The Interrogation Bugaboo

Since Crawford v. Washington, some courts have said that a statement is not testimonial unless it is made in response to governmental interrogation. E.g., People v. Bryant, 2004 WL 1882661 (Mich. App. 2004); United States v. Webb, 2004 WL 2726100 (D.C. Super. Dec. 22, 2004). And indeed, some have gone further, refusing to characterize a statement as testimonial unless it meets a restrictive definition of interrogation as "structured police questioning." State v. Barnes, 2004 WL 1773301 (Me. 2004); Fowler v. State, 809 N.E.2d 960 (Ind. App. 2004), transfer granted (Ind. Dec. 10, 2004); People v. Newland, 775 N.Y.S.2d 308 (N.Y. App.), leave to appeal denied, 3 N.Y.3d 679 (2004). This idea has begun to distort police practices, as police try to act in such a way that prosecutors can later argue that statements made to the police were not in response to interrogation.

I believe that te whole supposed interrogation requirement is entirely mistaken. Interrogation is a factor that in some contexts supports an inference that the statement is testimonial, but the statement may be testimonial even though it is not in response to interrogation. In this post, I will not contend against the less extreme proposition that only if a statement is made to a government agent can it be testimonial. I believe that proposition is also erroneous, but I will address it in a later post.

Those who contend that interrogation is necessary for a statement to be deemed testimonial have language they can point to in Crawford, though it is quickly apparent that the language does not really support them. Sylvia Crawford's statements were made in response to police interrogation, and the Court held that, whatever else the category of testimonial statements might include, statements made in response to police interrogation certainly are. Here are the passages in question, with emphasis added in each case:

The Clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class.

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.

Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with to the abuses at which the Confrontation Clause was directed.

There is no indication, then, that statements not made during formal testimnial events -- a preliminary hearing, grand jury or a former trial -- must be in response to police interrogation to be considered testimonial. The Court is very clear that it is merely listing a core class of testimonial statements, a class that plainly includes the statements at issue in the case, and is deciding no more than that these statements are testimonial. Left for another day is the question of what additional statements, if any, shall be considered testimonial. It is true that the Court left open the possibility that it will not consider any statements beyond this core class to be testimonial. Indeed, the fact that the Court took the care, in footnote 4, to offer some elaboration on the meaning of "interrogation" -- saying that it was using the term in a colloquial sense, that it did not have to choose among definitions, and that "Sylvia's recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition" -- confirms that the Court preserved the possibility that the term would in some circumstances be decisive. But that is as far as the Court went in this direction. It offered no intimation that a statement not made in response to interrogaiton would not be considered testimonial. And it certainly did not suggest that if a statement was not "knowingly given in response to structured police questioning" it would not be testimonial; it merely said that a statement meeitng that standard "qualifies under any conceivable definition."

So Crawford does not tell us that a statement must be in response to interrogation to be characterized as testimonial. And common sense tells us that there is no such requirement. Suppose that at trial a prosecutor gives an observer an opportunity to come to the front of the courtoom and then says, "Ms. Observer, I invite you to tell us what you know about this incident." After the witness does so, the prosecutor says, "Thank you. You may go." Of course, defense counsel objects because of a lack of confrontation. "But," says the prosecutor, "this was no witness. I did not subject her to any interrogaiton." The prosecutor is right that there was no interrogation, but of course we would expect the legal argument to be rejected sneeringly. What Observer was doing was testifying. It does not matter that her statement was not given in response to questions; nor would it matter whether she or the prosecutor took the intiative in arranging for her to give the testimony.

So now suppose the invitation comes not at trial but at the police station.: "Ms. Observer, if you care to make a statement, please feel free to do so. I will videotape it, and when we this perpatrator stands trial I will give the prosecutor the tape so that she can play it in front of the jury." I think it is equally obvious that a statement made in response to this invitation is testimonial. And now suppose an observer walks into the police station and says, "You don't know about a crime that has been committed, but I am now going to tell you, and I expect that you will then want to prosecute. Please record what I am about to say, because I expect you will want to use it at trial -- I do not like the idea of being under oath and having to answer questions by some aggressive defense lawyer." I cannot see a plausible basis on which this statement should not be deemed testimonial. Or suppose the observer walks in to the police station with an affidavit completed, describing the crime. Does anyone seriously contend that this is not testimonial?

Now, of course, the statements in these hypotheticals are less formal than in the usual case, in which a witness makes a statement to a police officer in the field, perhaps before the officer is confident that acrime has been committed. But, for reasons that I have already analyzed in a post called The Formality Bugaboo, formality is not required to render a statement decisive. If the declarant in that field situation understands full well that, once the officer receives the statement, it is likely to be used for prosecutorial purposes, it is testimonial. The declarant is creating evidence, and this critical reality is unaffected by the facts that the police officer was not confident until the moment that the statement was made that a crime had been committed, and that structured questioning by the officer was not necessary to secure the statement.

The bottom line is that if the declarant is making the statement with the reasonable anticipation of prosecutorial use, it is testimonial, even if it is made without quesitoning by government authorities or entirely on the witness's own initiative. Interrogaiton may, however, be a significant factor in indicating that the declarant did have this anticipation, because if the authorities are interrogating that is a factor that would often convey to the declarant the likelihood of prosecutorial use. But when the declarant is reporting a crime this factor is not necessary to characterize the statement as testimonial; she knows that she is conveying ot the authorities information about a crime, and presumably she understands that they will use that information to invoke the machinery of criminal justice. To hold that such a statement is not testimonial is merely to try to avoid Crawford because it makes prosecutions more difficult.