Testimonial Hearsay

Testimonial Hearsay Evidence and Crawford v. Washington

In 2004, the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), held that the confrontation clause of the Sixth Amendment to the U.S. Constitution requires the unavailability of the declarant and a prior opportunity for cross-examination of that person for a testimonial hearsay statement to be allowed into evidence. Conversely, where a witness is deemed unavailable and there was no prior opportunity to cross-examine the witness, only non-testimonial hearsay falling within a firmly rooted hearsay exception can be admitted into evidence. As with all hearsay, the critical concern is the lack of opportunity to question and confront the actual declarant about their out-of-court statement.

What is Testimonial Hearsay?

Regarding the Crawford holding, examples of out-of-court "testimonial statements" include ones made to law enforcement officers, other government employees or officials, and statements made in courtrooms or courtroom-like settings or analogous situations. This includes prior testimony in a preliminary hearing, before a grand jury, at a prior trial and also police interrogation situations. Affidavits and depositions are also viewed as being testimonial statements. Basically, the common thread among statements made in such environments is the more "official" or formal nature of such communications.

In contrast, hearsay statements to family, friends, co-workers and neighbors which are typically informal and conversational in nature are not considered testimonial. Calls to 911 and similar statements to law enforcement which, when viewed objectively, have as their primary purpose to enable law enforcement to respond to an ongoing emergency are not testimonial in nature.