This is not to say that courts adopting a formality rule can find no language in Crawford to cite in their support. First, drawing on a definition given by Noah Webster, Justice Scalia wrote that testimony “is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’" Second, Justice Scalia then offered this contrast: “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Third, one of the three formulations of the class of testimonial statements presented by Justice Scalia is the one adopted by Justice Thomas (with Justice Scalia himself joining) in his separate opinion in White v. Illinois, 502 U.S. 346, 365 (1992): "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."
Even on their face, none of these three passages adopts a formality rule. The Court did not say that testimony must be a solemn declaration; it said that it typically is such a declaration. The two polar categories, “a formal statement to government officers” and “a casual remark to an acquaintance,” plainly do not exhaust all possibilities, and so presenting these two does not indicate where the boundary between testimonial and non-testimonial lies. As for the Thomas formulation, it is only one of three alternatives presented by the Court, and the only one that includes a formality rule. Moreover, it is not clear whether Justice Thomas regards confessions as being a subset of “formalized testimonial materials”; if so, it is not clear why, because confessions can be very informal, and if not, it is not clear why the two sets, “formalized testimonial materials” and “confessions,” should be deemed to constitute the overall class of testimonial statements.
In short, nothing in Crawford compels the conclusion that only formal statements can be deemed to be testimonial. And courts should not adopt such a rule, most importantly because it makes no sense. Consider this exchange (I could make the same point by using the actual statements made by the informant in the decision of the Sixth Circuit in United States v. Cromer, 2004 WL 2711130 (6th Cir. Nov. 29, 2004), which rejected a formality requirement; see my posting on Cromer on this blog on December 9):
Police Officer: Please have a cup of coffee and make yourself comfortable.It seems to me clear that this statement is testimonial. Clearly, Witness is making a statement for use at trial and (if it matters, which I don’t think it should) Officer understands that as well. But just as clearly, the statement seems informal – or, put another way, it cannot be considered formal without robbing that term of all meaning. Finally, it seems obvious that this type of statement should not be admitted against accused if he never has an opportunity to cross-examine Witness. And -- here is the crucial part -- it is inadmissible not despite the lack of formality but, one may say, in large part because of it.
If that chair is too hard, please let me know and I’ll get you a cushion.
Witness: Thanks so much. The chair is fine, but I’d love some milk if you
Officer: Sure. Here you go. You know, I’m collecting evidence for
the trial of Suspect on robbery charges. I know you’ll find it inconvenient and
unpleasant to testify in court, so why don’t you tell me everything you
remember, and then I’ll tell the jury everything you’ve told me. We can do this
very informally. In fact, I’m not even going to take notes. So just start
talking whenever you’re ready.
Witness: OK. Well, I was just walking down Main Street, minding my own business . . . .
What formalities is this statement missing? The presence of the accused and the opportunity for him to cross-examine, most notably. Those, of course, are the essence of the confrontation right. Clearly, the logic could not be that because of their absence the statement is informal and therefore the confrontation right does not apply, because that is a Catch-22 that would prevent the right from ever applying. Apart from those two, the most obvious formality is the oath. But we already know from Crawford itself that the absence of the oath will not make the statement be considered non-testimonial; the majority opinion was quite explicit on this point, see Crawford, 124 S.Ct. at 1365 n.3 ("We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK."), and the statement at issue in the case was not given under oath. There are other formalities as well that usually accompany testimony -- the question-and-answer format and the general ceremonial nature of the courtroom -- but these are of lesser importance; I will explain in a separate post reasons why I do not believe interrogation is necessary to make a statement testimonial.
The bottom line is this: The absence of formalities does not render a statement non-testimonial. Rather, the absence of the most important formalities may make unacceptable as evidence a statement that is testimonial in nature. This casts a helpful light on dictionary definitions , like the one quoted by Crawford, that include formality as a component of testimony: Formality is an ideal, an aspect of testimony given in the optimal way, at trial in open court. The purpose of the Confrontation Clause, indeed, is to ensure that testimony be given in an acceptably formal way, in th presence of the accused and subject to cross-examination. To say that the absence of formality takes a statement that would otherwise be deemed testimonial outside the purview of the Clause would be to treat a defect of the statement into a virtue.
It would also give investigating officers precisely the wrong incentive. Whtever procedure is deemed to be a critical aspect of formality they would tend to avoid, so that statements given to them in full anticipation of evidentiary use would then be deemed non-testimonial and outside the rule of Crawford.
For reasons I hope to explore more fully in future posts, I believe the proper approach to the question of what is testimonial depends on the anticipation of the declarant, or on the reasonable anticipation of someone in the declarant's position, that the statement would be used evidentiarily. The presence of formalities may support a determination that the statement was testimonial; for example, in Crawford the statement was videotaped, with an introduction by the investigating officer that could leave no doubt about why the statement was being taped. But when a witness to a completed crime knowingly makes a statement to the police or other authorities describing the crime, the statement should be deemed testimonial, no matter how informally it was taken, because the likely evidentiary use is so clear. The presence of formalities can reinforce that determination, but they are not necessary to it.