S.2d 401, 406 (N.Y. Sup. Ct. 2004); State v. Powers, 99 P.3d 1262, 1266 (Wash. App. 2004).
Argue that non-testimonial statements must still pass the minimal reliability standard of Roberts. See Horton v. Allen, 370 F.3d 75 (1st Cir. 2004); United States v. McClain, 377 F.3d 219 (2nd Cir. 2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004); State v. Rivera, 844 A.2d 191 (Conn. 2004); Demons v. State, 595 S.E.2d 76 (Ga. 2004); State v. Vaught, 682 N.W.2d 284 (Neb. 2004).

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