The Smith argument and the meaning of "testimonial"

     I believe that the Supreme Court will decide Smith v. Arizona on the assumption, made in the Question Presented in the petition for certiorari, that Rast’s statements were testimonial.  (And I believe they clearly were testimonial.) The state did not challenge that proposition in the Arizona courts, at least not more than very inferentially, and it was not argued there.  I believe the oral argument revealed no disposition on the part of the Court to use this case, at least at this point, to do anything substantive with respect to the question of what statements are testimonial.  But it wouldn’t be surprising if a remand invited the Arizona courts to take another look; the Court sure was interested in the question at argument.  So I’ll offer some comments here. 

     Justice Kavanaugh repeatedly raised the question of whether the Court should adopt Justice Thomas’s view of what is testimonial, dependent on formality or solemnity.  Eric Feigin for the SG and Alex Samuels for the state were hospitable to the idea; Hari Santhanam said, accurately in my view, that the test is too narrow and would not apply to many statements that fit within the core of what is testimonial.  At least that is true, I believe, given how Thomas applied the test in Williams v. Illinois.  But I think that if the Court were to adopt a test based on solemnity and if – very big if – it would apply such a test appropriately, then it might get to a better place.

      I’ve often written on this subject, and I'll do so again, rather briefly, now.  Let’s focus on formality.  Formality is not what makes a statement testimonial; it’s what makes testimony acceptable.  The oath, presence of the accused, and cross-examinations may all be considered incidents of formality, and they are all essential for prosecution testimony to satisfy the standards of our system.  But that does not mean that a statement given informally is not testimonial.  Suppose a police officer says to someone who has witnessed a crime, “I’d like you to tell me what happened.  You can tell me very informally.  You don’t have to take an oath.  I won’t record it, and I won’t take notes.  That way, you won’t have to come to court.  I’ll remember what you say, and I’ll tell the jury.”  That has to be testimonial; if it isn’t, then we have a system in which a witness can knowingly create evidence for use in prosecution by having such an informal conversation and not take an oath, confront the accused, or be subject to cross-examination.  That’s pretty much unthinkable in our system.  Now, I suppose you could say well, that’s really sufficiently formal to be considered testimonial because the witness expected prosecutorial use of the statement – it was “made in contemplation of legal proceedings,” as Justice Thomas put it in his concurring opinion in White v. Illinois (1992).  That would be OK by me, and I think it would get close to a good definition of testimonial, but it seems clear to me that the word formality here is misplaced and is not really doing the work; it’s the expectation of evidentiary use that is.

     If we take a narrower view of formality, in which some set of hoops must be jumped through for the statement to be deemed formal, then we will have virtually nullified the Confrontation Clause, because any witness wanting to create evidence for use at trial, or any investigator seeking to generate such evidence, can simply avoid the hoops.  Is an oath or certification a prerequisite for a statement to be deemed formal, as Justice Thomas suggested in Williams v. Illinois?  Then just avoid oath and certification.  Frankly, I am still mystified by Justice Thomas’s characterization of the lab report in Williams as not testimonial because insufficiently formal.  You can find the report here.  Notice that it’s on letterhead stationery, identified as a report of a laboratory examination, addressed to a forensic science center, and signed by two reviewers, and signed by two reviewers, one of whom is identified as the director of the forensics laboratory and the other as director of the identity laboratory.  In addition, it bears a case number and refers to the materials tested as exhibits and as evidence.  If the Court were to adopt the view that this is not enough to render a lab report testimonial, then it would be a simple matter for labs always to avoid the rule of Melendez-Diaz v. Massachusetts (2009):  Just avoid saying sworn or certified, and you never have to come to court.

     Now let’s talk about solemnity.  It’s not entirely clear what Justice Thomas means when he uses this word.  If he means it as a synonym for formality, then the same concerns apply.  But another, more useful, view of solemnity is possible.  If one takes solemnity to mean appreciation of the gravity of the consequences of making the statement, then it seems to me that gets at the essence of what testimonial means.  That is, if the speaker understands that her statement will likely be used in prosecution, and that it might help convict a person and lead to punishment, then it ought to be deemed to be testimonial.  More on this below, but it seems far preferable to an inherently ambiguous “primary purpose” test.

     Apart from the question of whether the Court should move in the direction of adopting a test based on formality or solemnity, the Court was interested in the question of whether the statements at issue in Smith itself were testimonial.  Justice Barrett particularly pressed the point:  What if a police officer jots down notes only for her own use to help think about the case, without intending them to be incorporated into a report?  (Samuels argued that in fact the in-court expert, Longoni, relied only on the notes of the absent analyst, Rast, rather than on her report; Hari Santhanam, for Smith,  without conceding that point, argued that the two were closely interconnected.)  Justice Kagan said it must depend on the facts of the case; some notes would be testimonial and some not.

     I would take a more categorical approach.  Yes, I think that if a lab tech, understanding that a sample is being tested for possible prosecution, jots down notes before writing a report, or if a police officer jots down notes about a crime scene to help her think about the case, it should be deemed testimonial.  No, such notes might not be formal, in the narrow sense of the word, but that shouldn’t matter.  But they are written in contemplation of being used in prosecution.  And if they are held admissible in favor of a prosecutor, and admitted, then we have a system in which a lab tech or police officer can create evidence for use in court by writing down such notes, and everybody would understand that this is what can be done.  In any realistic sense, the lab tech or officer is testifying by marking down the notes.  Eric Feigin, arguing for the United States as amicus, appeared to acknowledge this point when he said that there is a “chicken-and-egg problem,” because expert opinions will be aware of the Court’s decisions.  In other words, if the Court says that such notes are not testimonial, and that therefore the Confrontation Clause does not restrain their admissibility, then presumably they will be admitted as a regular matter, and they will be created with the expectation – and indeed the purpose – of being used as evidence at trial.

    This points to a complication.  If we are trying to determine the expectation, or the purpose, with which a statement is made by one involved in the criminal justice process, then whether or not the statement would be admissible at trial is a critical factor.   But notice the apparent paradox: If the maker knows the statement would be deemed testimonial, and so not admissible, then it could not be made with the anticipation, or purpose, of being used as evidence at trial.  So wouldn’t that mean that it is not testimonial?  And if the maker knows that the statement would not be deemed testimonial, and so would be admissible, then it likely would be made with the anticipation of purpose of being used as evidence at trial.  So wouldn’t that mean that it is testimonial?  I think there are two plausible approaches that would avoid this paradox.

    One is to ask not about potential use as evidence at trial but only about potential use in the prosecutorial process.  Even if the statement is testimonial, the maker could well anticipate that it would be used as part of that process.  I think that should be enough to render the statement testimonial. If a person makes a statement knowing that it will be used in the criminal justice process, then I believe it is enough to say that the person is acting as a witness as part of the case, by contributing to its resolution, whether or not the statement is formally introduced at a formal trial.

      The other is to assume hypothetically that evidentiary or procedural rules would not prevent the statement from being admitted at trial and ask whether a person in the position of the maker of the statement would reasonably anticipate use at trial. If the answer is affirmative, the statement should be deemed testimonial; the combination of an affirmative answer and admissibility would mean that in our adjudicative system a person could make a statement knowing that it would be used as prosecution evidence at trial and never confront the accused or be subjected to cross-examination.

      I have spoken about purpose as well as anticipation because the Supreme Court has phrased its test in terms of "primary purpose."  But I think that is an unfortunate choice, and if the Court ultimately takes a hard look at the question it should  do away with that test.  Trying to pick one purpose as primary is, as Justice Thomas suggested in Davis v. Washington (2006), a fool's errand.   But more fundamentally,  I believe any test should be expressed in terms of anticipation rather than of purpose.  I gave reasons for this long ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005), which you can see here, and I won't add more now.