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Siler: Change of course for testimonial statements

The US Supreme Court's decision in 2004 in Crawford v. Washington probably was the most significant criminal case of the past decade.  The Court ruled there that, regardless of the hearsay rules, out-of-court statements could not be admitted if they were "testimonial."  Since Crawford was handed down, though, courts have struggled with the definition of exactly what constitutes a testimonial statement.  Last week, the Ohio Supreme Court ventured into that thicket again, in State v. Siler, and came to a substantially different conclusion from the first time they'd addressed the subject.

That first time was in last year's decision in State v. Stahl, which I discussed in detail back here.  The (very short) version is that the Court held that

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.

As I'd pointed out, there were obvious problems with that approach, and those problems were highlighted by last week's decision, State v. Siler.  The state relied on Stahl in arguing that the statements should be admitted, because the declarant -- in this case, a three-year-old boy -- didn't have a reasonable expectation that his statement would be used at trial.  (Largely because, no doubt, he had no idea in the world what a "trial" was.)  The Court rejected that argument, though, holding that statements are testimonial if the "primary purpose" of the interrogation was "to establish or prove past events potentially relevant to later criminal prosecution." 

The decision in Siler, especially given Stahl, raise some questions:

Is Stahl still good law?  Of course; Stahl isn't overruled, and the Court takes pains to distinguish it:  Stahl involved a statement to a nurse, while Siler involved a statement to police.  In fact, Justice Lanzinger, in her concurrence/dissent, seizes on that distinction as a way to reconcile the two cases:  if the statement is made to a police agent, then the "primary purpose" test is used, and if made to someone else, the "objective witness" test is employed.  Interestingly, Lanzinger dissented in Stahl; she would have found that the witness "objectively believed" that her statement to the nurse would be used at trial.

Whether this two-prong approach makes any sense is another matter.  A good argument could be made that Siler's language dictates that a contrary result should have been reached in Stahl:  That the primary purpose of the nurse's questioning was "to establish or prove past events potentially relevant to later criminal prosecution."  Although the majority in the latter case made much of the contention that the purpose of the nurse's questioning had been to provide medical treatment, that argument is undercut by the fact that (a) a police officer was in the room during the entire interrogation, (b) the form the witness signed specifically stated that the information would be used for the investigation and prosecution of the crime, and (c) no medical treatment was in fact provided.  Under those circumstances, it could easily have been concluded that the nurse was acting as an agent of the police and that the "primary purpose" should have been employed.

Is Siler limited to declarations by a child?  Although the 1st paragraph of the syllabus expressly refers to children, the 2nd paragraph states that "a declarant's age is not determinative of whether a testimonial statement has been made during a police interrogation."

Is Siler limited to statements made to police?  While, as noted, the opinion takes pains to emphasize that it was a police interrogation here, there's nothing in the opinion which expressly limits it to those situations.  In fact, the opinion cites numerous cases from other courts in which children's statements to police "agents" -- social workers, child abuse investigators, and even nurses -- were held to be testimonial.

At minimumit's going to be extremely difficult after Siler for the state to claim that a statement made to the police or their agents in a non-emergency situation isn't testimonial, and defense attorneys would be well-advised to emphasize Siler over Stahl in any case involving statements to someone other than the police agents.

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