So how is the question of whether a statement is testimonial to be made if the statement is not testimonial? The principal theoretical issue that divided the majority and the dissent in Bryant – from whose perspective should the determination of whether a statement is testimonial? – does not arise if there is no interrogation: The choice must be made from the perspective of the speaker.
Bryant does appear to expand on Davis v. Washington by creating a general principle that “primary purpose” is determinative in all circumstances of whether a statement is testimonial. As I have written before, I think it would be better to speak of understanding or anticipation than of purpose, especially given that the test is supposed to be an objective one. Moreover, if determining the primary purpose requires a weighing of objectives – “Of these two (or more) purposes served by making the statement, which one would have been more important to a reasonable declarant in the position of the actual declarant?” – it is, as Justice Thomas wrote in his partial dissent in Davis v. Washington, “not reliably discernible,” and the test becomes inevitably “an exercise in discretion.”
But note how Justice Scalia handles “primary purpose” in Bryant. It is important to bear in mind that he was the author of both Crawford and Davis. In Bryant, of course, he was in dissent, but he was writing on a question that the majority does not address – how to determine the primary purpose of the declarant given that his purpose alone is determinative in the particular case. Scalia, of course, addressed that question because in his view only the declarant’s purpose is ever determinative. The majority did not address that question because in its view the purpose of the interrogator, if there is one, is also important, and indeed in Bryant the majority paid much more attention to the interrogator's perspective. But in a case without an interrogator, the majority will have to consider the speaker's perspective more carefully.
Justice Scalia wrote:
For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.
That’s a useful, serviceable standard. It avoids the problems highlighted by Justice Thomas. And I believe it is consistent with Bryant. Courts should apply it.