As a result of my statement, my listeners may believe that what I say happen did in fact happen; as a result of that belief they may take action; and as an ultimate result of that action, the person whose conduct I am describing may suffer serious adverse consequences. Accordingly, my listeners, or others, regard it as important that I speak truthfully.Our emphasis in the brief and essay was on the capacity of the speaker. But let’s move beyond that question – let’s assume an adult who is plainly capable of being a witness. I think recognition of a similar chain of causation (by a posited reasonable person) is what determines whether the given statement is testimonial. That is, if a reasonable person in the position of the speaker would realize that as an ultimate result of the statement the legal system may plausibly take action of significant consequence, and therefore the speaker is regarded as under an obligation to speak truthfully, the statement should be deemed testimonial. The speaker is self-consciously creating evidence that may be used in adjudication; that is witnessing. If the legal system allows a statement made under such circumstances to be admitted against an accused without the speaker confronting the accused, then we have created a system in which a prosecution witness can testify without confrontation.