Hastings Constitutional Law Quarterly


In Davis v. Washington, the Supreme Court sought to clarify its Crawford v. Washington holding, which restored the Constitution's Confrontation Clause to its original procedural function-to test the reliability of testimonial witness statements "in the crucible of cross-examination." Under Davis, the testimonial/non-testimonial categorization of witness hearsay statements is based on the primary purpose for which those statements were made to law enforcement agents. Despite the Court's two-pronged standard, Davis left a gaping hole between the extreme ends of the testimonial/nontestimonial spectrum where witness statements have a mixed or dual purpose and the primary purpose is indiscernible.

This note proposes that when the primary purpose of a witness statement is indiscernible, the testimonial/non-testimonial determination should hinge on whether the witness provided his or her personal contact information to law enforcement agents. Providing personal contact information indicates a willingness to assist in future (almost certainly prosecutorial) proceedings related to the incident-yielding a testimonial statement under Davis. Refusing to provide contact information indicates a desire to assist solely in the immediate, ongoing emergency and unwillingness to assist in future prosecutorial attempts-resulting in a non-testimonial statement under the Davis framework. This proposed "primary intent test" provides certainty as well as predictability, and maintains balance in the criminal justice system by protecting the truly innocent and the innocent until proven guilty.