Can claims made to non-state actors be testimonial?
by: Ryan • May 6, 2011 • no comments
As most of you know, the federal guarantee of confrontation is implicated when the declarant (1) doesn't show up at trial and (2) the out-of-court statements are testimonial. The usual short-hand definition of "testimonial" are accusatory type statements made to the police or other state actors (such as CARES). This definition is quite simplistic and even on its terms not entirely accurate, but it serves at least as a starting place for the analysis.
But there's been a petition for cert submitted to SCOTUS that serves as a reminder that in fact, there is an argument that testimonial statements might - just might - include statements that have not been made to state actors.
As noted at the Confrontation Blog, the issue in the petition is this:
The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.
The facts are that the declarant made the statements to family and friends before she died. (It's a murder case, but this issue also arises in cases such as elder fraud, to give just one example, where the declarant died before trial.)
Anyway, I write this post simply to remind everyone that a short-hand analysis can be useful, but there are still a lot of unanswered questions about confrontation that may turn out better for us than we now assume.
