Also known as: nontestimonial · nontestimonial evidence
Written by attorneys — see sources below.
Statements whose primary purpose is to enable police to respond to an ongoing emergency rather than to establish or prove past events for criminal prosecution.
Nora Nash called 911 while her ex-partner was still in the apartment striking her. She shouted the attacker's location and that he held a knife. The initial statements enabled officers to locate and subdue the ongoing threat.
Noreen Nguyen told responding officers at a crowded bar that her date had just brandished a gun and remained nearby. The exchange focused on locating the armed individual and securing the scene before any narrative of prior events.
Natalie Norris told her teachers that her stepfather had struck her that morning and might return after school. The teachers questioned her to decide whether immediate protective steps were needed for the child.
Nolan Nunez spoke to an acquaintance about a planned drug transaction without knowing the listener was cooperating with police. The statements were not made with any expectation they would be used in a later prosecution.
On August 5, 1999, Michael Crawford stabbed Kenneth Lee in the torso during a confrontation at Lee's apartment. Crawford and his wife Sylvia had gone there after Sylvia alleged that Lee had attempted to rape her several weeks earlier. Lee was taken to the hospital and later died from his wounds. Police arrested both Crawford and Sylvia that night. Detectives gave Miranda warnings and interrogated Sylvia twice at the station house. In her recorded statement Sylvia initially denied involvement but eventually admitted she had led Crawford to Lee's apartment and had seen the stabbing. Crawford also gave police a statement describing the events and his belief that Lee may have reached for something before the stabbing. At trial Crawford asserted self-defense, but Sylvia did not testify because of Washington's marital privilege. The State offered Sylvia's tape-recorded statement as evidence that the stabbing was not in self-defense and invoked the hearsay exception for statements against penal interest. The trial court admitted the statement after finding it bore particularized guarantees of trustworthiness. The jury convicted Crawford of assault. The Washington Court of Appeals reversed after applying a nine-factor test and concluding the statement lacked sufficient indicia of reliability. The Washington Supreme Court reinstated the conviction. It determined that Sylvia's statement interlocked with Crawford's statement and therefore bore adequate guarantees of trustworthiness, noting that both accounts were ambiguous on whether Lee had possessed a weapon. The United States Supreme Court granted certiorari.
View caseNicole Navarro answered an officer's request for her name during a lawful Terry stop near the scene of a reported theft. The inquiry sought only to confirm identity and was unrelated to creating evidence of past criminal acts.
The sheriff's department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop. The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had any identification on him, which the officer understood as a request to produce a driver's license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The man refused the officer's requests for identification eleven times. He began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. After warning the man that he would be arrested if he continued to refuse, the officer placed him under arrest. The man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with willfully resisting, delaying or obstructing a public officer in discharging or attempting to discharge any legal duty of his office in violation of Nev. Rev. Stat. § 199.280. Hiibel was tried in the Justice Court of Union Township. The court convicted Hiibel and fined him $250. The Sixth Judicial District Court affirmed the conviction. On review the Supreme Court of Nevada affirmed the conviction in a divided opinion. Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. The United States Supreme Court granted certiorari.
View caseNathan Nguyen complied with a subpoena by turning over company ledgers that documented routine transactions. The act of production conveyed no new factual assertions from his mind about any criminal conduct.
St. Mary's Honor Center, a halfway house operated by the Missouri Department of Corrections and Human Resources, hired Melvin Hicks as a correctional officer in August 1978. Hicks, who is black, received a promotion to shift commander, one of six supervisory positions at the facility, in February 1980. In 1983 the department conducted an investigation of St. Mary's administration that produced extensive supervisory changes the following January. John Powell became chief of custody and Hicks's immediate supervisor, while Steve Long became superintendent. Beginning in March 1984 Hicks was subjected to repeated disciplinary actions. He was suspended for five days on March 3 for violations committed by his subordinates, received a letter of reprimand on March 21 after an inmate brawl during his shift, was demoted from shift commander to correctional officer for failing to log a vehicle use on March 19, and was discharged on June 7 after a heated exchange with Powell on April 19. Hicks filed suit in the United States District Court for the Eastern District of Missouri against St. Mary's and Long. He alleged that the demotion and discharge violated Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983 because they were motivated by his race. The case proceeded through discovery to a full bench trial. After trial the District Court entered judgment for the defendants. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
View caseCourts examine the primary purpose of the questioning. When the caller and dispatcher are addressing an immediate threat such as an ongoing assault with the perpetrator still at large, the statements are non-testimonial. Once the danger passes and the focus shifts to recounting completed events, the statements become testimonial.
Supporting sources
Yes when the teachers' questions aim to protect the child from continuing harm rather than to build a prosecutorial record. The primary-purpose test treats such statements as non-testimonial even though the listeners are not police officers.
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No. Non-testimonial statements fall outside Confrontation Clause scrutiny entirely and may be admitted under ordinary hearsay rules even if the declarant does not testify.
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Courts consider whether the dispute is public or private, whether the suspect remains at large, the breadth of the threat to victims and the public, and the type of weapon involved. These circumstances help decide if the statements were made to resolve an immediate danger.
Supporting sources
…statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during…