tag:blogger.com,1999:blog-9532013.post110391093056024403..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: The Formality BugabooRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-9532013.post-1105498630064860062005-01-11T21:57:00.000-05:002005-01-11T21:57:00.000-05:00In response to Andrew's first question: I almost ...In response to Andrew's first question: I almost always hesitate to make universal statements, but it is hard to imagine circumstances in which an accusatory statement is made to authorities without it being testimonial. Of course, we have another definitional question then -- what's accusatory? -- but a statement contending that a person has committed a crime would count as accusatory.<br /><br />And in response ot the second question, yes, I agree with Bob that if an accusatory statement is intended for a wider audience than the immediate recipient it is almsot certainly testimonial. In fact, I would go a little further -- if the speaker's anticipation is that the statement will be disseminated more broadly, whatever her hope or purpose may be, it is probably testimonial.Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-1104778789267411332005-01-03T13:59:00.000-05:002005-01-03T13:59:00.000-05:00In response to Brooks's questions: I don't think t...In response to Brooks's questions: I don't think that a line between accusatory and non-accusatory statements has any significance for Confrontation Clause doctrine. Some statements are more accusatory than others (saying the defendant's car was in front of the victim's house may be quite accusatory if the dcelarant knows the victim was murdered that night), but it's not a label that matters for purposes of the Confrontation Clause. Whether a statement is testimonial needs to be determined in light of all the circumstances. If the declarant knowingly tells the police about a crime that has been completed, it is presumably testimonial whatever the circumstances, because the declarant must know the likely evidentiary use. If the declarant gives the poice innocent-sounding information, then presumably we would have to find some indication, not on the face of the statement itself, that the declarant anticipated evidentiary use. Showing that the declarant understood the investigative significance of the information would probsbly be enough, as in the car example above. A declaration by the police that the information may be useful in a criminal investigation would be another. So the degree of accusatoriness might affect the extent ot which we need other indications of testimonial nature, but it's not a binary situation of one rule for statements characterized as accusatory and another for statments characterized as non-accusatory.Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-1104709190248197592005-01-02T18:39:00.000-05:002005-01-02T18:39:00.000-05:00I do not think one can draw too much significance ...I do not think one can draw too much significance from the nature of Walter Dellinger’s argument. He is of course contending for the position that suits the interests of his client. But in any event, I do not think one can substitute the general term “out-of-court declarants” for “conspirators” in his argument without potentially changing the meaning quite drastically. As I pointed out in the main post, and as Michael Dreeben noted in the oral argument of Crawford, it is a relatively rare case in which there is a strong argument that a statement by a conspirator, made in furtherance of the conspiracy and yet offered for the truth of what it asserts, is testimonial. The particular circumstanceso f the Stewart case may provide an example of such a case. But there are numerous circumstances in which the witnesses make statements that should be considered testimonial even though they are not made formally or to government agents.Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.com