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State v. Staten3/7/2005
d admission of the child victim's statement through the testimony of the executive director of the local Children's Assessment Center, a private organization, did not violate the defendant's right to confront his accuser in a trial for criminal sexual conduct. People v. Geno, 683 N.W.2d 687 (Mich. Ct. App. 2004). The statement did not constitute testimonial evidence, as it was not made to a government employee, and the child's answer to the question whether she had an "owie" was not a statement in the nature of ex parte in-court testimony or its functional equivalent. Id.
Courts have discussed the non-testimonial nature of various reports. The Court of Criminal Appeals of Alabama held an autopsy report showing the cause of death of a homicide victim was not testimonial. Perkins v. State, CR-02-1779, 2004 WL 923506 (Ala. Crim. App. 2004). The Supreme Court of New Mexico, in State v. Dedman, 102 P.3d 628 (N.M. 2004), declared a blood alcohol report showing the defendant's blood alcohol level at the time of the vehicle accident was non-testimonial for purposes of determining whether admission of the report, without testimony of the nurse who drew the blood sample, violated the defendant's Sixth Amendment right to confrontation in a prosecution for aggravated driving while under the influence of intoxicating drugs. The report was generated by State laboratory personnel, not law enforcement, and the report was not investigative or prosecutorial.
Co-conspirator statements have been found to be non-testimonial. See, e.g., United States v. Reyes, 362 F.3d 536 (8th Cir. 2004) (stating that Crawford does not apply to co-conspirator statements because they are non-testimonial). In United States v. Saget, 377 F.3d 223 (2d Cir. 2004), the Second Circuit Court of Appeals determined a co-conspirator's statements against the defendant to a confidential informant, whose true status was unknown to the co-conspirator, were not testimonial. Noting Crawford's specific caveat that it only pertains to testimonial statements, the court pointed out that the co-conspirator had no knowledge of the confidential informant's connection to investigators and believed that he was having a casual conversation with a friend and potential co-conspirator. Id. In fact, all circuits that have considered this issue with respect to co-conspirators have reached a similar conclusion. See, e.g., Horton v. Allen, 370 F.3d 75 (1st Cir. 2004); United States v. Lee, 374 F.3d 637 (8th Cir. 2004); People v. Cook, 815 N.E.2d 879 (Ill. App. Ct. 2004); Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L. Rev. 185 (2004); see also Williams v. SCI-Huntingdon, No. Civ.A. 02-CV-7693, 2004 WL 2203734, at *11 n.7 (E.D.Pa. Sept. 30, 2004) ("'an off-hand, overheard remark' to an acquaintance, such as . . . one made by co-conspirator . . ., is outside the scope of Crawford and thus does not violate the Confrontation Clause.").
Some courts have examined what encompasses "interrogation" within the meaning of Crawford. In Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), transfer granted (Dec. 9, 2004), the Court of Appeals of Indiana ruled that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not testimonial. The court observed that what constitutes a testimonial statement is the official and formal quality of such a statement. The court noted that Crawford chose not to say that any police questioning of a witness would make a statement in response thereto tes
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