A person whom a declarant or report preparer intends to accuse of criminal conduct. A statement or laboratory report prepared primarily to accuse such a person is testimonial for Confrontation Clause purposes and requires the declarant to be available for cross-examination unless the defendant had a prior opportunity to confront the declarant.
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How its tested
Common Examples
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DNA Profile From Routine Screening
A retail chain generated a DNA profile from a glove recovered during ordinary loss-prevention sweeps years before any suspicion attached to Grant. At trial an expert relied on the numerical data from that profile solely to explain the basis for his independent opinion matching the crime-scene glove to Grant. Because the profile had been created for ordinary business purposes rather than to accuse any particular person the court treated Grant as outside the category of a targeted individual and admitted the testimony.
Grand Jury Witness Testimony
After a grand jury investigation ended and the target had been exonerated or charged, a witness sought to publish his own testimony. The statute attempted to keep the information from the targeted individual to prevent escape or retribution, but once the investigation concluded that justification no longer applied and the witness could disclose his testimony without violating the secrecy rule.
Michael Smith was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing a series of newspaper articles, he obtained information relevant to alleged improprieties committed by the Charlotte County State Attorney’s Office and Sheriff’s Department. A special prosecutor appointed to investigate the allegations called Smith to testify before a special grand jury which had been convened as part of the investigation.
Florida Statute section 905.27 provides that a grand juror or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury. This prohibition applies except when required by a court for specified purposes. The statute makes it unlawful to publish or disclose any testimony of a witness examined before the grand jury. At the time he testified, Smith was warned by the special prosecutor’s staff not to reveal his testimony in any manner, and that such revelation could result in a criminal prosecution for violating the statute.
After the grand jury terminated its investigation, Smith set out to publish a news story and perhaps a book about the subject matter of the investigation, a publication which would include his testimony and experiences in dealing with the grand jury. He sued in the United States District Court for the Middle District of Florida, seeking a declaration that the statute was an unconstitutional abridgment of speech and an injunction preventing the State from prosecuting him.
The District Court granted summary judgment to the State. The United States Court of Appeals for the Eleventh Circuit reversed. The Supreme Court granted certiorari.
A victim made statements to police describing an assault while the assailant remained at large and the emergency continued. Because the primary purpose of the statements was to obtain assistance rather than to accuse a targeted individual the statements were nontestimonial and the Confrontation Clause did not bar their admission even though the declarant did not testify.
Davis v. Washington547 U.S. 813 (2006)
On February 1, 2001, Michelle McCottry placed a 911 call reporting that her former boyfriend Adrian Davis was beating her with his fists inside her house. The 911 operator asked a series of questions about the location, whether weapons were involved, whether Davis had been drinking, his full name and middle initial, and his current actions. McCottry answered that Davis had just run out the door and was leaving in a car.
Police arrived within four minutes, observed fresh injuries on McCottry's face and forearm along with her shaken state, and noted her efforts to gather her belongings and children. Davis was charged with felony violation of a domestic no-contact order. At trial McCottry did not appear, and the court admitted the 911 recording over Davis's Confrontation Clause objection, leading to his conviction, which the Washington Court of Appeals and Supreme Court affirmed.
On February 26, 2003, police responded late at night to a reported domestic disturbance at the home of Hershel and Amy Hammon. Upon arrival Amy Hammon appeared somewhat frightened on the front porch but initially stated nothing was the matter. After officers entered and separated the couple, one officer questioned Amy in the living room while the other stayed with Hershel in the kitchen. Amy described a verbal argument that became physical, including Hershel breaking the furnace, lamps, and phone, shoving her into broken glass, and punching her in the chest. Amy then completed and signed a battery affidavit stating those events.
Hershel was charged with domestic battery and probation violation. At his bench trial Amy did not appear, and the court admitted the officer's recounting of her statements as excited utterances along with the affidavit over objection. The Indiana Court of Appeals affirmed Hershel's convictions, and the Indiana Supreme Court held Amy's oral statements nontestimonial while finding the affidavit testimonial but its admission harmless beyond a reasonable doubt.
The United States Supreme Court granted certiorari in both Davis v. Washington and the consolidated Hammon v. Indiana cases to address the testimonial character of the statements. The evidence introduced at each trial consisted solely of the out-of-court statements, as neither victim appeared to testify and no other witnesses could identify the assailant or describe the cause of the injuries.
Federal prosecutors obtained a RICO forfeiture order against an entire business enterprise that had been used to facilitate racketeering. The order reached beyond punishment of any single targeted individual and instead aimed at the economic structure of the criminal organization itself.
Alexander v. United States509 U.S. 444 (1993)
Ferris J. Alexander, Sr., had been in the adult entertainment business for more than thirty years. He sold pornographic magazines and sexual paraphernalia, showed sexually explicit movies, and sold and rented videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some thirteen retail stores in several different Minnesota cities, generating millions of dollars in annual revenues.
In 1989, federal authorities filed a forty-one count indictment against Alexander and others. The indictment alleged operation of a racketeering enterprise in violation of RICO. It charged thirty-four obscenity counts and three RICO counts, with the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses.
Following a four-month jury trial in the United States District Court for the District of Minnesota, Alexander was convicted of seventeen substantive obscenity offenses. These included twelve counts of transporting obscene material in interstate commerce and five counts of engaging in the business of selling obscene material. He was also convicted of three RICO offenses predicated on the obscenity convictions. The jury determined that four magazines and three videotapes were obscene under the Miller standards.
Alexander was sentenced to a total of six years in prison and fined one hundred thousand dollars. In addition, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to 18 U.S.C. § 1963. The Government sought forfeiture of the businesses and real estate representing Alexander's interest in the racketeering enterprise, property affording him influence over that enterprise, and assets and proceeds obtained from his racketeering offenses. The jury found that Alexander had an interest in ten pieces of commercial real estate and thirty-one current or former businesses. The District Court ordered him to forfeit his wholesale and retail businesses, all the assets of those businesses including more than thirteen thousand items of inventory, and almost nine million dollars in moneys acquired through racketeering activity.
The Court of Appeals for the Eighth Circuit affirmed Alexander's convictions and the forfeiture order. The Supreme Court granted certiorari to consider whether the forfeiture order violated the First or Eighth Amendments.
When is a laboratory report considered prepared to accuse a targeted individual?
A report is prepared to accuse a targeted individual when its primary purpose at the time of creation is to identify and implicate a specific person in criminal conduct. Reports generated for routine business or medical purposes years before any suspect is identified lack that accusatory purpose and therefore are not testimonial.
Supporting sources
Does the Confrontation Clause bar an expert from relying on a nontestimonial DNA profile?
No. When the profile is not offered for its truth and was not prepared to accuse a targeted individual an expert may rely on the numerical data solely to explain the basis of an independent opinion without violating the Confrontation Clause.
Supporting sources
547 U.S. 813 (2006)
…were testimonial. In my view, the proper test is whether the statements were made with the primary purpose of accusing a targeted individual of criminal conduct. The statements in both cases were not made with such a purpose. They were made in response to questions aimed at addressing an ongoing situation. I would affirm both…
TortsIntentional torts · Harms to the person and property interests (assault, battery, false imprisonment, infliction of mental distress, trespass to land and chattels, conversion)UBEIntermediate