In criminal cases, to avoid a violation of the Confrontation Clause of the Constitution of the United States,151 the court must determine whether the out-of-court statements are “testimonial” or “nontestimonial.” If the hearsay statements are testimonial, and the declarant does not testify at trial, and either the declarant is not unavailable or the defendant did not have a prior opportunity to cross-examine the declarant, the Confrontation Clause prohibits the introduction of the statements as evidence. If they are nontestimonial, the introduction of such statements as evidence is governed the rules of evidence.152
“Testimonial” statements include prior testimony at a preliminary hearing, before a grand jury, and at a former trial.153 Statements made in the course of police interrogation are nontestimonial under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.154
Thus, a statement is testimonial and implicates the Confrontation Clause where it is given in non-emergency circumstances and the declarant would recognize that his statements could be used against him in subsequent formal proceedings. By contrast, a casual remark to an acquaintance is a nontestimonial statement. Similarly, statements made in furtherance of a conspiracy are nontestimonial.155 The drawing of blood by the phlebotomist is not testimonial in nature; it is merely a procedure used to collect the blood for analysis of alcohol content.156
Notwithstanding the foregoing, if inadmissible hearsay is admitted without objection, it becomes part of the record and may be considered by the trier of fact.156.1
151. U.S. Const., am. VI.
152. Crawford v. Washington, 541 U.S. 36 (2004); Sanabria v. State, 974 A.2d 107, 117-20 (Del. 2009); Flonnory v. State, 893 A.2d 507, 521-22 (Del.), cert. denied, 549 U.S. 834 (Del. 2006).
153. Crawford v. Washington, 541 U.S. 36, 68 (2004).
154. Davis v. Washington, 547 U.S. 813, 822 (2006).
155. Jones v. State, 940 A.2d 1, 12-13 (Del. 2007).
156. State v. Watkins, No. 0501015316, Smalls, J. (Del. Comm. Pls. Sept. 14, 2006).
156.1. Beeks v. State, No. 192, 2015, slip op. at 7, Seitz, J., disposition reported at 129 A.3d 231 (Del. 2015) (ORDER).
© 2016 David L. Finger