Also known as: non-testimonial
Written by attorneys — see sources 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.
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.
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.
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.
3 common questions
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.
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 caseNaveen 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.
In March 1963 Ernesto Miranda was arrested at his home in Phoenix and taken to the police station where he was identified by the complaining witness. He was then questioned by two officers in Interrogation Room No. 2 for two hours. The officers did not advise him of any right to counsel. Miranda signed a typed confession that was introduced at his trial for kidnapping and rape. On October 14 1960 Michael Vignera was arrested in connection with a Brooklyn robbery. He was taken first to the 17th Detective Squad headquarters in Manhattan and later to the 66th Detective Squad. A detective questioned him for several hours without any advice concerning counsel. Vignera made an oral admission. He was then questioned by an assistant district attorney whose transcribed statement was also introduced at his trial for first-degree robbery. On March 20 1963 Carl Calvin Westover was arrested by Kansas City police as a suspect in two local robberies. Kansas City police interrogated Westover on the night of his arrest. The next day local officers interrogated him again throughout the morning. Westover was then turned over to FBI agents who questioned him for two to two-and-a-half hours about California robberies and obtained signed confessions. At the time the FBI agents began questioning Westover he had been in custody for over fourteen hours. On January 31 1963 Roy Allen Stewart was arrested at his home in connection with a series of purse-snatch robberies. During the next five days police interrogated Stewart on nine different occasions without any advice of rights. On the ninth session Stewart confessed. Transcripts of the interrogations were introduced at his trial for kidnapping rape and murder. The Arizona Supreme Court affirmed Miranda's conviction. The New York courts affirmed Vignera's conviction. The Ninth Circuit affirmed Westover's conviction. The California Supreme Court reversed Stewart's conviction. The Supreme Court granted certiorari in the four cases and consolidated them for argument.
2 common questions
A handwriting exemplar is nontestimonial because it reveals only physical characteristics and does not communicate factual assertions from the mind of the accused.
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…