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Confrontation – Hearsay: “Testimonial” Statement – “Spontaneous, Unsolicited Statements” to Police

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding: “(S)pontaneous, unsolicited statements offered to police officers immediately following the trauma of [declarant’s] cousin’s arrest at gunpoint” were not “testimonial” and therefore did not violate Crawford, ¶¶51-56:

¶53      Adams initiated the interaction with the officers; the police did not seek her out. She approached the police officers after they had arrested her cousin at gunpoint. Her statements to the police officers concerning her relationship to Searcy and Searcy’s residence were voluntarily made in the course of her attempting to prevent the police from taking her cousin into custody. She yelled at the officers, “[T]hat’s my cousin, you can’t do that,” and said that Searcy had been staying with her “from time to time.” Sorenson testified that when Adams approached them she was “excited.” There is no evidence in the record demonstrating that the statements were made in response to a tactically structured police interrogation, or in response to any questioning at all. Given the informal, unstructured nature of the interaction, Adams could not have reasonably anticipated that she was bearing witness and her utterances could impact future legal proceedings.

Clearly, the court relied on the volunteered nature of the statement to throw it outside of Crawford — do the subsequently decided Davis and Hammon shed any light on this problem? Not explicitly, for the simple reason that in both cases there was indeed “interrogation,” so that the Court didn’t have occasion to discuss “volunteered” statements. That aside, language in the holding suggesting that there must be “a tactically structured police interrogation” is at least arguably much too broad: see, e.g., this analysis by Richard Friedman (“the Court makes clear that if it continues to speak in terms of formality, the standard will be a very loose one. … [T]he Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial”). See footnote 1 of Hammon:

Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.

At the same time, Searcy‘s emphasis on the idea that Adams was “excited” can’t be meaningful, given Hammon‘s ruling that a statement admitted as an excited utterance did violate confrontation.It may be that Searcy is an outlier or perhaps just a case at the outer margins of what the Confrontation Clause countenances.


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