State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee
¶24 We note that there is support for the proposition that the hallmark of testimonial statements is whether they are made at the request or suggestion of the police. See State v. Barnes, 854 A.2d 208, 211 ( Me. 2004). In our view, however, the Sixth Circuit’s decision in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), aptly describes why such an inquiry is insufficient under Crawford:
Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. . . . If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.
Id. at 675. Thus, we believe a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. That is, we do not agree with the State’s position that the government needs to be involved in the creation of the statement.  We believe such a narrow definition of testimonial could create situations where a declarant could nefariously incriminate a defendant.
 We note that recently in State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, the court of appeals held that a declarant’s spontaneous statement to responding police officers implicating the defendants in a crime was deemed nontestimonial. The court reasoned, in part as follows:
The statement made by [the declarant] in the instant case does not fall into any of the identified categories of “testimonial” statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. [The declarant] offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the [declarant’s] statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular subject.
Id., ¶11. We do not read Crawford in such a restrictive light. Under the definition of testimonial adopted today we must overrule Hemphill.
It simply isn’t possible to say precisely what implications flow from overruling Hemphill, though at minimum it would seemingly be that the mere unsolicited nature of a statement doesn’t throw it outside of confrontation analysis. The Hemphill methodology has certainly been invalidated, but the court doesn’t distinctly say that the result was therefore wrong. Hemphill, it should be noted, was an excited utterance case, 2005 WI App 248, ¶13; Jensen is not. Does this mean that Jensen has now declared all excited utterances to the police necessarily testimonial? Hard to see how, in light of Davis v. Washington. Also see State v. Ohlson, 168 P. 3d 1273 (Wn. 2007) (per se rule that excited utterance necessarily testimonial “is no longer tenable”). Rather, it probably just means that a court can’t avoid a threshold determination of whether the statement is testimonial merely because it is spontaneous. Note, as well, State v. Roberto Vargas Rodriguez, 2006 WI App 163, an excited utterance case which relied heavily on Hemphill and whose result therefore might have been thrown in doubt — except that on remand for reconsideration in light of Jensen the court “assume(d), without deciding, that the statements were testimonial,” but affirmed the result on the distinct ground of forfeiture, 2007 WI App 252, PFR denied 2/21/08.