Testimonial Statements and the Confrontation Clause

The 6^th and 14^th Amendments of the United State Constitution guarantee an accused party the right to “be confronted with the witnesses against him.” Meaning that if you are charged with a crime and proceed with trial, you have a right to cross-examine testimonial statements by the witness.

Crawford v. Washington 541 U.S. 36, 68 (2004) says that these statements are not admissible against the accused unless the person who made the statement is unavailable and the accused had a chance to cross-examine them.

What are testimonial statements?

To qualify under the confrontation clause, the statement must be, what the court calls, testimonial. A statement is testimonial if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).

But, if the statement is made to help the police respond to a current emergency, the statement is non-testimonial. State v. Echendu, No. 05-11-00346-CR. Davis set out a list of some factors that can be used to determine if the emergency is on-going: “(i) whether the event was still in progress; (ii) whether the questions sought to determine what is presently happening, as opposed to what had happened in the past; (iii) whether the interrogation’s primary purpose was to render aid, and not just to memorialize a possible crime; (iv) whether the questioning was conducted in a separate room, away from the alleged attacker; and (v) whether events were deliberately reported in a step-by- step fashion.”

Are statements made to paramedic’s testimonial?

A statement made for the purpose of medical treatment or diagnosis is not testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n. 2 (2009).

An example is the Dallas 5^th Court of Appeals case, Burns v. Texas. The appellant complained that the witness’s statement to the paramedics “hit her like a man” was testimonial. There, the court decided that the statement made to paramedics was non-testimonial because the witness’s injury was still in progress when they arrived. The court explained that the witness was on the floor when they arrived and needed treatment. The court also said even though it was unclear if the witness said the statement without being questioned or if the paramedics asked her, it was still made to determine the witness’s injuries. The court cited Getocha v. State, 2016 WL 453518, at *4, as another example where the witness’s statement, “he kicked me” to the EMT’s was made for medical purposes and non-testimonial.

According to these cases, determining whether a statement is testimonial or non-testimonial is based on the facts of the case. If the statement is testimonial, the defendant in the case has a right under the United States Constitution to confront the witness and cross-examine him.