Also known as: non-testimonial
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A statement whose primary purpose is to enable police to respond to an ongoing emergency rather than to establish past events for prosecution. Such statements may be admitted without confrontation even if the declarant does not testify at trial.
A statement whose primary purpose is to enable police to respond to an ongoing emergency rather than to establish past events for prosecution. Such statements may be admitted without confrontation even if the declarant does not testify at trial.
Select any source to read its text and confirm it supports the definition.
Evidence consisting of physical characteristics or acts that do not communicate factual assertions from the mind of the accused. Such evidence may be compelled without violating the Fifth Amendment privilege.
Select any source to read its text and confirm it supports the definition.
Evidence consisting of physical characteristics or acts that do not communicate factual assertions from the mind of the accused. Such evidence may be compelled without violating the Fifth Amendment privilege.
Each sense below has its own examples, sources, and questions.
Natalie Norris called 911 while her estranged husband was still inside the home brandishing a knife. She described the immediate threat and her location so officers could intervene. The recording was admitted at trial even though Natalie did not appear.
Nathan Nguyen flagged down officers after a street fight and told them the attacker remained nearby with a gun. The court examined the public setting, the unknown location of the assailant, and the weapon type to decide the statements remained nontestimonial.
Noelle North told her preschool teachers that her stepfather had caused her bruises. The teachers questioned her to determine whether she could safely return home. The statements were admitted without confrontation because their purpose was child protection rather than evidence gathering.
Naomi Norton gave a recorded statement to police describing a stabbing she witnessed. The statement was taken after the emergency had ended and was offered against the defendant at trial.
An ongoing emergency ends when the threat to the victim or public has been neutralized, such as when the perpetrator flees and no longer poses an immediate risk. Courts then examine whether later questions shift to documenting past events for prosecution.
Supporting sources
Statements to non-police personnel such as teachers can be nontestimonial when the primary purpose is to protect the declarant from ongoing harm rather than to create evidence for trial.
Supporting sources
The Confrontation Clause does not apply to nontestimonial hearsay. States retain flexibility to develop hearsay rules for such statements.
Supporting sources
Nalini Narula was stopped on suspicion of a recent assault and asked to state her name. She refused and was charged with obstruction. The name request was treated as nontestimonial because it sought only identifying physical information rather than a factual admission.
Naveen Nanda made an unwarned statement that led officers to a hidden weapon. The weapon itself was introduced at trial. The physical item was nontestimonial and therefore not suppressed even though the statement was excluded.
A handwriting exemplar is nontestimonial because it reveals only physical characteristics and does not communicate factual assertions from the mind of the accused.
Supporting sources
Refusal to submit to a blood-alcohol test is nontestimonial and may be admitted without violating the Fifth Amendment privilege against self-incrimination.
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…