Now compare the situation in which a confederate of the accused makes a statement to a confidential informant or a undercover police officer. In this context, the reasonable-declarant perspective – the one I believe is proper – leads readily to the conclusion that the statement is not testimonial: The declarant presumably has no idea that she is creating evidence for use in the prosecutorial process. But if one takes the questioner's perspective, the statement sure looks testimonial: The questioner is certainly aware that the conversation is generating evidence, and often that is her primary purpose for conducting the conversation. And guess what – in this context the courts are more likely to take the declarant's perspective. The rule seems to be that the prosecution wins. Cf. United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting) (“The sole consistency that I can find is that in litigation under § 7, the Government always wins.”).
Consider the decision this past week in United States v. Udeozor, 2008 WL 271295 (4th Cir. Feb. 1, 2008). The defendant was charged with having committed various forms of abuse , in conspiracy with her husband, against a 14-year-old girl brought over from Africa. The husband disappeared before trial, but the prosecution introduced tapes of telephone conversations that the victim held with him. Even on the assumption, apparently well founded, that the girl made the calls at the behest of the Government, the court concluded that the husband's statements were non-testimonial:
Mr. Udeozor's statements are not testimonial because, objectively viewed, no reasonable person in Mr. Udeozor's position would have expected his statements to be used later at trial. Mr. Udeozor certainly did not expect that his statements would be used prosecutorially; in fact, he expected just the opposite. As discussed above [in concluding that the statements fell within the hearsay exception for declarations against interest], Mr. Udeozor made numerous statements to the victim that were contrary to his own penal interests, including admissions that he had hit the victim, had engaged in sexual intercourse with her, and had smuggled her into the United States illegally. Moreover, he made the victim promise that she would keep their conversation between the two of them. These statements would not have been made by a reasonable person who believed his statements would be used in a later criminal prosecution. * * * Because Mr. Udeozor plainly did not think he was giving any sort of testimony when making his statements to the victim during the recorded telephone calls, the admission of these two taped conversations into evidence did not violate Dr. Udeozor's rights under the Confrontation Clause.Correct result, and, so far as quoted above, at least largely the correct analysis. So has the Fourth Circuit, which had previously minimized the significance of the declarant's perspective, been converted? Nope. The court says, "The intent of the police officers or investigators is relevant to the determination of whether a statement is 'testimonial' only if it is first the case that a person in the position of the declarant reasonably would have expected that his statements would be used prosecutorially." In other words, that the declarant reasonably expected his statement to be used in connection with a prosecution "is necessary – but sometimes not sufficient" for the statement to be deemed testimonial. There really is no justification for this conjunctive test, in which a statement would be testimonial only if both speaker and questioner anticipate from that start that will be used in prosecution; it strikes me as an artificial construct designed simply to limit the category of statements deemed testimonial.