Wednesday, March 09, 2005

Statements by Victims to Acquaintances

Sometimes the vicitm of a crime makes a statement to an acquaintance describing the crime. The post-Crawford courts have generally treated these statements as non-testimonial. An example is State v. Staten, (S. Car. Ct. Apps. March 7, 2005)., which may be notable mainly for the long series of digests of post-Crawford cases offered by the court. I think these cases pose a more difficult question than most of the courts have.

I'll put aside for now two interesting and important issues. First, in Staten and some other cases, the crime described in the statement at issue was not the cirme being charged. The statement described a gun being pulled on the declarant; the prosecution was for murder of the declarant the next day. Thus, we have the question of whether a statement made before the crime being tried was committed can be testimonial. I think it can be, and I hope to address that in a later post, but I won't here and instead will assume that the answer is affirmative.

Second, I will assume here that there is not a per se rule that statements made without government involvement cannot be testimonial. I analyze this issue at some length in my paper for the Brooklyn conference. Here, I will assume that if a crime victim makes a statement to a friend and says, "Please pass this on to the police," that is testimonial.

Statements of the type involved in Staten are not accurately described, in the terms used by Crawford, as "casual remarks to an acquaintance." In Staten, the victim was hysterical, and the incident he was reporting, that a gun had been pulled on him, was hardly routine. The statement says, in essence, "I have been the victim of a crime," and describes the crime.

One might argue plausibly that this kind of statement is accusatory in nature and that statements that are accusatory in nature and were not made solely to the perpetrator of the crime or to a confederate of his should be considered per se testimonial. My trouble with this is that I am not sure how it ties in to a more comprehensive theory of what kind of statement is testimonial. Not all testimonial statements are accusatory. But perhaps all accusatory statements not made to the perpetrator or someone who would be expected to be sympathetic to the perpetrator should be considered testimonial. The question is why.

One possible answer is that a person in the position of the declarant would reasonably expect that the statement might be passed on to the authorities -- and if passed on then it would presumably be used in prosecution. This approach ties in to what I consider the best definition of what is testimonial, or at least to one of two optimal variants. (The variant here is an objective one, in terms of a reasonable declarant; I have no strong feelings whether this or a subjective view, in terms of the anticipation of the actual declarant, is the better one. I have explored the matter somewhat in my Brooklyn paper.) But is it factually accurate to say that a reasonable person in the position of the declarant would anticipate that the statement would be passed on? I don't know. (That does not seem to have been the predominant motive of the victim in making the statement, but as I explain in the Brooklyn paper I think the material question is the anticipation of the speaker rather than the motive. ) One thing we can say is that often these statements are passed on. Perhaps a person in the victim's position should realize that if he speaks to a person for protection that person may well find that the best way to give protection is to report the matter to the authorities. But of course often, as in Staten, the recipient does not report the statement, at least until, as in Staten, a more serious crime, which may not have been easily anticipated at the time of the statement, has been committed.

I think this is a tough problem. But hte result in Staten might have been reached by aplying forfeiture doctrine.

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