Defining a “Testimonial Statement” under Crawford

The Proof of the Common Law is by witness and jury:  let Cobham he here, let him speak it.  Call my accuser before my face . . .

— Sir Walter Raleigh

Unable to confront his accuser at trial, Sir Walter Raleigh was convicted of treason in 1603.  Outrage over the circumstances of his trial is believed to have played a large role in the development of our current jurisprudence on the right to confront one’s accusers at trial.

As Justice Scalia put it in Crawford v. Washington, 541 U.S. 36 (2004):  “[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner:  by testing in the crucible of cross-examination.”

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One of the more recent interpretations of the Confrontation Clause in the District is the D.C. Court of Appeals decision in Austin v. United States, 315 A.3d 580 (D.C. 2024).

The Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.”  In the hierarchy of Constitutional rights, this is a pretty important one.

At the same time, the Confrontation Clause does not bar all out-of-court statements.  In fact, it applies only to “testimonial statements” made by a declarant who does not appear at trial unless the declarant was unavailable to testify and the declarant had had a prior opportunity for cross-examination.

A “testimonial statement” is defined as a statement made in response to an interrogation with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.  Statements are non-testimonial if the primary purpose of the questioning is to enable police to meet an ongoing emergency.”

Courts should consider at least three factors in determining whether a statement is testimonial.  First, the court should consider the circumstances in which the encounter occurs.  Second, the court should consider “the statements and actions of the parties.”  Finally, the court should consider the formality of the encounter. 

The burden is on the government to establish that the statement is not testimonial.

The statement in question in Austin was a 911 call made by an elderly woman after she had been attacked and robbed in the hallway of her apartment building. 

The court considered all three factors in concluding that the call was testimonial and therefore inadmissible. 

First, with respect to the circumstances regarding the call, the court concluded that the call “occurred at a temporal remove from the robbery.”  The complainant described events after the fact, not as they were happening.  She was no longer at the crime scene.  And the lack of an allegation that a weapon had been used lessened the urgency of the call.

Second, with respect to “statement and actions of the parties,” the court noted that, in describing events to the 911 operator after the fact, the primary purpose of the complainant’s call seemed to be to report a crime that had occurred, not resolve an ongoing emergency.

Finally, with respect to the formality of the call, the court noted that the complainant “spoke from a location of relative safety and in a measured tone to report a past event.” 

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Judge Rainey Brandt presided at trial.  Mr. Austin was represented at trial by Wole Falodun and on appeal by Cecily Baskir.