Another good decision in a fresh-accusation case

 There are, in my view, a lot of bad decisions involving fresh accusations, made shortly after the alleged crime, often to a 911 operator or a responding police officer.  I believe the "primary purpose" test insisted on by the Supreme Court muddies up this field and makes it too easy for trial courts to admit out-of-court statements that any reasonable observer would likely understand from the beginning were likely to be used as evidence in a prosecution.  Several months ago, I posted about a good decision by the Minnesota Court of Appeals.  And now there's another, State v. Johnson, issued by the Ohio Court of Appeals, 8th District.  But it's 2-1, and the fact that there was even an issue is one more demonstration of the weakness of the "primary purpose" test.

This is a domestic-violence case.  The complainant fled the house, went to her parents', and there made a 911 call that included the statements at issue.  The majority, in an opinion by Judge Eileen Gallagher, did the best it could within the confines of the "primary purpose" test and held the statement testimonial.  The dissenting judge, Sean Gallagher, thought the primary purpose of the complainant was to get police protection.

In my view, the majority was clearly right in deeming these statements testimonial.  Any reasonable person in the position of the complainant must have known that the statements would likely be used to arrest the accused and ultimately might be used in prosecuting him.  If they can be used without the complainant coming to testify, then we have a system in which a witness can find a safe place, make a 911 call, and make extensive statements that will be used to convict the person she accuses.  In what way is that not testifying against him?  

The primary-purpose test asks for an unmanageable inquiry into the psyche of the speaker, and as sometimes applied (as by the dissent here, in a well-written and perceptive but, I think, misguided opinion), relies on an untenable distinction between seeking police intervention for protection and creating testimony.  The sooner it is discarded, and replaced by a test that depends on the reasonable anticipation of a person in the position of the speaker, the better.