State v. Mizenko

No. 04-488

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 11

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GREGORY MICHAEL MIZENKO,

Defendant and Appellant.

APPEAL FROM: The District Court of the Twelfth Judicial District,

In and For the County of Chouteau, Cause No. DC 2003-13,

Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Martin W. Judnich (argued), Missoula, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; John Paulson (argued),

Special Assistant Attorney General, Helena, Montana

Stephen A. Gannon, County Attorney, Fort Benton, Montana

For Amici Curiae:

Michael Donahoe, Bozeman, Montana (Criminal Defense Trial Lawyers)

Marty Lambert, Bozeman, Montana (County Attorneys Association)

Christine A. Mandiloff, Helena, Montana (Montana Coalition Against

Sexual and Domestic Violence)

Heard: April 15, 2005

Submitted: April 26, 2005

Decided: January 11, 2006

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

1

¶1 The jury convicted Gregory Mizenko (Mizenko) of his third offense of Partner or

Family Member Assault in violation of § 45-5-206, MCA. During trial, the District Court

admitted a number of hearsay statements from the victim, Mizenko’s wife, Debra. Mizenko

appeals. We affirm.

¶2 The issue is: Were Debra’s statements testimonial?1

BACKGROUND

¶3 The Chouteau County Attorney filed an information charging Mizenko with Partner

or Family Member Assault in violation of § 45-5-206, MCA. Dawn Grove, the Mizenkos’

neighbor, testified at trial that Debra was out of breath when she appeared at the Groves’

house late one afternoon. Debra had a wound on her cheek or jaw area. Grove testified that

Debra asked her to call 911 as well as a friend, Carol Richard. Grove called 911 and handed

the phone to Debra. Tami King answered the 911 call.

¶4 Although the State subpoenaed Debra, she failed to appear at trial. Grove testified

that Debra “said that her husband had been drinking and was trying to hurt her.” Seeking

clarification of Debra’s statement to her, the prosecutor asked Grove: “And you stated that

he had been drinking and had hurt her?” “Yes,” Grove replied.

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If testimonial, we would consider whether the State made a showing that Debra was

unavailable at trial and that Mizenko had an opportunity to cross-examine Debra at the time

she made the statements, as required to overcome a Sixth Amendment Confrontation Clause

objection.

2

¶5 Presumably relying on the excited utterance exception of Rule 803(2), M.R.Evid., the

District Court overruled an objection to the following testimony from King about her

conversation with Debra.

[Prosecution]: Do you recall what Mrs. Mizenko told you?

[King]: She said that Greg hit her, pushed her down and she had hair—he had

pullen [sic] out her hair.

[Prosecution]: Okay. Did she request law enforcement?

[King]: Yes. She wanted him arrested, is what she said.

Without objection from Mizenko, the court also allowed the prosecution to play the

audiotape of the 911 call for the jury. On the tape, Debra, breathing heavily and in a

cracking and wavering voice, states, “he hit me, pulled out my hair, knocked me down. I

tried so hard not to call [gasp], but umm, this is ridiculous. I can’t do this anymore.”

¶6 Officer Scott Buennemeyer testified that when he arrived at the Mizenko home, he

saw a bruise on Debra’s face. As he walked through the house, he saw pens and pencils and

dog food on the floor of the kitchen. He saw a lock of hair near the pet bowl in the kitchen

and another lock of hair on the floor in the living room. The District Court twice sustained

foundational objections to Buennemeyer’s testimony that the hair was Debra’s. Finally, the

prosecution asked Buennemeyer, “Did Debra Mizenko tell you where this hair came from?”

Overruling Mizenko’s hearsay objection, the District Court allowed Buennemeyer to answer.

He testified, “Yes, she did. She told me it was her hair, pulled from her head, during an

altercation at her residence, at that time and date.”

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¶7 After the State rested, Mizenko objected to the hearsay statements from Grove, King

and Buennemeyer, arguing that they denied him his right to confrontation. The District

Court ruled that Mizenko’s cross-examination of the witnesses who had contact with Debra

satisfied his Sixth Amendment right to confrontation. The jury found Mizenko guilty by a

unanimous verdict.

STANDARD OF REVIEW

¶8 We will review a district court’s evidentiary decision to determine whether it abused

its discretion. State v. Cameron, 2005 MT 32, ¶ 14, 326 Mont. 51, ¶ 14, 106 P.3d 1189,

¶ 14. There is no discretion, however, in properly interpreting the Sixth Amendment. See

Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424, 456-36, 121

S.Ct. 1678, 1685-86, 149 L.Ed.2d 674, 686-87 (indicating that de novo review is appropriate

when applying a constitutional standard or concept, not capable of precise articulation, to the

facts of a particular case); Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct. 1354,

1359, 158 L.Ed.2d 177, 187 (applying de novo review to the Washington Supreme Court’s

application of the Sixth Amendment, albeit without expressly articulating any standard of

review). We review a district court’s conclusions of law and interpretations of the

Constitution or the rules of evidence, de novo. State v Villanueva, 2005 MT 192, ¶ 9, 328

Mont. 135, ¶ 9, 118 P.3d 179, ¶ 9; State v. Mathis, 2003 MT 112, ¶ 8, 315 Mont. 178, ¶ 8,

68 P.3d 756, ¶ 8; see United States v. Blue Bird (8th Cir. 2004), 372 F.3d 989, 991.

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DISCUSSION

I. Crawford Changes the Landscape

¶9 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. Until recently, the Supreme Court

had allowed courts to admit hearsay when that evidence bore “adequate ‘indicia of

reliability.’” Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597,

608 (citation omitted). Further, “[r]eliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay exception” or if the evidence has

“particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539,

65 L.Ed.2d at 608. Thus, under Roberts, the rules of evidence subsumed any substantive

restrictions the Sixth Amendment had placed on admitting hearsay.

¶10 In 2004 the United States Supreme Court decided Crawford v. Washington (2004),

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, in which the Court dramatically bifurcated

hearsay law from the Confrontation Clause. The Confrontation Clause of the Sixth

Amendment allows courts to admit hearsay against criminal defendants in only two

instances: (1) if the hearsay is testimonial, the defendant must have had an opportunity to

cross-examine the declarant and the prosecution must show that the declarant is unavailable

to appear at trial, Crawford, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197; or (2) if

the hearsay is nontestimonial, the hearsay must bear adequate indicia of reliability or

particularized guarantees of trustworthiness. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374,

158 L.Ed.2d at 203. In Crawford, although the Supreme Court gave numerous examples, it

5

specifically declined to define what constitutes “testimonial” evidence. Crawford, 541 U.S.

at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. Mizenko’s case forces this Court to deal with

the definitional void left by Crawford.

II. Testimonial vs. Nontestimonial

¶11 Testimony is “‘[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.’” Crawford, 541 U.S. at 51, 71, 124 S.Ct. at 1364, 1375,

158 L.Ed.2d at 192, 205 (quoting 1 N. Webster, An American Dictionary of the English

Language (1828)) (emphasis added). However, “[h]earsay is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Rule 801(c), M.R.Evid. Debra’s statements to Grove, King,

and Buennemeyer are all clearly hearsay. As Crawford recognizes, though, whether the

statements are testimonial is a separate issue. Unfortunately, the facts of this case do not fit

neatly within Crawford’s examples of testimonial or nontestimonial.

¶12 Mizenko proffers that all hearsay is testimonial if it is (1) substantive and (2)

accusatorial. While appealing in its clarity and ease of application, this definition is overly

broad; it would require courts to exclude more evidence than the Sixth Amendment requires.

Specifically, the Supreme Court has decided that, although a statement may be substantively

accusatory, the Sixth Amendment would not exclude “[a]n off-hand, overheard remark,”

albeit accusatory, because such an off-hand remark “ bears little resemblance to the civil-law

abuses the Confrontation Clause targeted,” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158

L.Ed.2d at 192.

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¶13 In the cross-examination essential to the adversarial system, the defendant tests the

witness’s testimony in the most rigorous, demanding, and exacting test. Crawford, 541 U.S.

at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Through cross-examination, the defendant can

delve into the witness’s story and potentially reveal inherent flaws, inconsistencies, and

insidious motives. Indeed, John Henry Wigmore called cross-examination the “‘greatest

legal engine ever invented for the discovery of truth.’” California v. Green (1970), 399 U.S.

149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (quoting 5 John Henry Wigmore, A

Treatise on the Anglo-American System of Evidence in Trials at Common Law § 1367 (3d

ed. 1940)).

¶14 Contrary to the holding in Roberts that allowed courts to decide whether testimony

has “adequate indicia of reliability” or “particularized guarantees of trustworthiness,” 448

U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608, the Sixth Amendment itself defines the

indicia of reliability and guarantees of trustworthiness necessary to admit testimonial

evidence. The Sixth Amendment establishes confrontation through cross-examination as the

minimally adequate index of reliability and guarantee of trustworthiness. Crawford, 541

U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. (“It commands, not that evidence be

reliable, but that reliability be assessed in a particular manner: by testing in the crucible of

cross-examination.”)

¶15 Testimonial evidence requires a more demanding test of reliability than non-

testimonial evidence because the framers intended to protect the defendant from the evils

inherent in testimonial evidence. Through example, Crawford highlights one particular evil:

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“First, the principal evil at which the Confrontation Clause was directed was the civil-law

mode of criminal procedure, and particularly its use of ex parte examinations as evidence

against the accused.” Crawford, 541 U.S. at 50, 124 S.Ct. at 1363, 158 L.Ed.2d at 192.

Crawford elaborates on the two concerns engendered by this evidence. The first is the

concern with possible prosecutorial misconduct and overzealousness:

The Framers would be astounded to learn that ex parte testimony could be

admitted against a criminal defendant because it was elicited by “neutral”

government officers. But even if the court’s assessment of the officer’s

motives was accurate, it says nothing about Sylvia’s perception of her

situation. Only cross-examination could reveal that.

Crawford, 541 U.S. at 66, 124 S.Ct. at 1373, 158 L.Ed.2d at 202. In identifying the possible

purposes behind the protections afforded by the Confrontation Clause, Professor Mosteller

notes that this concern may manifest in either of two ways: “government[al] manipulation

of the witness in creating the evidence-manipulating the words uttered”; or “governmental

manipulation of the recording of the statement rather than manipulation of what was said.”

Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation

of Witnesses, 39 U. Rich. L. Rev. 511, 569-70 (2005).

¶16 The second concern is with the declarant’s opportunity to abuse the criminal justice

system in order to punish, to exact revenge on, or to shift the blame to the defendant.2 The

trial of Sir Walter Raleigh, as quoted in Crawford, illustrates this danger:

2

Professor Mosteller similarly identifies the other possible purpose of the

Confrontation Clause as “protect[ing] the defendant from malicious falsehoods or even errors

by the witness independent of governmental manipulation.” Mosteller, 39 U. Rich. L. Rev.

at 571.

8

Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an

examination before the Privy Council and in a letter. At Raleigh’s trial, these

were read to the jury. Raleigh argued that Cobham had lied to save himself:

“Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by

accusing me he may hope for favour.”

Crawford, 541 U.S. at 44, 124 S.Ct. at 1360, 158 L.Ed.2d at 188 (quoting 1 D. Jardine,

Criminal Trials 435 (1832)). As the Sixth Circuit has noted, cross-examination is essential

to expose possible bias or motive of the declarant:

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.

United States v. Cromer (6th Cir. 2004), 389 F.3d 662, 675.

¶17 Crawford characterizes “a casual remark to an acquaintance” as nontestimonial.

Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. The word “casual,” rather

than modifying the setting in which the declarant made the statement, modifies the

declarant’s assumption as to what use, if any, the listener might make of the statement. When

an objective declarant would reasonably expect the state to use her statements at trial, the

Sixth Amendment demands that courts exclude such statements absent an opportunity for

confrontation. United States v. Saget (2nd Cir. 2004), 377 F.3d 223, 228-29; Horton v. Allen

(1st Cir. 2004), 370 F.3d 75, 84.

¶18 When speaking to government agents or officials, the circumstances are such that a

declarant should reasonably expect that the government will seek to use those statements at

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trial. Whereas when a declarant speaks with her neighbor across the backyard fence, she has

much less of an expectation that the government will make prosecutorial use of those

statements. Any situation in which the declarant is knowingly speaking to the police or

government agents implicates concerns both with the declarant’s motivation and with the

possibility of prosecutorial misconduct. The declarant expects and understands that the

government may use her statements at trial, and the police may deliberately or inadvertently

color the substance of their statements to reflect their own prejudices and understandings of

the situation, or may selectively record the declarant’s statements.

¶19 Likewise, when the declarant signs an affidavit or gives a recorded statement, the

declarant expects that the state will seek to make use of those statements. See White v.

Illinois (1992), 502 U.S. 346, 365, 112 S.Ct. 736, 747, 116 L.Ed.2d 848, 865 (Thomas, J.,

joined by Scalia, J., concurring in part and concurring in the judgment). Although the

government may not be directly involved in obtaining recorded or sworn testimony, a

declarant who provides such testimony clearly anticipates that the state may use the

statements against an accused. See White, 502 U.S. at 365, 112 S.Ct. at 747, 116 L.Ed.2d at

865 (“extrajudicial statements . . . contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions,” implicate the Confrontation Clause)

(Thomas, J., joined by Scalia, J., concurring in part and concurring in the judgment) (quoted

in Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193 (ellipses in

quotation)); see also Richard D. Friedman, The Confrontation Clause Re-Rooted and

Transformed, 2004 Cato Sup. Ct. Rev. 439, 458 (“Thus, if just before trial a person shoved

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a written statement under the courthouse door, asserting that the accused did in fact commit

the crime, that would plainly be testimonial even though no government official played a role

in preparing the statement.”).

¶20 A declarant who is alerting law enforcement of imminent and immediate danger has

much less of an expectation that the state will seek to make prosecutorial use of her

statements at trial. United States v. Brun (8th Cir. 2005), 416 F.3d 703 (911 call from

adolescent boy regarding an argument escalating into an assault); see People v. Moscat (N.Y.

Crim. Ct. 2004), 3 Misc.3d 739, 746 (deciding that a 911 call “is the electronically

augmented equivalent of a loud cry for help”); Leavitt v. Arave (9th Cir. 2004), 383 F.3d 809,

830 n.22 (determining that statements to police by a victim of an attempted break-in

identifying the perpetrator are nontestimonial because they were volunteered in order to end

“a frightening intrusion into her home”); People v. Coleman (N.Y. App. Div. 2005), 16

A.D.3d 254, 255 (“[t]he information conveyed by the 911 caller was for the purpose of

urgently seeking police intervention”; “we note that the caller repeatedly emphasized that one

or both of the victims was ‘bleeding real bad.’ This indicates that his primary motivation

was to call for urgent assistance, and not to phone in an anonymous accusation”). Whether

a reasonable declarant would expect statements made during a call to 911 to be used

prosecutorially will depend on the content of the conversation and the particular

circumstances that led to the call being placed.

¶21 We do not assume that a declarant speaking to her neighbor across the backyard fence

reasonably expects that the government will seek to use her statements as testimony. For

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most people, none of their “casual” remarks ever surface in court. Seldom do people make

such “casual remark[s],” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192,

with “any anticipation by the speaker that the statement will be conveyed beyond the

immediate audience, let alone that it will be used at trial,” Mosteller, 39 U. Rich. L. Rev. at

573. In United States v. Franklin (6th Cir. 2005), 415 F.3d 537, the court held that where a

declarant Clarke’s statements were to a friend, Wright, they were nontestimonial. “Clarke

made the statements to his friend by happenstance; Wright was not a police officer or a

government informant seeking to elicit the statements to further a prosecution against Clarke

or Frankin. To the contrary, Wright was privy to Clarke’s statements only as his friend and

confidant.” Franklin, 415 F.3d at 545; United States v. Gibson (6th Cir. 2005), 409 F.3d 325,

338 (describing statements as nontestimonial where the “statements were not made to the

police or in the course of an official investigation . . . [nor in an attempt] to curry favor or

shift the blame”); United States v. Manfre (8th Cir. 2004), 368 F.3d 832, 838 n.1 (“Mr.

Rush’s comments were made to loved ones or acquaintances and are not the kind of

memorialized, judicial-process-created evidence of which Crawford speaks”); United States

v. Lee (8th Cir. 2004), 374 F.3d 637, 645 (“Kehoe’s statements to his mother do not

implicate the core concerns of the confrontation clause”). Likewise, many state courts have

been less apt to conclude that statements made to personal acquaintances are testimonial.

See, e.g., People v. Cervantes (Cal. Ct. App. 2004), 12 Cal.Rptr.3d 774, 777, 782-83

(deciding that statements made to a neighbor from whom the declarant sought medical

assistance, which described a murder and implicated the declarant and others, were not

12

testimonial under any of the formulations provided in Crawford); State v. Rivera (Conn.

2004), 844 A.2d 191, 201-02 (determining that a statement made to the declarant’s nephew

describing a botched robbery-turned-murder undertaken by the declarant and an accomplice

was nontestimonial); Demons v. State (Ga. 2004), 595 S.E.2d 76, 78-80 (holding that a

statement made to the declarant’s co-worker indicating that the declarant’s bruises came from

beatings inflicted by his domestic partner whom he feared would kill him was

nontestimonial).

¶22 In State v. Carter, 2005 MT 87, 326 Mont. 427, 114 P.3d 1001, we held that the

weekly field certification reports that the state introduced to show that the Intoxilizer 5000

was functioning properly when it was administered by the police, were nontestimonial. We

reasoned that the reports were “not substantive evidence of a particular offense, but rather

are foundational evidence necessary for the admission of substantive evidence. In other

words, the certification reports are nontestimonial in nature in that they are foundational,

rather than substantive or accusatory.” Carter, ¶ 32 (internal citation omitted). The Sixth

Amendment, itself, extends only to “witnesses against” the defendant, and hearsay provided

for foundational purposes is not evidence “against” the defendant. Thus, while the author of

the certification reports could reasonably anticipate that the reports would be used in or by

a court, those reports, because “not substantive evidence of a particular offense,” were held

to be nontestimonial. See Crawford, 541 U.S. at 56, 124 S.Ct. at 1367, 158 L.Ed.2d at 195-

96 (business records are nontestimonial); United States v. Cervantes-Flores (9th Cir. 2005),

13

421 F.3d 825, 831-34 (immigration records nontestimonial); United States v. Garner (6th

Cir. 2005), 2005 WL 2175907 (unpublished) (medical records nontestimonial).

¶23 Bringing together these rationales, generally, when a declarant knowingly speaks to

a police officer or governmental agent, her statements are presumed testimonial. If, however,

the declarant had objective reason to believe that her statement would serve only to avert or

mitigate an imminent or immediate danger and the agent who received the statement had no

intent to create evidence, the statement is presumed to be nontestimonial. Alternatively,

unless the declarant had clear reason to believe that the statement would be used in court as

substantive evidence against the defendant, her statements to a non-governmental agent are

nontestimonial.3

III. Debra Mizenko’s Statements at Issue

¶24 Mizenko’s appeal presents three instances of statements by Debra Mizenko, who did

not appear at trial and whom Mizenko was unable to cross-examine: (1) Debra’s statements

to her neighbor Dawn Grove, (2) Debra’s statements to 911 dispatcher Tami King, and (3)

Debra’s statements to Deputy Buennemeyer.

3

We note that this approach, in addition to being relatively easy to apply,

approximates that proposed by Professor Mosteller, whereby different burdens apply

depending on whom the declarant speaks to: the defendant must show that a statement made

to a private individual was clearly or exclusively intended to be testimonial; or the

prosecution must show that a statement made to a government agent was intended by the

declarant only for a non-testimonial purpose and that the government agent who received the

statement was not producing a statement to be used prosecutorially. See Mosteller, 39 U.

Rich. L. Rev. at 572, 624. We favor an “objective reason to believe” standard over Professor

Mosteller’s proposed “declarant’s intent” standard because of the practical difficulty of

divining the intentions of an absent declarant except by reference to what they have reason

to believe (i.e., what they should reasonably expect).

14

¶25 Mizenko argues that the court erred in allowing Dawn Grove to testify that Debra told

her that Mizenko had been drinking and was trying to hurt her; in allowing the police

dispatcher Tami King to testify as to the contents of the 911 tape, in particular that Mizenko

had pushed Debra down, hit her and pulled her hair out; and in allowing Deputy

Buennemeyer to testify that Debra told him that the hair on the floor was hers and had been

pulled out during the altercation with Mizenko.

¶26 In discussing these issues, it must be noted that the State, through witness King,

offered the 911 taped conversation as evidence. Since King stated that she had not listened

to the tape and could not verify its accuracy, Mizenko objected for lack of foundation. The

court sustained the objection. During a break, King listened to the tape and was subsequently

able to testify that it was an accurate representation of the conversation. The tape was then

admitted without objection and was played for the jury. During the taped conversation,

Debra told King that Mizenko had hit her, pushed her down, and pulled out her hair. Since

Debra’s taped statements that Mizenko had pulled out her hair were admitted without

objection, King’s and Buennemeyer’s testimony concerning the hair pulling, even if

objectionable, was cumulative and, thus, harmless error. State v. Van Kirk, 2001 MT 184,

¶ 43, 306 Mont. 215, ¶ 43, 32 P.3d 735, ¶ 43. Likewise, King’s statements that Mizenko had

pushed Debra down and hit her constitute harmless error, at most.

¶27 As to witness Dawn Grove, she was Debra’s neighbor. Debra appeared at Dawn’s

house late one afternoon, out of breath and bruised on the cheek. She was seeking assistance

after having been beaten by her husband. Given that she was in distress and addressing a

15

non-governmental agent, her neighbor, she had no objective reason to believe or anticipate

that her statement would be used in court. See Mosteller, 39 U. Rich. L. Rev. at 573

(indicating that “most private statements, even if accusatory, are not candidates for being

considered testimonial”). The most reasonable construction of Debra’s statement to Grove

is that Debra merely endeavored to provide Grove with a context that would explain Debra’s

sudden appearance, with dog in tow and a freshly bruised face, on her neighbor’s doorstep.

Her utterance also enabled Debra to share the burden of a traumatic beating, a need

evidenced by the fact that she sought the immediate solace that her neighbor could provide

as well as her desire to phone her friend Carol Richard. To the extent that the statement can

be construed in any other manner, it is fairly characterized as primarily a cry for help. Debra,

having fled her own home where her husband had just beaten her, sought sanctuary from

which to take her next step. Significantly, Debra apparently did not feel sufficiently secure

in her own home to remain there and phone either her friend Carol Richard or 911. In light

of the abuse she suffered and the very real possibility that Mizenko would return and

continue the assault, her fear of remaining in her home was well founded. Debra’s cursory

explanation of the circumstances that prompted her to request Grove’s assistance, though

evidence, were not created by the judicial process. Debra lacked reason to believe that her

statement would be used prosecutorially as substantive evidence against Mizenko. If she had

anticipated such use, in all likelihood, she would have divulged greater detail, as she later did

when speaking with 911 operator King, and indicated that her husband had in fact hurt her,

not merely that he was trying to hurt her. Accordingly, her statement to Grove was

16

nontestimonial and the admission of Dawn Grove’s hearsay testimony did not offend the

confrontation clause.

¶28 Ruling on the admissibility of statements made in a remarkably similar situation, the

Colorado Supreme Court recently rendered a decision that mirrors our conclusion that

Debra’s statement to Grove was not testimonial. In Compan v. People (Colo. 2005), 121

P.3d 876, the Colorado Court unanimously4 affirmed the admission of hearsay statements

made by a woman shortly after suffering abuse at the hands of her husband and describing

that abuse in detail. During a heated argument with her husband, the victim, while crying,

had called her friend Vargas and asked her to come pick her up. Compan, 121 P.3d at 877.

About twenty minutes later, the victim, now “subdued, very quiet and sad” again called

Vargas, reported that her husband had already hit her, and again requested a ride. Compan,

121 P.3d at 877. Another fifteen minutes elapsed before Vargas arrived to whisk the victim

away to the secure environs of Vargas’s home. During the ride, the victim, who was biting

her nails, shaking and crying, explained that her husband had kicked and punched her

stomach, “slapped her, pulled her hair, and thr[own] her against a wall.” Compan, 121 P.3d

at 878. When they arrived at Vargas’s house, the victim continued recounting the assault and

eventually asked Vargas to call the police. The victim did not testify at trial.5 Compan, 121

Justices Coats and Kourlis specially concurred, but they agreed, without further

4

elaboration, that the victim’s statements were not testimonial. Compan, 121 P.3d at 886.

5

Incidentally, the victim had made an appointment with the district attorney to

formally recant her accusation, but did not show up for the appointment. Compan, 121 P.3d

at 878.

17

P.3d at 878. The Colorado Court considered each of the three formulations of “testimonial”

postulated by the Crawford Court and unanimously concluded that the victim’s excited

utterances to Vargas did not fall within any of them. See Compan, 121 P.3d at 880-81 (“the

victim’s statements were not made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial.

Rather, the victim was speaking informally to her friend”); see also Mosteller, 39 U. Rich.

L. Rev. at 544 (indicating that under his proposed method for ascertaining whether a

statement is testimonial, “the statements in Compan and similar fact patterns would not be

considered testimonial”). Furthermore, the Colorado Court concluded that “the

constitutionality of nontestimonial statements is controlled by the federal confrontation

clause as set forth in Roberts.” Compan, 121 P.3d at 881 (citing a litany of cases from

federal circuit courts and state supreme courts that have reached the same conclusion).

¶29 As to the dissent, Justice Nelson is jousting with windmills of his own making. He

relies on Article II, Section 24 of the Montana Constitution, a theory which he admits was

not argued by the defendant, and he focuses on the testimony of 911 operator King and

Officer Buennemeyer without acknowledging that their testimony, if objectionable, was

cumulative since the 911 tape itself was admitted without objection.6 The dissent proffers

6

Arguably, Grove’s testimony was also cumulative insofar as it asserts any

wrongdoing by Mizenko. Debra told Grove only that he husband had been drinking and was

trying to hurt her. The 911 recording, however, includes statements that Mizenko had hit

Debra, pulled out her hair and pushed her to the ground. Certainly, such acts constitute

attempts to hurt Debra. Accordingly, the only additional statement to Grove is that Mizenko

had been drinking—no crime for a person such as Mizenko who has obtained the age of

majority.

18

a tortured interpretation of this opinion by insinuating that the Court’s definition of

“testimonial” encompasses only statements made to government agents. Contrary to the

dissent’s mischaracterization, the Court has afforded the defendant greater protection from

statements made to a government agent, by presuming that such statements are testimonial.7

Although the Supreme Court identified three of the “[v]arious formulations of . . .

‘testimonial’ statements [that] exist,” it explicitly “[left] for another day any effort to spell

out a comprehensive definition of ‘testimonial.’” Crawford, 541 U.S. at 51, 68, 124 S.Ct. at

1364, 1374, 157 L.Ed.2d at 193, 203 (emphasis added). Justice Nelson’s painstaking efforts

in “formulating” a comprehensive definition of “testimonial” has led him to simply adopt the

formulation proffered to the Court by the National Association of Criminal Defense

Lawyers—the broadest of the extant formulations acknowledged by Crawford—despite the

Court’s tacit warning against doing so. Finally, Justice Nelson quotes from the Victim

Impact Statement submitted by Debra after Mizenko had been tried and convicted. This

statement, however, was not submitted until after trial, and has no evidentiary value as to the

propriety of admitting Debra’s various statements, nor as to Mizenko’s guilt. Moreover, the

Victim Impact Statement, though rhetorically resonant, suffers from the flaws that Justice

Nelson decries in the hearsay testimony that was admitted—lack of oath, inability to cross-

The dissent likewise mischaracterizes our method for determining whether a

7

statement is testimonial as “a belief/knowledge/purpose” test. While we do identify the

declarant’s potentially suspect motivation as being of concern to the drafters of the Sixth

Amendment, we have announced a test that depends on the declarant’s reasonable

expectation at the time a statement is made.

19

examine and inability to assess credibility—provides Debra ample opportunity for reflection

and fabrication, and represents a premeditated, conscientious attempt to provide testimony.

¶30 Many state courts have considered whether a statement made by the victim of a crime

to a friend, family member or acquaintance and describing the crime, identifying the

perpetrator or both, is testimonial. Despite Justice Nelson’s disagreement, extant authority

supports the Court’s position that such statements, even if made to a loose acquaintance, are

nontestimonial unless the declarant had clear reason to believe that they will be used

prosecutorially. See, e.g., Salt Lake City v. Williams (Utah Ct. App. 2005), __ P.3d ___,

2005 UT App 493, ¶ 24 (statements by the deceased victim to a friend identifying the

perpetrator by name and indicating that he had threatened to kill her held nontestimonial

because they were issued “with no reasonable expectation that it would be used in a later

legal proceeding”); State v. Kemp (Mo. Ct. App. 2005), __ S.W.3d ___, 2005 WL 2977790

at *4 (statements by the victim to her neighbor, whose home she had gone to in seeking

assistance, that her boyfriend had been holding her hostage at gunpoint held nontestimonial

“[e]ven under the broadest reading of Crawford”); Wallace v. State (Ind. Ct. App. 2005), 836

N.E.2d 985, 996 (statements by murder victim identifying his killer in response to questions

posed by an unknown civilian, EMT, and a nurse held nontestimonial because not taken “‘in

significant part . . . with an eye towards trial’” (citation omitted)); Bray v. Commonwealth

(Ky. 2005) __ S.W.3d ___, 2005 WL 2317014 at *3 (statements by murder victim to her

sister indicating that she was afraid for her life and that defendant was outside of her home

held nontestimonial even under Crawford’s third and broadest formulation); Foley v. State

20

(Miss. 2005), 914 So.2d 677, ¶ 11 (statements by sexual assault victim to examining

physician indicating that defendant forced her to perform oral sex and other sexual acts held

nontestimonial); Commonwealth v. Gonsalves (Mass. 2005), 833 N.E.2d 549, 559-62 (assault

victim’s response to questioning by her mother stating that her boyfriend had constricted her

breathing and hit her held nontestimonial; a reasonable person in the victim’s position would

not “anticipate the statement’s being used [prosecutorially]”; the mother’s purpose for

procuring the statements “was to understand what had happened, not to establish a basis for

prosecution”); Flores v. State (Tex. Ct. App. 2005), 170 S.W.3d 722 (statements by infant

victim’s mother to defendant’s sister indicating that defendant had hit their infant held

nontestimonial; statements were made within hours after the child had died); State v. Krasky

(Minn. Ct. App. 2005), 696 N.W.2d 816, 819-20 (statements made by victim of sexual

assault to a nurse practitioner describing the assault held nontestimonial under the “third and

broadest formulation” provided in Crawford because “the examination was conducted, at

least in part, for the purpose of medical diagnosis”); People v. Rincon (Cal. Ct. App. 2005),

28 Cal.Rptr.3d 844, 858 (statements by victim to former gang-member indicating that he had

been shot in the ankle during a gun battle at a particular location held nontestimonial because

the victim “could not reasonably have anticipated” prosecutorial use of his statements); State

v. Wilkinson (Vt. 2005), 879 A.2d 445, ¶ 10 (statements by victim to defendant’s cousin

indicating that defendant had pulled a gun on him and that he thought the defendant was

going to kill him held nontestimonial; statements were “made to an individual who had no

relationship to the prosecution” and not in the presence of police); Herrera-Vega v. State

21

(Fla. Dist. Ct. App. 2004), 888 So.2d 66 (statement by victim to her parents describing how

defendant sexually abused her held nontestimonial); State v. Staten (S.C. Ct. App. 2005), 610

S.E.2d 823, 836 (statements by murder victim, made a day prior to his murder, to his cousin

indicating that the defendant had pulled a gun on him held nontestimonial under any of

Crawford’s formulations); State v. Blackstock (N.C. Ct. App. 2004), 598 S.E.2d 412, 420

(statements by hospitalized murder victim made to his daughter and wife before he died,

describing in detail the armed robbery that culminated with the victim’s being shot, held

nontestimonial because “it is unlikely that [the victim] made the statements under a

reasonable belief that they would later be used prosecutorially”); State v. Walker (Wash. Ct.

App. 2005), 118 P.3d 935, ¶¶ 34-35 (statements by victim of sexual assault describing the

incident, identifying the perpetrator and given in response to questioning by her mother held

nontestimonial; “the exchange between [mother] and [daughter] was that of a conversation

between a concerned parent and an upset child, nothing more”); State v. Moses (Wash. Ct.

App. 2005), 119 P.3d 906, ¶ 22 (statements by victim of domestic abuse made to a treating

physician and describing the beating and identifying the perpetrator held nontestimonial

because victim did not have “reason to believe that her statements to Dr. Appleton would be

used at a subsequent trial”). After an exhaustive review of cases applying Crawford, we

could find only two instances when a court held that a victim’s statement to a private

individual is testimonial. See In re E.H. (Ill. Ct. App. 2005), 823 N.E.2d 1029, 1037

(statements, made by child victim of sexual assault to her grandmother, describing the sexual

abuse perpetrated by defendant held testimonial because the statements concern “the fault

22

and identity” of the perpetrator); In re T.T. (Ill. Ct. App. 2004), 815 N.E.2d 789, 804

(statements made by victim of sexual assault to a treating physician that explain how she was

physically injured and the pain she experienced held nontestimonial; however, her statements

identifying the defendant as the perpetrator held testimonial).

¶31 The dissent, in arguing that Crawford has eradicated the excited utterance exception

to hearsay in criminal cases, paints with too broad a brush. Although Crawford does

disallow the use of hearsay exceptions based on indicia of reliability as the basis to admit

hearsay statements, it does so only in the context of testimonial statements which violate the

Sixth Amendment right to confront witnesses. Crawford does not expressly or impliedly

supersede the rules of evidence as they relate to nontestimonial evidence. See Crawford, 541

U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203 (“[w]here nontestimonial hearsay is at

issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their

development of hearsay law—as does Roberts, and as would an approach that exempted such

statements from Confrontation Clause scrutiny altogether”). In the wake of Crawford,

nontestimonial hearsay is analyzed pursuant to the Roberts reliability standard, or simply to

ensure compliance with the rules of evidence. See Mosteller, 39 U. Rich. L. Rev. at 617, 619

(“[p]resently, lower courts should still apply the ‘old system’ to non-testimonial hearsay

because Crawford did not overrule Roberts in this area”); see also Agostini v. Felton (1997),

521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.E.2d 391, 423 (quoting Rodriguez de Quijas v.

Shearson/Am. Express, Inc. (1989), 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.E.2d

526) (“‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on

23

reasons rejected in some other line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of overruling its own

decisions’”). Rather than divine the dramatic and unexpressed implications of Crawford, we

will afford the Supreme Court the first opportunity to expressly overrule Roberts and to

invalidate the Federal Rules of Evidence pertaining to hearsay in criminal cases, as is their

express preference.

¶32 As the Sixth Circuit has recognized, Crawford dealt only with testimonial statements

and did not disturb the rule that nontestimonial statements are constitutionally admissible if

they fit within a firmly rooted hearsay exception or they bear independent guarantees of

trustworthiness. Gibson, 409 F.3d at 338.

¶33 We thus turn to the question of whether Debra’s statement fits within a firmly rooted

exception to the hearsay rule. Rule 803, M.R.Evid. (Availability of declarant immaterial),

enumerates the exceptions to the hearsay rule in Montana. Subsection 2 of the Rule sets

forth the “excited utterance” exception. In Matter of S.M., 2001 MT 11, 304 Mont. 102, 19

P.3d 213, a child had seen her mother’s abusive boyfriend outside of a building and

subsequently told a social worker that she was frightened. Matter of S.M., ¶ 19. We found

that the social worker’s testimony relaying the child’s statement was properly admitted as

an excited utterance relating to the startling event of seeing her abuser. Matter of S.M., ¶ 24.

We noted that the social worker observed the child tightly grasping her foster mother’s arm

“with a very frightened look in her eyes.” Matter of S.M., ¶ 20. Presumably, we relied on

this observation of the child’s appearance to support our unstated conclusion that the child

24

remained “under the stress of excitement” when she expressed her fear. In State v. Hamby,

1999 MT 319, 297 Mont. 274, 992 P.2d 1266, we concluded that hearsay statements were

properly admitted under the excited utterance exception because “[t]he record does not

suggest that [the victim’s] distress subsided once Betty asked her questions, even when they

were in the bathroom.” Hamby, ¶ 29; see also State v. Graves (1995), 272 Mont. 451, 454,

458-59, 901 P.2d 549, 551, 554-55 (indicating that a rape victim’s statements to an

anonymous 911 caller made “shortly after defendant left” her home and while she was still

crying qualified as an excited utterance); State v. Cameron, 2005 MT 32, 326 Mont. 51, 106

P.3d 1189 (holding that a victim’s sobbing statement to her sister related to a sexual assault

that had occurred one or two hours earlier was an excited utterance under Rule 803(2),

M.R.Evid.). It is clear from the cases cited above that a declarant’s appearance and

demeanor can indicate that the declarant remains under the stress of excitement caused by

a startling event and a lapse of time is not determinative of whether that stress has subsided.

¶34 In the present case, Debra’s statements to Grove were made a short time after the

assault while she was out of breath, visibly upset and had a fresh wound on her face. Since

Debra’s statements, made while she was still under stress caused by the event, clearly fall

within the firmly rooted excited utterance exception to hearsay under Rule 803(2),

M.R.Evid., the court did not err in admitting them.

¶35 Affirmed.

/S/ W. WILLIAM LEAPHART

25

We concur:

/S/ KARLA M. GRAY

/S/ JOHN WARNER

/S/ BRIAN MORRIS

/S/ JIM RICE

26

Justice John Warner concurs.

¶36 Although I concur in the Court’s opinion, I wish to further address several issues.

I present the following scenario:

Mary Smith: Mr. Jones, I’m calling because I was just served with a subpoena.

Am I supposed to testify against my husband in the spousal abuse

trial?

Prosecutor Jones: Yes, that’s right Mary. The trial starts Monday morning at 8:00 a.m.

at the courthouse. I’ll be asking you to tell the jury how Harry beat

you last October when he came home drunk from the football game.

Mary Smith: Look. I’ve been thinking it over, and I’ve decided I don’t want to

testify. Harry told me that he’s not going to prison because of me.

Then, last night Harry and a couple of his friends got me alone and

told me that if I testify one of them will break my legs. They also

said that if I even show up at the courthouse they will take my

daughter and she won’t be worth much when she comes back. I

know these guys, and I believe them - they’ll do it. I’m scared. I’m

not coming to testify and I just thought I’d let you know so you can

call off the trial.

Prosecutor Jones: I can’t do that Mary. This is Harry’s third spousal abuse offense.

We’re going to prosecute. You’ve got a subpoena and you’re

required to be there. It’s a court order and you can be held in

contempt if you don’t show up.

Mary Smith: I’m telling you I’m not going to testify. I don’t particularly care

about some stupid court order. I won’t be there, so forget the whole

thing.

Prosecutor Jones: But Mary, without your testimony we can’t convict Harry. Our State

Supreme Court has told us that we need your testimony. We cannot

use your statements to your neighbor Ginny after the fight, and we

can’t use your statements when you called 911. For sure we can’t

have Officer Brown testify about what you told him when he got

there, and the ER doctor can’t testify about what you told him either.

I can’t even prove to the Court that Harry and his friends really

27

threatened you unless you show up. You’ve got to come, we can

protect you; and if you don’t come I’ll have to have you arrested.

Mary Smith: Harry told me that’s what you would say. But, he’s right that you

can’t protect me 24 hours a day for years, and I’m not going to let

Harry’s friends at my daughter. I’m out of town now, you’ll never

find me, and I don’t care what you threaten me with - I’m not

coming. Bye. [Click.]

¶37 This colloquy is, of course, the counter-point to the thoughtful dissent with which I

must disagree.1 The dissent’s historical analysis of the right of a defendant in a criminal

case is instructive, and points to problems that must be faced in modern criminal

prosecutions. In my view, however, it ignores the interests of the victim; takes too

cynical, and dangerous, of an approach to our system of criminal justice; and

misinterprets Crawford.

¶38 The dissent fails to give sufficient consideration to the interests of witnesses and

victims. The Court recognizes the critical importance of the Confrontation Clause.

However, as the dialogue I have presented above illustrates, an accused must not be

allowed to hide behind the Constitution by intimidating witnesses. It would be naive to

assume that defendants would not do so, if given the opportunity. It takes little

imagination to picture the jungle of fear that would be created if the rationale that is

1

The foregoing dialogue is not fanciful. Some research has shown that approximately

80% of victims decline to assist the government in prosecutions of domestic violence cases.

Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 768-769 (2005)

(“The reasons why victims refuse to cooperate with the prosecution are manifold, but chief

among them is the risk of reprisals by the batterers. One study found that batterers threaten

retaliatory violence in as many as half of all cases, and 30 percent of batterers actually assault

their victims again during the predisposition phase of prosecution.”).

28

proposed by the dissent is adopted. In my view it would become intolerably more

dangerous to be the victim of an offense, or to be a witness in any criminal case, if the

Confrontation Clause is interpreted to mean that prosecutions cannot be maintained if

witnesses, for whatever reason, do not appear at trial, which is what the dissent seems to

advocate.2 See Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747,

750 (2005) (65% of prosecutors surveyed in California, Oregon, and Washington

“reported that victims of domestic violence are less safe in their jurisdictions than during

the era preceding the Crawford decision.”).

¶39 I also disagree with the dissent’s premise that government officers will run amok

in their zeal to unfairly obtain convictions. In our justice system, prosecuting attorneys,

and impliedly all law enforcement personnel, occupy a position of public trust. Courts,

citizens and even criminal defendants must rely on these public servants to be honorable

advocates both for the community on whose behalf they litigate and for the justice system

of which they are an integral part.

2

As a potential safeguard the Crawford majority noted the rule of forfeiture by

wrongdoing. Crawford, 541 U.S. at 62, 124 S.Ct. at 1370, 158 L.Ed. at 199. This was

codified in FRE 804(b)(6), which admits hearsay “offered against a party that has engaged

or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the

witness.” Application of Rule 804(b)(6) is complicated. See U.S. v. Dhinsa (2nd Cir. 2001),

243 F.3d 635, 653-654. It has been adopted by only a few states, and has not been adopted

in Montana. However, because Crawford has heightened the importance of live testimony,

and therefore increased the probability that the accused will threaten potential witnesses,

FRE 804(b)(6) may now see increased application in the federal courts, with respect to

testimonial hearsay. Lininger, 91 Va. L. Rev. at 808-810.

29

¶40 It cannot be gainsaid that it is possible for unscrupulous prosecutors or other

government officials to cheat, connive, and abuse the system to unfairly obtain a

conviction. Indeed, it was the intent of the Framers to limit the discretion of these

individuals. See Crawford, 541 U.S. at 67, 124 S.Ct. at 1373, 158 L.Ed. at 202-203.

However, I do not presume, as the dissent seems to, that prosecutors inevitably abuse

their offices, violate their oaths to uphold the Constitution, and connive to manufacture

evidence so that a complaining witness need not appear at trial. Such general accusations

undermine public confidence and bring into question our entire system of justice. There

are implicit checks on prosecutors and government officials imposed by the elective

system, the legislature, the bar, and the courts. Such is evident in this Court’s decision

today, providing protection for defendants against testimonial hearsay.

¶41 It is clear that only those out of court statements that are testimonial in nature are

the “primary objective” of the Confrontation Clause. Crawford, 541 U.S. at 53, 124 S.Ct.

at 1365, 158 L.Ed. at 194. Until the Supreme Court expressly rules otherwise, we should

continue to apply the precedent left in place. Robert P. Mosteller, Crawford v.

Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.

Rev. 511, 619 (2005) (“lower courts should still apply the ‘old system’ to non-testimonial

hearsay because Crawford did not overrule Roberts in this area.”). As Professor

Friedman, whose scholarly work influenced the Crawford majority, notes, “[I]f the

statement is not testimonial, so that the declarant should not be deemed to have been

acting as a witness in making it, the [Confrontation] Clause should not bar its

30

admissibility, even if the statement does not seem reliable.”3 No matter how the dissent

spins the language of Crawford, the decision does not broaden Confrontation Clause

scrutiny to encompass nontestimonial statements. Thus the dissent is incorrect to go as

far as to assume “that the right of confrontation applies to both testimonial and

nontestimonial statements[,]” and that the Roberts analysis has been rendered

inapplicable. Nontestimonial statements should be admitted under the Roberts standard,

which is most often met by a “firmly rooted” hearsay exception.4 The rules of evidence,

properly interpreted, provide sufficient guarantees of fairness. Contrary to the dissent’s

assertion, firmly rooted exceptions, like that for excited utterances, are still valid law.

¶42 Prosecutors are still required to prove their case beyond a reasonable doubt. The

difficulty of gaining a conviction increases significantly where the prosecution’s case

relies primarily upon out of court statements. Experience shows that jurors simply give

less weight to hearsay. John G. Douglass, Confronting the Reluctant Accomplice, 101

Colum. L. Rev. 1797, 1839, n.180 (2001) (“[J]urors exposed to hearsay will know that

they are receiving secondhand goods.”); Richard F. Rakos & Stephan Landsman,

Researching the Hearsay Rule: Emerging Findings, General Issues, and Future

3

Richard D. Friedman, Confrontation: The Search For Basic Principals, 86 Geo. L.

J. 1011, 1029 (1998).

4

See Mosteller, 39 U. Rich. L. Rev. at 618 (“Resolving Roberts's future will not have

an impact on the outcome of many cases since the Confrontation Clause was generally easily

satisfied under the Roberts test as to most admissible hearsay, and indeed, admissibility

under Roberts's reliability and trustworthiness analysis was most often decided automatically

when the statement met a broadly accepted and long established -‘firmly rooted’- hearsay

exception.”).

31

Directions, 76 Minn. L. Rev. 655, 656-658 (1992); Crawford, 541 U.S. at 70, 124 S.Ct. at

1375, 158 L.Ed. at 204, n.1.

¶43 The Court’s opinion today provides for fair trials of the accused while giving

consideration to victims and witnesses. Conversely, the dissent’s objective of protecting

the accused to the utmost extent, while perhaps well intentioned, fails to adequately

consider how such an interpretation of the Confrontation Clause would impede our

pursuit of truth and justice in an imperfect world.

/S/ JOHN WARNER

32

Justice James C. Nelson dissents.

¶44 Mary Smith: Mr. Jones, I’m calling because I was just served with a

subpoena. Am I supposed to testify against my

husband in the spouse abuse trial?

Prosecutor Jones: Yes, that’s right Mary. The trial starts Monday

morning at 8:00 A.M. at the courthouse. I’ll be asking

you to tell the jury how Harry beat you last October

when he came home drunk from the football game.

Mary Smith: Look. I’ve been thinking it over, and I’ve decided I

don’t want to press charges. I just overreacted because

Harry went to the game with his buddies and left me

with the kids. Harry’s been pretty good since he spent

the weekend in jail, and if I testify it will just make

him mad. He’ll lose his temper and then . . . . Well,

it’s just not worth it. I’ve got to think about the kids.

I’m not going to testify against Harry. He’s still my

husband. I love him. I have to live with him; you

don’t. I won’t testify. Just call the trial off.

Prosecutor Jones: I can’t do that Mary. This is Harry’s third domestic

abuse offense. We’re going to prosecute with or

without your help. You’ve got a subpoena and you’re

required to be there. It’s a court order and you can be

held in contempt if you don’t show up.

Mary Smith: I’m telling you I don’t want to press charges and I’m

not going to testify. I don’t particularly care about

some stupid court order. I won’t be there, so forget

the whole thing. Call it off.

Prosecutor Jones: I’m sorry, but that isn’t going to happen. Besides, our

State Supreme Court has told us that we don’t need

your testimony anyway. We’ve got your statements to

your neighbor, Ginny, after the fight, and we’ve got

your statements when you called 911. Officer Brown

will testify as to what you told him about the fight. We

may be able to get the ER doctor to testify about what

you told him when he patched you up. That’s all we

need. We’re going ahead with the trial whether you

show up or not.

34

Mary Smith: Oh. So you really don’t need my testimony? Thanks a

bunch. Bye.

¶45 I have no doubt that, henceforth, this conversation, or something closely akin, will

be had in prosecutors’ offices across the State.1 Police and prosecutors have already

begun modifying their evidence-gathering techniques so as to avoid the impact of

Crawford.2 And I fully expect that victims’ advocacy groups will be advising their clients

1

For those who think the foregoing dialogue is fanciful, it is not. See, e.g., Andrew King-

Ries, Crawford v. Washington: The End of Victimless Prosecution?, 28 Seattle U. L. Rev. 301, 321-

28 (arguing that the Supreme Court’s decision in Crawford v. Washington should be interpreted so

as to preserve “victimless” domestic violence prosecutions). Professor King-Ries explains that

when victims of domestic abuse refuse to testify against their abusers, prosecutors often proceed

with “victimless” prosecutions, which he characterizes as “a creative, resourceful, and effective

response” to the dynamics of domestic violence. See King-Ries, at 301, 305-06, 327. In a

victimless prosecution, the victim does not testify; rather, the prosecution is based largely on the

admission of the victim’s out-of-court statements as excited utterances (as in the case at hand),

present sense impressions, or statements to medical personnel. See King-Ries, at 301, 308-11.

Professor King-Ries advocates “carefully constru[ing]” the definition of Crawford’s

“testimonial” concept in the domestic violence context so as to permit the continued use of excited

utterances, present sense impressions, and statements to medical personnel in victimless

prosecutions and, thereby, to preserve “the strength of victimless prosecutions.” See King-Ries, at

326-28. He submits that if it were no longer possible to prosecute a domestic abuse case in the

victim’s absence, prosecutors would be “powerless to address a significant portion of domestic

violence crimes,” King-Ries, at 328, and defendants would “profit from [their] own misdeeds

because the domestic violence victim is generally absent from trial due to the defendant’s action or

threatened action,” King-Ries, at 325. (Of course, as will be explained below, it is not necessary for

the victim to testify at trial, as long as she is unavailable in the legal sense and the defendant has had

a prior opportunity to cross-examine her--for instance, at a pre-trial proceeding such as a deposition

or a preliminary hearing. Furthermore, if the victim’s absence from trial were due to threats by the

defendant of repercussions should the victim appear and testify against him, then his right to

confront the victim would be extinguished on equitable grounds. See Crawford, 541 U.S. at 62, 124

S.Ct. at 1370 (“[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation

claims on essentially equitable grounds.”).)

2

See Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the

Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 513 (2005) (hereinafter, “Mosteller,

Encouraging and Ensuring”) (“[T]he practices in some jurisdictions of having victims make

statements to investigating officers on videotape shortly after the crime were once very useful to the

prosecution, but now produce inadmissible testimonial statements. Police and prosecutors are

35

of this Court’s decision and counseling that whether victims show up at trial to testify is

of little consequence and may, in fact, put their clients at greater risk of harm.3

certain to develop alternative investigative methods in an attempt to avoid Crawford’s impact.”)

(footnote omitted); Richard D. Friedman, Grappling with the Meaning of “Testimonial,” 70 Brook.

L. Rev. (forthcoming 2005), at http://www-personal.umich.edu/~rdfrdman/Grappling1.pdf (draft)

(hereinafter, “Friedman, Grappling”), at 3 (“Some police have been led to believe that even if a

statement[] made knowingly to them accuses a person of a crime it is not testimonial unless [the]

product of a formal interrogation begun after the police have determined that a crime has been

committed. And so we have seen that police and prosecutors have done their best to secure

accusatory statements without beginning what would necessarily be deemed a formal

interrogation.”); Friedman, Grappling, at 14 (The idea “that a statement is not testimonial unless it

is made in response to governmental interrogation,” which some courts define restrictively as

“ ‘structured police questioning,’ ” “has begun to distort police practices, as police [try] to act in

such a way that prosecutors can later argue that statements made to the police were not in response

to interrogation.”). See also Friedman, Grappling, at 20 (“Since Crawford, many courts have

continued operating essentially as they did before. . . . [T]he National Council of Juvenile and

Family Court Judges published in its journal Juvenile Justice Today an article by two Florida judges

saying that courts could essentially ignore Crawford by invoking the excited utterance exception to

the rule against hearsay.”).

3

See Brief of Amicus Curiae Montana Coalition Against Domestic and Sexual Violence at

3 (“Victims of domestic and/or sexual violence [defined by amicus “to include all emotional and/or

physical abuse perpetrated by an individual exerting power and control over another individual”]

often recant or refuse to participate in prosecution efforts. While there are myriad reasons victims

choose not to participate in the prosecution of those who have battered them, many choose not to

participate because of the risk of further harm from their abusers. ‘Many victims who become

witnesses in criminal cases against their abusers are subject to threats, retaliation, and intimidation

to coerce their noncooperation with prosecutors.’ Often, the victim is in more danger when s/he

participates in the criminal prosecution.”) (citations and footnote omitted).

See also Friedman, Grappling, at 11 (“A rule providing that a statement is not testimonial

unless it is made directly to government agents would have some consequences that I believe are

intolerable. . . . I think it is not only plausible but virtually inevitable that, if a government agent

standard is established by the courts, private victims’ rights organizations will provide a comfortable

way for [many] complainants to create evidence for use in prosecution without having to confront

the accused: ‘Make a videotape, and then go on vacation. We’ll bring the tape to court and present

the testimony necessary to get the tape shown to the jury. Don’t worry, you never have to look the

accused in the eye, you never have to answer questions by his attorney, and you don’t even have to

take an oath.’ How can the making of that videotape not be considered testimonial?”).

36

¶46 Indeed, according to the majority opinion, the State may freely use a victim’s

hearsay statements if it can come up with a third party witness who was not a known

government agent, or if it can persuade the trial court that the hearsay statements served

only to avert or mitigate an imminent or immediate danger, that the recipient of the

statements had no intent to create evidence, and that the statements are sufficiently

reliable or trustworthy to be admitted notwithstanding the accused’s inability to cross-

examine the victim4--not a difficult feat, as this case demonstrates. As such, there will be

no compelling reason for victims of Partner or Family Member Assault to testify at the

trials of their alleged abusers. In fact, if the theory of this case is followed to its logical

conclusion, there likewise will be no reason for victims of rape, sexual assault, robbery,

assault, attempted homicide or, for that matter, any crime involving “emotional and/or

physical abuse perpetrated by an individual exerting power and control over another

individual,” Brief of Amicus Curiae Montana Coalition Against Domestic and Sexual

Violence at 3 n.1, to testify either. Subpoenas of victims will not be worth the paper they

are written on.

¶47 Even worse, and under the same circumstances, there will no longer be a

compelling reason for the State to even subpoena the victim. Why put up with the risk of

4

See Rule 803(1)-(4), M.R.Evid. (setting forth the present sense impression (803(1)),

excited utterance (803(2)), then-existing mental, emotional or physical condition (803(3)), and

statements for purposes of medical diagnosis or treatment (803(4)) exceptions to the hearsay rule).

37

recanted and equivocal testimony?5 Why subject the victim to the additional trauma of

having to confront the alleged perpetrator face to face and deal with his or her attorney’s

cross-examination? Why put the victim at risk of contempt if he or she “refuse[s] to

participate in prosecution efforts” or “choose[s] not to participate in the prosecution,”

Brief of Amicus Curiae Montana Coalition Against Domestic and Sexual Violence at 3?

Better to simply shift the burden of proof to the accused--allow the State to introduce the

victim’s out-of-court statements and force the defendant to subpoena the victim in order

5

In the case at hand, for instance, Debra (the victim/declarant) told the investigating officer

that she “was pressing no charges and was not going to court,” and she sent a notarized statement

to the prosecutor before trial informing him that Mizenko had not injured her in any way. She later

completed a Victim’s Impact Statement (in connection with the Pre-Sentence Investigation) in which

she expressed frustration that her notarized statement “seems to have been completely ignored” and

reiterated that Mizenko “did not cause bodily injury to me. . . . I was not injured. The rugburn on

my chin was a result of playing w/the dog.” In an attached letter, she referred to an “inebriated

recording” (presumably her tape-recorded statements to the 911 operator) and conveyed surprise that

Mizenko had been convicted in spite of her “true” notarized statement: “I still cannot believe the

jury could find him guilty after seeing my true statement. I did not think that court would even be

held after the statement had been read.” (According to the record, the jury asked during

deliberations to see the letter Debra had written to the prosecutor, but the District Court denied the

jury’s request.) Also in her letter, Debra lamented that the Victim’s Impact Statement “could have

exonerated my husband” had she been asked to fill it out “before this whole court fiasco.” And

finally, when asked whether this incident has affected her lifestyle, she stated, “Yes because of my

inebriated and false statement, my husband has lost his job.”

These assertions are entirely contrary to the hearsay statements admitted against Mizenko

at his trial. Thus, if Debra had been subjected to direct and cross examination, the prosecutor would

have had to contend with Debra’s recantation. Indeed, he acknowledged this fact during his closing

argument: “Did I want Mrs. Mizenko here to testify, you bet I did. Did I suspect what she might

have told you, yeah, I suspect what she might have told us. But you know at the time she went over

to Dawn Grove’s house, and we are going to send a tape back in with you to listen to, it had just

happened and what she told Dawn Grove, is what [Mizenko] did.” Hence, rather than having to

persuade the jury to believe one of two conflicting versions of the events of October 3, 2003, the

prosecution was able to supply the jury--unhampered by contrary testimony--with the one version

that supported its case. The jury never had to assess which version was more reliable; the District

Court, in overruling Mizenko’s hearsay objections, did that for them.

38

to prove his innocence. If the victim refuses or chooses not to show up for the trial, so

what? The State’s case is secure.

¶48 And the threat of contempt?6 Even if the prosecutor pushes the issue and even if

the District Judge is willing to make the non-testifying-victim a martyr by holding her or

him in contempt, most victims still will be more than happy to take a tongue-lashing from

the court and pay a small fine than testify, especially since doing so is now an option as a

practical matter. Indeed, I expect that most abusers will be more than happy to pay the

fine if doing so keeps their accusers off the witness stand.

¶49 The majority opinion misinterprets and, thus, misapplies the right of confrontation.

The hearsay evidence admitted in Mizenko’s trial, over his objection, consisted of

statements by his wife Debra to three persons: Dawn Grove (“Grove”), Mizenko and

Debra’s neighbor; Tami King (“King”), the 911 operator; and Deputy Buennemeyer

(“Buennemeyer”), the investigating officer. Mizenko never had an opportunity to cross-

examine these statements. Thus, by affirming the District Court’s admission of this

hearsay testimony, the majority perpetuates the District Court’s denial of Mizenko’s

fundamental right “to be confronted with the witnesses against him,” as guaranteed by the

Sixth Amendment of the United States Constitution, and his even greater fundamental

right “to meet the witnesses against him face to face” under Article II, Section 24, of

Montana’s Constitution (emphasis added).

6

See §§ 3-1-501(1)(j) and 45-7-309(1)(c), MCA.

39

I. Approach

¶50 The majority opinion is grounded in the United States Supreme Court’s decision in

Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, which

effected a sea change in Sixth Amendment jurisprudence.7 However, the majority has

misapplied the core holdings of the Crawford decision and, in so doing, has severely

diminished the confrontation and cross-examination rights of persons accused of crimes

in this state. That this should happen in Montana is especially tragic.

¶51 Crawford may be analyzed from two perspectives, both of which I cover in this

opinion. First, I begin with an analysis of what constitutes a “testimonial” statement,

focusing on the meaning of that term as set forth in Crawford and the authorities to which

it cites. During this discussion, I also address the majority’s (mis)interpretation of the

Confrontation Clause and, in particular, its erroneous definition of “testimonial.”

¶52 I next apply to the facts of the case sub judice a definition of “testimonial” that is

faithful to both Crawford and the Confrontation Clause as conceived by the Framers. If

the hearsay evidence at issue here is “testimonial” under this definition--and I conclude

7

This is especially true of domestic violence cases. “As jurisdictions implemented policy

judgments that abusers should be arrested and prosecuted in domestic violence cases regardless of

the wishes of the immediate victim, prosecutors developed methods for ‘victimless’ prosecutions.

These prosecutions were based on the introduction of hearsay through excited utterances, statements

for medical treatment, past recollection recorded, special exceptions, and the catch-all provision.

Ohio v. Roberts [(1980), 448 U.S. 56, 100 S.Ct. 2531,] allowed the Confrontation Clause to be

satisfied automatically for hearsay exceptions, such as excited utterances, that were ‘firmly rooted’

and required no showing of unavailability. Crawford has disrupted domestic violence prosecutions

to a degree not seen in any other area. It erected a ‘stop sign’ in front of most of this evidence,

which combined with its reluctance to treat excited utterances as a historic exception to

confrontation, has caused massive disruption and great uncertainty.” Mosteller, Encouraging and

Ensuring, supra note 2, at 607-08 (footnotes omitted).

40

that it is--then its use at Mizenko’s trial was categorically barred unless Debra was

“unavailable” to testify and Mizenko had a prior opportunity to cross-examine her.

¶53 Thus, because I disagree with the majority’s determination that the hearsay

statements admitted at trial were nontestimonial, I then address whether Debra was

“unavailable” to testify and whether Mizenko had a prior opportunity to cross-examine

her. With respect to the former requirement, the District Court (1) failed in its obligation

to hold the State to its burden to prove Debra was unavailable (in the legal sense) and (2)

failed to specifically rule on the question of unavailability. Thus, Debra was not

“unavailable.” With respect to the latter requirement, there is no dispute that Mizenko did

not at any time have an opportunity to cross-examine Debra. Accordingly, I conclude

that neither requirement was met and that the District Court, therefore, erred in admitting

Debra’s statements.

¶54 Finally, I take up the second perspective from which Crawford may be analyzed,

focusing on the Supreme Court’s rejection of the reliability and trustworthiness

framework of Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, and,

in particular, the Court’s rejection of the very rationales upon which it had relied in White

v. Illinois (1992), 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848, in upholding the

admission of hearsay testimony as an excited utterance. I conclude that the admission of

hearsay statements based on the excited utterance exception is no longer permitted unless

the declarant is “unavailable” and there was a prior opportunity for the accused to cross-

examine the declarant.

II. The Right to Confront

41

¶55 There are few subjects . . . upon which this Court and other courts have

been more nearly unanimous than in their expressions of belief that the

right of confrontation and cross-examination is an essential and

fundamental requirement for the kind of fair trial which is this country’s

constitutional goal.

Pointer v. Texas (1965), 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923.

¶56 Crawford breathes new life into the admonition of Pointer. Before turning to

Crawford, however, it is critical to first acknowledge that Article II, Section 24, of

Montana’s Constitution guarantees persons accused of crimes even greater rights of

confrontation and cross-examination than does the Federal Constitution. It is very

unfortunate that the defense did not recognize this fact and pursue a claim under Article

II, Section 24. 8 Nonetheless, given that the right of confrontation is a fundamental right, I

will address this right under the Montana Constitution, after which I will proceed with my

discussion of Crawford.

A. The Right of Confrontation in Montana

¶57 In pertinent part, Article II, Section 24, provides that “[i]n all criminal

prosecutions the accused shall have the right . . . to meet the witnesses against him face to

face.” (Emphasis added.) In State v. Clark, 1998 MT 221, 290 Mont. 479, 964 P.2d 766,

we interpreted this guarantee and held that the admission of a state crime lab report under

the public records and reports hearsay exception, see Rule 803(8), M.R.Evid., without

8

The only citation in Mizenko’s brief to Article II, Section 24, is in the following sentence,

which itself is an incorrect statement of the extent of the protection afforded under the Montana

Constitution: “It is a basic premise that [under] the sixth amendment to the United States

Constitution (similar to Art. II, Sec. 24, Montana Constitution) the right of confrontation is

effectively denied a criminal defendant when . . . .” Brief for Appellant at 6 (emphasis added).

42

requiring the presence of the technician who wrote the report, violated the defendant’s

state constitutional right to confront and cross-examine his accuser. See Clark, ¶¶ 25, 30.

Importantly, based on the plain language of our Constitution, we held that Montana’s

Confrontation Clause provides the accused greater protection than does its federal

counterpart, the Sixth Amendment. Clark, ¶¶ 20-25. We stated that

[u]nlike its federal counterpart, the text of Montana’s Confrontation Clause

specifically guarantees the accused’s right “to meet the witnesses against

him face to face.” As we noted in State v. Young (1991), 249 Mont. 257,

260, 815 P.2d 590, 592, “[t]he 1972 Montana Constitution and subsequent

cases analyzing the Confrontation Clause have made it abundantly clear that

full cross-examination is a critical aspect of the right of confrontation.”

Moreover, we have recognized that the rights contained in the Declaration

of Rights, which include the rights guaranteed to an accused person in a

criminal prosecution, are fundamental rights. Wadsworth v. State (1996),

275 Mont. 287, 299, 911 P.2d 1165, 1171-72.

Clark, ¶ 22 (second alteration in original).

¶58 We then went on to discuss the importance of cross-examination, which is

protected by the Confrontation Clause:

Cross-examination is the hallmark of our system of justice because it

produces truth. Such things as the demeanor of a witness, his or her body

language, and a witness’s hesitancy in giving testimony, often communicate

as much to the fact-finder as the spoken words.

Clark, ¶ 23. Finally, we observed that

[t]he framers of the Montana Constitution appreciated these safeguards and

saw fit to distinguish our Confrontation Clause from the United States

Constitution by insuring a criminal defendant the right “to meet the

witnesses against him face to face.” Mont. Const. art. II, § 24.

Clark, ¶ 24.

43

¶59 The point of Clark is that whatever confrontation right the Sixth Amendment

guarantees to persons accused of crimes, Montana’s Constitution protects this right to an

even greater extent because the plain language of our Constitution “specifically

guarantees a criminal defendant the right to a face-to-face confrontation with his or her

accusers.” Clark, ¶ 25 (emphasis added).

B. Crawford and the Federal Right of Confrontation

1. Background

¶60 Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. Over

objection, the prosecution introduced--as evidence that the stabbing was not in self-

defense, as Crawford claimed--a tape-recorded statement that Sylvia had made during a

police interrogation. Sylvia did not testify at trial because of Washington’s marital

privilege; however, this privilege did not extend to out-of-court statements admissible

under an exception to the hearsay rule. See Crawford, 541 U.S. at 38-40, 124 S.Ct. at

1356-58.

¶61 The State invoked the exception for statements against penal interest, Wash. Rule

Evid. 804(b)(3) (2003). In response, Crawford argued that, state law notwithstanding,

admitting Sylvia’s statement would violate his federal constitutional right to be

“confronted with the witnesses against him.” Crawford, 541 U.S. at 40, 124 S.Ct. at 1358

(internal quotation marks omitted). In denying Crawford’s objection, the trial court relied

on Roberts, supra. Under that case, the out-of-court statement of an unavailable9 witness

9

In United States v. Inadi (1986), 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390, the

Supreme Court “rejected the proposition that Roberts established a rule that ‘no out-of-court

44

against a criminal defendant is not barred if the statement bears “adequate indicia of

reliability.” Crawford, 541 U.S. at 40, 124 S.Ct. at 1358 (internal quotation marks

omitted). To meet this test, the statement must fall within a “firmly rooted hearsay

exception” or bear “particularized guarantees of trustworthiness.” Crawford, 541 U.S. at

40, 124 S.Ct. at 1358 (internal quotation marks omitted).

¶62 Concluding that Sylvia’s statement was sufficiently reliable under the latter

ground--i.e., it bore “particularized guarantees of trustworthiness”--the trial court

admitted it. See Crawford, 541 U.S. at 40, 124 S.Ct. at 1358. The prosecution played the

tape for the jury and referred to it in closing argument as “damning evidence” that

“completely refutes” Crawford’s claim of self-defense. Crawford, 541 U.S. at 40-41, 124

S.Ct. at 1358 (internal quotation marks omitted). The jury convicted Crawford of assault,

see Crawford, 541 U.S. at 41, 124 S.Ct. at 1358, and the Washington Supreme Court

upheld the conviction after determining that Sylvia’s statement was “reliable,” see

Crawford, 541 U.S. at 38, 124 S.Ct. at 1357.

¶63 On appeal, the United States Supreme Court addressed the issue of whether the

procedure used by the Washington courts complied with the Sixth Amendment’s

guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” Crawford, 541 U.S. at 38, 124 S.Ct. at 1357

statement would be admissible without a showing of unavailability.’ To the contrary, rather than

establishing ‘a wholesale revision of the law of evidence’ under the guise of the Confrontation

Clause, we concluded that ‘Roberts must be read consistently with the question it answered, the

authority it cited, and its own facts.’ So understood, Roberts stands for the proposition that

unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the

challenged out-of-court statements were made in the course of a prior judicial proceeding.” White,

502 U.S. at 353-54, 112 S.Ct. at 741 (emphasis added) (citations omitted).

45

(alteration and ellipsis in original) (internal quotation marks omitted). In resolving this

question against the State, the Court overruled Roberts, at least as that case applies to a

particular class of out-of-court statements. Crawford, 541 U.S. at 68-69, 124 S.Ct. at

1374.

¶64 The Court commenced its analysis by discussing the common law tradition and

development of the Confrontation Clause. See Crawford, 541 U.S. at 43-50, 124 S.Ct. at

1359-63. From this history, the Court drew two inferences about the meaning of the

Sixth Amendment. First, the Court determined that “the principle evil at which the

Confrontation Clause was directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against the accused.”10

Crawford, 541 U.S. at 50, 124 S.Ct. at 1363. Accordingly, the Court soundly “reject[ed]

the view that the Confrontation Clause applies of its own force only to in-court testimony,

10

One of the “most notorious” instances of civil-law examination occurred in the great

political trial of Sir Walter Raleigh for treason in 1603. See Crawford, 541 U.S. at 44, 124 S.Ct. at

1360. The Court discussed this trial--which has long been thought a “paradigmatic confrontation

violation,” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364--during its analysis of the historical

background of the Confrontation Clause:

Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination

before the Privy Council and in a letter. At Raleigh’s trial, these were read to the

jury. Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely

in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope

for favour.” Suspecting that Cobham would recant, Raleigh demanded that the

judges call him to appear, arguing that “[t]he Proof of the Common Law is by

witness and jury: let Cobham be here, let him speak it. Call my accuser before my

face . . . .” The judges refused, and, despite Raleigh’s protestations that he was being

tried “by the Spanish Inquisition,” the jury convicted, and Raleigh was sentenced to

death.

Crawford, 541 U.S. at 44, 124 S.Ct. at 1360 (alteration and ellipsis in original) (internal citations

omitted).

46

and that its application to out-of-court statements introduced at trial depends upon the law

of Evidence.” Crawford, 541 U.S. at 50-51, 124 S.Ct. at 1364 (internal quotation marks

omitted). Moreover, the Court explained, “[t]he constitutional text . . . reflects an

especially acute concern with a specific type of out-of-court statement,” which the Court

referred to as “testimonial” hearsay.11 See Crawford, 541 U.S. at 51, 53, 124 S.Ct. at

1364, 1365.

¶65 The second proposition supported by the history of the Confrontation Clause is

“that the Framers would not have allowed admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54, 124

S.Ct. at 1365. Furthermore, the text of the Sixth Amendment does not suggest that courts

may develop “open-ended exceptions from the confrontation requirement.” Crawford,

541 U.S. at 54, 124 S.Ct. at 1365. Rather, the Confrontation Clause “is most naturally

read as a reference to the right of confrontation at common law, admitting only those

exceptions established at the time of the founding.” Crawford, 541 U.S. at 54, 124 S.Ct.

at 1365. Those exceptions “conditioned admissibility of an absent witness’s examination

on unavailability and a prior opportunity to cross-examine,” Crawford, 541 U.S. at 54,

124 S.Ct. at 1366 (emphases added), not on amorphous notions of reliability and

11

It was not necessary in Crawford to “definitely resolve” whether the Confrontation Clause

applies only to testimonial hearsay, since Sylvia Crawford’s statement was “testimonial under any

definition.” Crawford, 541 U.S. at 61, 124 S.Ct. at 1370. However, the Court did note that “even

if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object.”

Crawford, 541 U.S. at 53, 124 S.Ct. at 1365.

47

trustworthiness. Therefore, the Sixth Amendment incorporates those limitations. See

Crawford, 541 U.S. at 54, 124 S.Ct. at 1366.

¶66 Moreover, the Court determined from the historical record that a prior opportunity

to cross-examine was a “necessary,” and not “merely a sufficient, . . . condition for

admissibility of testimonial statements.” Crawford, 541 U.S. at 55, 124 S.Ct. at 1366-67.

In other words, the requirement was “dispositive” as to whether a testimonial statement

could be admitted; it was not merely one of several ways to establish reliability. See

Crawford, 541 U.S. at 55-56, 124 S.Ct. at 1367. The Court also observed that while there

were exceptions to the general rule of exclusion of hearsay evidence in 1791 (the year the

Sixth Amendment was ratified), most of those exceptions “covered statements that by

their nature were not testimonial--for example, business records or statements in

furtherance of a conspiracy.” Crawford, 541 U.S. at 56, 124 S.Ct. at 1367. “[T]here is

scant evidence that exceptions were invoked to admit testimonial statements against the

accused in a criminal case.”12 Crawford, 541 U.S. at 56, 124 S.Ct. at 1367 (emphases in

original).

¶67 The Court then addressed its prior case law, see Crawford, 541 U.S. at 57-59, 124

S.Ct. at 1367-69, concluding that, for the most part, its jurisprudence (or, at least, the

outcomes of its cases) had been consistent with the two propositions discussed above and

with the Framers’ understanding of the right of confrontation: “Testimonial statements of

12

The Court acknowledged that testimonial statements were admitted in some cases under

the “dying declaration” exception. See Crawford, 541 U.S. at 56 n.6, 124 S.Ct. at 1367 n.6.

However, even if the Sixth Amendment incorporates an exception for testimonial dying declarations,

“it is sui generis.” Crawford, 541 U.S. at 56 n.6, 124 S.Ct. at 1367 n.6.

48

witnesses absent from trial have been admitted only where the declarant is unavailable,

and only where the defendant has had a prior opportunity to cross-examine.” 13 Crawford,

541 U.S. at 59, 124 S.Ct. at 1369.

¶68 In sum, Crawford sets forth a categorical bar: certain hearsay evidence is

inadmissible at a criminal trial unless (1) the declarant is unavailable and (2) the

defendant has had a prior opportunity to cross-examine the declarant. See Crawford, 541

U.S. at 53-54, 55-56, 59, 68, 124 S.Ct. at 1365, 1366-67, 1369, 1374. The “specific type

of out-of-court statement” implicated by this prohibition is, at a minimum, the

“testimonial” statement of a witness who is absent from trial. See Crawford, 541 U.S. at

51, 124 S.Ct. at 1364.

2. “Testimonial” Statements

¶69 The Court “[left] for another day any effort to spell out a comprehensive definition

of ‘testimonial,’ ” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; however, it did,

nonetheless, provide a number of insights into what the term means. The Court stated

that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”

Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. We are also told that “[a]n accuser who

makes a formal statement to government officers bears testimony,” Crawford, 541 U.S. at

51, 124 S.Ct. at 1364, and that a plea allocution showing the existence of a conspiracy is

“plainly testimonial,” Crawford, 541 U.S. at 64, 124 S.Ct. at 1372. At the other extreme,

13

Crawford left undisturbed the rule of forfeiture by wrongdoing, which extinguishes

confrontation claims on equitable grounds. See Crawford, 541 U.S. at 62, 124 S.Ct. at 1370.

49

“[a]n off-hand, overheard remark” and “a casual remark to an acquaintance” are

nontestimonial. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. Also, statements

falling within the hearsay exceptions for business records and statements in furtherance of

a conspiracy at the time of the framing “by their nature were not testimonial.” Crawford,

541 U.S. at 56, 124 S.Ct. at 1367.

¶70 As for statements which do not fit within one of the foregoing examples, the Court

provided guidance in the form of three definitions or “formulations” of testimonial

statements:

“ex parte in-court testimony or its functional equivalent--that is, material

such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially,” Brief for

Petitioner 23; “extrajudicial statements . . . contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or

confessions,” White v. Illinois, 502 U.S. 346, 365 (1992) (THOMAS, J.,

joined by SCALIA, J., concurring in part and concurring in judgment); [and]

“statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be

available for use at a later trial,” Brief for National Association of Criminal

Defense Lawyers et al. as Amici Curiae 3.

Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364 (ellipsis in original). While these

formulations suggest the dividing line between “testimonial” and “nontestimonial,” the

Court did not identify any of them as defining the outer boundary of testimonial

statements (since Sylvia Crawford’s statement was “testimonial under any definition,”

Crawford, 541 U.S. at 61, 124 S.Ct. at 1370). Rather, the Court observed that “[t]hese

formulations all share a common nucleus and then define the Clause’s coverage at

various levels of abstraction around it.” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364

50

(emphasis added). See also Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (“[Testimonial]

applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or

at a former trial.”) (emphasis added); Crawford, 541 U.S. at 52, 124 S.Ct. at 1364

(“Statements taken by police officers in the course of interrogations are also testimonial

under even a narrow standard.”) (emphasis added). (The third formulation--asking

whether the circumstances under which a statement was made would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial--

is the broadest of the three, while the second--tying the definition of testimonial to

“formalized” materials--is the narrowest.) Thus, because the statements by Debra to

Grove and King do not fit within any of the aforementioned examples,14 it is necessary in

the case at hand to determine what “level[] of abstraction,” Crawford, 541 U.S. at 52, 124

S.Ct. at 1364, best reflects the meaning of “testimonial” as contemplated by Crawford

and the Confrontation Clause, and whether Debra’s statements fall within that

formulation.15

14

Debra’s statements to Deputy Buennemeyer fit within the category of “interrogations by

law enforcement officers.” Crawford, 541 U.S. at 53, 124 S.Ct. at 1365. The Court used the term

“ ‘interrogation’ in its colloquial, rather than any technical legal, sense,” Crawford, 541 U.S. at 53

n.4, 124 S.Ct. at 1365 n.4; and, at the time Debra’s statements were made, Buennemeyer was at the

Mizenkos’ house, pursuant to “a report of a domestic problem,” investigating Debra’s charge that

Mizenko had “hit her, pushed her down and . . . pulle[d] out her hair.”

15

In this regard, our previous decision addressing the meaning of “testimonial”--State v.

Carter, 2005 MT 87, 326 Mont. 427, 114 P.3d 1001--is inapposite. While we acknowledged the

applicability of Crawford to the hearsay statements at issue in Carter (the certification reports for

the Intoxilizer 5000), we explicitly declined to even “attempt to articulate a precise definition of

testimonial evidence,” Carter, ¶ 31, concluding simply that “the certification reports used at Carter’s

trial are nontestimonial evidence because they do not fall within the core group of statements which

the Confrontation Clause was meant to address,” Carter, ¶ 32 (emphasis added). Furthermore, we

relied on pre-Crawford Montana law--specifically, State v. Delaney, 1999 MT 317, 297 Mont. 263,

51

¶71 In ascertaining the breadth of “testimonial,” the starting point is the text of the

Confrontation Clause itself, which by its terms applies to “witnesses against [the

accused].” U.S. Const. amend. VI. As noted above, the Court rejected the view that this

provision applies only to in-court testimony (i.e., persons who testify against the accused

at trial). See Crawford, 541 U.S. at 50-51, 124 S.Ct. at 1364. At the same time, however,

the Court made it clear that not all declarants whose out-of-court statements are offered at

trial to prove the truth of what they assert are “witnesses” within the meaning of the Sixth

Amendment. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (“not all hearsay

implicates the Sixth Amendment’s core concerns”). Rather, the term applies to “those

who ‘bear testimony.’ ” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (quoting 1 N.

Webster, An American Dictionary of the English Language (1828)). Thus, the question

becomes under what circumstances besides those listed in Crawford as plainly

testimonial--prior testimony at a preliminary hearing, before a grand jury, or at a former

trial; police interrogations; a formal statement made by an accuser to a government

officer; and a plea allocution showing the existence of a conspiracy--is an out-of-court

declarant “bear[ing] testimony.” In other words, when is a declarant functioning as a

“witness[]” against the accused extrajudicially? Cf. Mosteller, Encouraging and

Ensuring, supra note 2, at 515 (“In essence, the issue is whether the core of the

991 P.2d 461--in defining “testimonial” for purposes of the certification reports. See Carter, ¶ 32

(“As we stated in Delaney, such certification reports are not substantive evidence of a particular

offense, but rather are foundational evidence necessary for the admission of substantive evidence.

In other words, the certification reports are nontestimonial in nature in that they are foundational,

rather than substantive or accusatory.”) (citation omitted); Carter, ¶ 34 (“Thus, we adhere to the

rationale of Delaney and hold that the nontestimonial pieces of evidence at issue here . . . do not

implicate Carter’s constitutional right of confrontation.”).

52

Confrontation Clause, covering a relatively small group of statements, is instead the

complete confrontation right.”). The answer to this question determines which statements

that do not fit within the aforementioned “common nucleus” are nevertheless testimonial.

¶72 At the outset, it is necessary to clarify, for the reasons which follow, that neither

government involvement nor a particular procedure in procuring a declarant’s statement

is required in order for the declarant to function as a witness against the accused. First,

all of the formulations set forth in Crawford contemplate statements made in the absence

of government officials or agents, and two of the three formulations clearly extend to

situations outside the ambit of formalized materials. Specifically, the first formulation

refers to the “functional equivalent” of ex parte in-court testimony, giving affidavits 16 and

“similar pretrial statements that declarants would reasonably expect to be used

prosecutorially” as examples. Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (internal

quotation marks omitted). The second formulation, which is the narrowest of the three,

also includes affidavits as an example of a testimonial statement.17 See Crawford, 541

U.S. at 51-52, 124 S.Ct. at 1364. And the third formulation refers to statements that were

made “under circumstances which would lead an objective witness reasonably to believe

16

An “affidavit” is “a written declaration under oath, made without notice to the adverse

party.” Section 26-1-1001, MCA. A notary public, who is not necessarily a government official,

see §§ 1-5-401 to -402, MCA, has the power to administer oaths or affirmations, see § 1-6-101,

MCA, and to take depositions and affidavits, see § 1-5-416(1)(b), MCA.

17

The second formulation, proposed by Justice Thomas in White, 502 U.S. at 365, 112 S.Ct.

at 747 (Thomas, J., concurring in part and concurring in the judgment), also includes “confessions,”

Crawford, 541 U.S. at 52, 124 S.Ct. at 1364, which is noteworthy because confessions are not

always taken in a “formalized” manner.

53

that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52,

124 S.Ct. at 1364 (internal quotation marks omitted).

¶73 Second, in its discussion of the historical development of the right of confrontation

and the “principal evil” at which the Confrontation Clause was directed, the Court

repeatedly emphasized the ex parte aspect of the evidence admitted against the accused

and the absence of face to face confrontation. See Crawford, 541 U.S. at 43-50, 124 S.Ct.

at 1359-63. Although it was frequently the case that a government official had gathered

this evidence pursuant to a prescribed or formalized procedure, it was the accused’s lack

of an opportunity to confront his accuser which most concerned the Framers. Indeed, one

source of the out-of-court statements read to the jury at Sir Walter Raleigh’s trial was

Lord Cobham’s letter.18 See Crawford, 541 U.S. at 44, 124 S.Ct. at 1360. Furthermore,

to say that the right of confrontation is concerned only with statements given pursuant to

a formalized procedure would render statements most in need of testing “in the crucible

of cross-examination,” Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, beyond the Clause’s

reach.19 It would be a strained interpretation of the historical record, therefore, to

18

Cobham actually wrote two letters “to the Lords, one on July 29, 1603, after his

examination before the Council on July 20. The other, which is much more damning, was written

just before trial, which occurred in November 1603. It explained away Cobham’s recantation of his

accusation as occasioned by two letters Raleigh was able to get to Cobham while he was in prison,

begging him to renounce his former statements. While the voluntariness of the statements may be

doubted, nothing in the proceedings indicated that the first letter was solicited by the Council and

the second was stated to be unsolicited.” Mosteller, Encouraging and Ensuring, at 545 (footnotes

omitted).

19

See Mosteller, Encouraging and Ensuring, at 571 & n.309 (“When statements are

accurately recorded in their entirety, then manipulation [by government officials] of what was said

is not possible. Interestingly, this particular concern is not eliminated--but exacerbated--by the

failure to record the statement when it is made, which a focus on formality in recording gets

54

conclude that the Framers would be content with the reading of out-of-court statements as

long as they had been given informally to a civilian acquaintance instead of formally to a

government official or agent.

¶74 Third, there is evidence that at the time of the framing, the legal community

understood that a person who made an accusation against the defendant was the

equivalent of a witness against him, though the statement was not made to a government

official or pursuant to a prescribed procedure. See Robert P. Mosteller, Remaking

Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse

Prosecutions, 1993 U. Ill. L. Rev. 691, 749 (1993) (hereinafter, “Mosteller, Remaking”).

For example, in King v. Brasier [(1779), 168 Eng. Rep. 202], an ordinary

criminal case decided in England a decade before the drafting of the

Confrontation Clause, the defendant was charged with rape of a

seven-year-old child and convicted on the testimony of the child’s mother

and another individual who related the accusations made to them by the

child immediately after she returned home following the assault. The child

was not sworn or produced as a witness at trial. The conviction was found

invalid because of the determination that “no testimony whatever can be

legally received except on oath,” a determination that unmistakably rested

on the conclusion that the child was effectively a witness against the

defendant despite her oral statement being offered through other witnesses.

This procedural infirmity was not forgiven even though the statement would

likely have been admitted under modern analysis as an excited utterance.

backward. For example, the court in People v. Cage said that because the statement to the officer

was not written down but recited from memory, the statement was non-testimonial. 15 Cal. Rptr.

3d 846, 857 (Ct. App. 2004)[, review granted, 19 Cal.Rptr.3d 824 (Cal. Oct. 13, 2004)]. In fact, the

possibility of governmental manipulation is even greater with informal statements because witnesses

are not constrained by contemporaneous written records that may check additions and

modifications.”) (n.308 omitted).

55

Mosteller, Remaking, at 749-50 (footnotes omitted). Professor Mosteller also points out

that “historical practice did not depend on whether the statement was made with a view

toward legal proceedings.” Mosteller, Remaking, at 750.

¶75 Fourth, pursuant to the procedural rules of our legal system, declarants are able to

“bear testimony” in informal extrajudicial settings. This is due to the fact that our legal

system generally places no greater restrictions upon a fact-finder in assessing testimony

given by a declarant in the form of out-of-court statements versus as a live witness in

court. In other words, a fact-finder may give the same weight to the statement “Joe

assaulted me” whether it is repeated by the declarant herself in court, repeated by a police

officer on the declarant’s behalf, or repeated by a private citizen on the declarant’s behalf.

And the same is true whether the statement is read from the declarant’s diary or from an

affidavit signed by the declarant. For this reason, it would be specious to define

“testimonial” as requiring governmental involvement or prescribed formalities in

obtaining the statement. See Richard D. Friedman, Confrontation: The Search for Basic

Principles, 86 Geo. L.J. 1011, 1039 (1998) (hereinafter, “Friedman, Basic Principles”)

(“The question of whether a statement made by a person out-of-court should be

considered testimonial--or put another way, whether the person should be considered a

witness in making the statement--is not exogenous to the legal system’s procedural rules.

Rather, the question depends crucially on those rules because to a large extent it depends

on the use that the system makes of the statement.”).

¶76 Lastly, the right of confrontation is expressed in general terms: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

56

against him.” U.S. Const. amend. VI (emphasis added). This language reflects a target

broader than just ex parte examinations by government officials or pursuant to formalized

procedures: the ability of a witness to bear testimony extrajudicially, not under oath, and

not subject to cross-examination, as did Lord Cobham.20 If examinations of witnesses by

government officials or pursuant to particular formalities were the only concern of the

Framers, then they surely would have drafted the Clause to reflect this, using narrower

language that more directly addressed such concerns (e.g., “the accused shall enjoy the

right to be confronted with the witnesses against him who have provided ex parte

testimony pursuant to formal examinations by government officials”).

¶77 Thus, the definition of “witnesses against” the accused does not turn on whether

the declarant made her statement to a government official or agent (whether of her own

initiative or pursuant to an interrogation) or in some prescribed manner, though these

factors are undoubtedly relevant to the inquiry. A declarant who, with anticipation that

her oral statement will be presented to the fact-finder at a criminal trial, entrusts a civilian

20

It is unclear, due to the vacillating nature of its opinion, whether the majority narrowly

construes the target of the Confrontation Clause as examinations of witnesses by government

officials. Compare ¶¶ 18, 19, 21, 27 (emphasizing the presence or absence of government agents,

and referring to recorded statements, elicited statements, official investigations, judicial-process-

created evidence, etc.) with ¶ 19 (“Thus, if just before trial a person shoved a written statement

under the courthouse door, asserting that the accused did in fact commit the crime, that would

plainly be testimonial even though no government official played a role in preparing the statement.”)

(internal quotation marks omitted) (quoting Richard D. Friedman, The Confrontation Clause Re-

Rooted and Transformed, 2004 Cato Sup. Ct. Rev. 439, 458). But, to the extent it is advocating a

government agent and/or formalized procedure standard, the majority is reading Crawford too

narrowly. The Court referred to the “use of ex parte examinations as evidence against the accused”

as a particularly heinous aspect of the civil-law mode of criminal procedure, which itself was

characterized only as the “principal” evil at which the Confrontation Clause was directed. See

Crawford, 541 U.S. at 50, 124 S.Ct. at 1363.

57

acquaintance to relay that statement is surely “bear[ing] testimony,” notwithstanding the

absence of governmental involvement in obtaining the statement or prescribed procedures

in recording it.

¶78 Furthermore, the meaning of “witnesses against” is not derived by reference to the

particular vices of the civil-law mode of criminal procedure that existed at the time of the

framing (ex parte examinations being the primary vice). See generally Mosteller,

Remaking, at 751-55.21 To hold otherwise would freeze application of the Clause to a

particular historical affront to the common law right of confrontation: the use of ex parte

examinations--and modern procedures which “bear a striking resemblance” thereto, such

as police interrogations, Crawford, 541 U.S. at 52, 124 S.Ct. at 1364--as evidence against

the accused. In other words, to say that the Confrontation Clause applies only to the

particular modes of collecting prosecutorial evidence which were known in 1791 (the

year the Sixth Amendment was ratified) and which the Framers rejected would leave

modern, functionally equivalent means of evading the common law right of confrontation

intact, and thereby leave the government free to employ such methods, a possibility the

Framers surely recognized but did not intend with the words “witnesses against.”

¶79 It is for this reason that “witnesses against” must be interpreted by reference to the

substance--as opposed to the form or manifestations--of the evil at which the

21

“[E]ven though opposition to the worst elements of the inquisitorial system motivated

acceptance of the Confrontation Clause, no affirmative evidence exists that the Framers intended

the clause to limit its reach only to the specific inquisitorial procedures. The best guide--the actual

words of the Sixth Amendment’s Confrontation Clause--do not carry such a message. Nevertheless,

there is strong reason to believe that the Framers intended the confrontation right to prevent such

procedures in particular.” Mosteller, Remaking, at 754.

58

Confrontation Clause was directed and which the failings of the civil-law mode of

criminal procedure represented. The many shortcomings of the inquisitorial system are

obvious. For instance, as the majority observes, denying the right of confrontation creates

risks of “possible prosecutorial misconduct and overzealousness,” ¶ 15, and “abuse [of]

the criminal justice system [by a declarant] in order to punish, to exact revenge on, or to

shift the blame to the defendant,” ¶ 16. See also Mosteller, Encouraging and Ensuring, at

569-71 (suggesting, with respect to police questioning of a declarant, “[t]hree broad

purposes” served by the Confrontation Clause: preventing “government[al] manipulation

of the witness in creating the evidence--manipulating the words uttered,” preventing

“governmental manipulation of the recording of the statement rather than manipulation of

what was said,” and “protect[ing] the defendant from malicious falsehoods or even errors

by the witness independent of governmental manipulation.”). In addition, the accused is

unable to explore the declarant’s motives in making the statement, the declarant’s direct

knowledge of the facts which the statement asserts as true, the declarant’s ability to have

observed and understood the events her statement represents, the declarant’s memory and

perception of her situation, and the declarant’s credibility. Cf. Crawford, 541 U.S. at 65-

67, 124 S.Ct. at 1372-73 (discussing the purposes cross-examination would have served

at Crawford’s trial).22

22

See also Mosteller, Remaking, at 753-54 (“Proof of the state’s case through ex parte

accusations is antithetical to the adversary system in three regards. First, the manner in which the

accusation is created is suspect--often secret and always one-sided. Second, the presentation of the

state’s case through such documents rather than by oral presentation of the witness is inconsistent

with face-to-face accusation. The historical record indicates that the drafters were not inclined to

permit trial by dossier. Third, the procedure denies the accused the right to cross-examine the

witnesses--to test their conscience about the accusation.”) (footnote omitted).

59

¶80 Furthermore, a third party witness who repeats a declarant’s hearsay statement at

trial inevitably does so through the filter of his or her own perceptions, prejudices, and

motivations. Nevertheless, because the witness is under oath, the declarant’s statement is

presumed by the fact-finder to be true. In other words, the hearsay statement itself takes

on the mantle of a sworn statement because the third party witness swears to the truth of

his or her recollection and rendition of the statement. Absent outright confabulation or

perjury, however, a witness testifies only to what he or she believes is the truth--i.e., his

or her perceived, subjective understanding of what he or she saw or heard. See State v.

Clifford, 2005 MT 219, ¶ 71, 328 Mont. 300, ¶ 71, 121 P.3d 489, ¶ 71 (Nelson, J.,

concurring). Granted, there may be cases in which the defendant will effectively cross-

examine a third party witness on issues of bias, powers of observation, ability to retain

and recall, etc.; however, doing so is not a sufficient substitute for cross-examining the

declarant. “Raleigh was, after all, perfectly free to confront those who read Cobham’s

confession in court.” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. Yet, “Raleigh’s trial

has long been thought a paradigmatic confrontation violation.” Crawford, 541 U.S. at 52,

124 S.Ct. at 1364.

¶81 Again, it is the right of the accused to test the truth and reliability of an out-of-

court statement “in the crucible of cross-examination” of the declarant, Crawford, 541

U.S. at 61, 124 S.Ct. at 1370, that the Framers enshrined in the Sixth Amendment. The

importance of adversarial testing--which underlies our entire legal system--cannot be

understated. In California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489,

the Court observed that

60

[c]onfrontation: (1) insures that the witness will give his statements under

oath--thus impressing him with the seriousness of the matter and guarding

against the lie by the possibility of a penalty for perjury; (2) forces the

witness to submit to cross-examination, the “greatest legal engine ever

invented for the discovery of truth”; [and] (3) permits the jury that is to

decide the defendant’s fate to observe the demeanor of the witness in

making his statement, thus aiding the jury in assessing his credibility.

Green, 399 U.S. at 158, 90 S.Ct. at 1935 (footnote omitted). It is not surprising,

therefore, that the common law right of confrontation and, thus, the Confrontation Clause

reflects a judgment, not only about the desirability of reliable evidence (a

point on which there could be little dissent), but about how reliability can

best be determined. Cf. 3 Blackstone, Commentaries, at 373 (“This open

examination of witnesses . . . is much more conducive to the clearing up of

truth”); M. Hale, History and Analysis of the Common Law of England 258

(1713) (adversarial testing “beats and bolts out the Truth much better”).

Crawford, 541 U.S. at 61-62, 124 S.Ct. at 1370 (ellipsis in original) (emphasis added).

¶82 Hence, guaranteeing the right to confront one’s accusers is the Framers’ response

to a system that permitted the use at trial of statements not subjected to adversarial

testing. Again, some of the shortcomings inherent in such a system are the inability of the

accused to probe inconsistencies or untruths in the declarant’s statement and to elicit

additional information from the declarant; the potential for misrepresentations

(inadvertent though they may be) on the part of the third party witness; the risk of

“prosecutorial misconduct and overzealousness,” ¶ 15; and the potential for “abuse [of]

the criminal justice system [by the declarant],” ¶ 16. This is not to say, however, that the

confrontation right arises only when these specific shortcomings are implicated (e.g., only

when there is a possibility for prosecutorial misconduct and/or declarant maliciousness).

As noted above, if the Clause’s reach were limited by strict reference to particular

61

manifestations or symptoms of the mode of criminal procedure rejected by the Framers,

then analogous inquisitorial practices would be free to flourish.

¶83 Rather, the confrontation right arises whenever the civil-law system itself is

implicated. See Crawford, 541 U.S. at 48, 124 S.Ct. at 1362 (“At the Massachusetts

ratifying convention, Abraham Holmes objected to [the omission in the proposed Federal

Constitution of a right of confrontation] precisely on the ground that it would lead to

civil-law practices . . . .”). This occurs when a declarant creates testimony without doing

so before the fact-finder under oath and subject to cross-examination by the accused. See

Crawford, 541 U.S. at 43-50, 124 S.Ct. at 1359-63. Cf. Mosteller, Encouraging and

Ensuring, at 514 (characterizing “the positive procedural goal of the confrontation right”

as “encouraging and ensuring that evidence is presented in the courtroom in the presence

of the accused and subject to adversarial testing”). Stated more generally, the substance

of the evil at which the Confrontation Clause was directed is the inequity and inaccuracy

inherent in a system of criminal procedure which precludes an accused from challenging

the reliability of the State’s evidence through meaningful confrontation and permits the

State to convict a person on the basis of testimony given extrajudicially. Cf. Mosteller,

Remaking, at 748 n.277 (characterizing “the historical evil” as “proof of charges by

statements from absent accusers”).

¶84 Thus, the Confrontation Clause ensures an adversarial system pursuant to which

testimony is given at trial. Given this purpose, an out-of-court declarant “bear[s]

testimony” or functions extrajudicially as a “witness[]” against the accused when she

understands, or should understand, that she is doing so or, independent of her

62

understanding, when the government is gathering evidence for possible prosecutorial use.

The evidence-gathering feature of functioning as a witness against the accused is reflected

in the first two formulations set forth in Crawford, which refer to “custodial

examinations,” “prior testimony,” and “depositions,” see Crawford, 541 U.S. at 51-52,

124 S.Ct. at 1364, as well as the Court’s extended discussion of pretrial examinations of

suspects and witnesses by justices of the peace or other officials, see Crawford, 541 U.S.

at 43-48, 124 S.Ct. at 1359-62, while the witness-understanding feature is reflected in

Crawford’s first and third formulations, which ask what a declarant would reasonably

expect concerning the prosecutorial use of her statements (first formulation) and whether

the statements were made under circumstances which would lead an objective witness

reasonably to believe that the statements would be available for use at a later trial (third

formulation). See Crawford, 541 U.S. at 51, 52, 124 S.Ct. at 1364.

¶85 All three formulations indicate that the proper focus is on the statement’s function

or evidentiary purpose, as opposed to its characteristics. See generally Friedman,

Grappling, supra note 2, at 3-6.23 In other words, did the statement, at the time it was

made, serve the function of in-court testimony? Professor Friedman proposes a general

definition of this function: “[The function of prosecution testimony], in rough terms, is

23

Professor Friedman points out that “[i]t . . . makes no sense to determine whether a

statement is testimonial by asking whether the statement shares key characteristics with trial

testimony. The very point of the Clause is to ensure that testimony will be given at trial, or at some

other proceeding that maintains the essential attributes of trial testimony. To say that a statement

is beyond the reach of the Confrontation Clause because the circumstances in which it was given

do not resemble a trial therefore turns logic on its head. It means that the more that a statement fails

to satisfy the conditions for testimony prescribed by the Confrontation Clause, the less likely the

Clause will address the problem.” Friedman, Grappling, at 3.

63

the transmittal of information for use in prosecution.” Friedman, Grappling, at 2. In light

of the foregoing discussion, whether an out-of-court statement is being transmitted for use

in prosecution depends on the nature of the statement, the circumstances under which it

was made, and to whom it was made.24 If, given these considerations, the declarant

should have anticipated that her statement would be used in a criminal proceeding, she

was functioning as a witness against the accused, and her statement is testimonial. (As

implicated by the standard itself, this is an objective inquiry, which will be discussed in

greater detail below. See ¶ 89, infra.) Furthermore, if the declarant was speaking to a

government agent who was generating testimony, her statement is testimonial regardless

of whether she recognized that purpose. See Mosteller, Encouraging and Ensuring, at

614, 624. Professor Mosteller points out that “the Framers feared the role of the

government in manipulating the statements received and would not have excused them if

the government deluded the witnesses or took advantage of their inadequate knowledge or

limited mental capacity.” Mosteller, Encouraging and Ensuring, at 624-25.

¶86 To state a definition of “testimonial” any narrower than the foregoing formulation

would afford the government ample opportunities to avoid Crawford’s mandate and the

right of confrontation through a variety of countermeasures.

24

As explained above, whether the statement at issue was made to a government official or

in a formalized manner or was obtained through a procedure that bears a “striking resemblance” to

examinations by justices of the peace in England,” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364, is

not talismanic. Rather, such characteristics relate to the circumstances or formalities under which

the statement was made and, as such, are merely informative of whether the declarant should have

anticipated that the statement would be used in a criminal proceeding.

64

[M]any of the indicators of testimonial statements[--e.g., they were made

pursuant to police interrogation, they are contained in formal, signed,

written documents, etc.--]can disappear. If such “cookbook” changes in

form can render the statements non-testimonial, avoidance of the restriction

of Crawford will prove relatively easy for many statements that are not

made to police officers, and if there is no Confrontation Clause protection

whatsoever for those statements, serious issues of justice as to problematic

accusatory statements will go unaddressed.

Mosteller, Encouraging and Ensuring, at 539-40. Stating a narrower definition also

would permit a declarant to act as a witness while escaping confrontation by the simple

expedient of making her statement in a manner less formal than the formalities implicated

by the first and second formulations set forth in Crawford or to anyone other than a

government agent. Professor Friedman, posits the following example:

A woman tells a counselor at a private shelter that she has been raped. The

counselor says:

Please make a statement for us. We will videotape it and send

the tape to the prosecutor. I anticipate that the prosecutor’s

office will use it at trial as the cornerstone of its case against

your assailant. The prosecutor won’t have to call you as a

witness, because that’s just not necessary any more . . . . The

accused might call you--but only if he dares, and only if

you’re then available. Which, so far as the law is concerned,

you needn’t be. [¶] Oh, and by the way, since you’re not

speaking under oath, don’t worry about the prosecutor going

after you for perjury.

Friedman, Basic Principles, at 1041.

¶87 If the woman in this example makes the statement and if it is then presented at

trial, she undoubtedly was acting as a “witness[] against” her assailant. She was

providing testimony in a manner to which the legal system is receptive; she anticipated

that her statement could (and would) be used testimonially; and the counselor essentially

65

acted as a conduit or an agent for the declarant. See Friedman, Basic Principles, at 1041.

The fact that the statement was not made to the authorities, or even at their instigation,

does not alter this conclusion. 25

¶88 But even if the declarant is not seeking to escape cross-examination, the result can

be no different. It is no less a Confrontation Clause violation to disallow confrontation

simply because the declarant’s motives (to the extent those motives are ascertainable) are

benign. While protecting the accused from “malicious falsehoods” perpetrated by the

declarant is one goal effectuated by the Clause, the Framers were equally concerned with

“unchecked witness error.” See Mosteller, Encouraging and Ensuring, at 571.

¶89 For this reason, the foregoing inquiry--whether the declarant should have

anticipated that her statement would be used in a criminal proceeding--is an objective

standard,26 which may be expressed in a number of ways. For instance, given the nature

25

Nor does the fact that the woman’s statement was not made under oath. The Supreme

Court specifically stated that “the absence of oath [is] not dispositive. Cobham’s examination was

unsworn, yet Raleigh’s trial has long been thought a paradigmatic confrontation violation.”

Crawford, 541 U.S. at 52, 124 S.Ct. at 1364 (citation omitted). See also Crawford, 541 U.S. at 52

n.3, 124 S.Ct. at 1365 n.3 (“We find it implausible that a provision which concededly condemned

trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK.”);

Friedman, Basic Principles, at 1042. (“The oath is one of the protections accorded the defendant,

providing some assurance that witnesses will not offer testimony without putting themselves at risk

for false statement. Assuming the statement was made with testimonial intent, the absence of an

oath is part of the problem; it should not be an excuse for admitting an accusatory statement that

suffers from yet another critical problem--the lack of opportunity for adversarial examination.”).

26

This standard is suggested by Crawford itself. The first formulation of “testimonial”

implicates an objective inquiry (“pretrial statements that declarants would reasonably expect to be

used prosecutorially”), while the third states the standard explicitly (“statements that were made

under circumstances which would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial”). See Crawford, 541 U.S. at 51, 52, 124 S.Ct. at 1364

(emphases added).

66

of the statement, the circumstances under which it was made, and to whom it was made,

would an objective declarant have believed that the statement would be available for use

at a later trial? This inquiry resembles Crawford’s third formulation.27 See Crawford,

541 U.S. at 52, 124 S.Ct. at 1364. Alternatively, should the declarant have understood at

the time she made her statement that there was a significant probability the statement

would be used prosecutorially? Or, because the declarant is deemed to have intended the

natural consequences of her actions, see Friedman, Grappling, at 6-7, was evidentiary use

of the statement in a criminal proceeding a natural consequence of the declarant’s

actions? See also U.S. v. Summers (10th Cir. 2005), 414 F.3d 1287, 1302 (“[W]e believe

27

The Supreme Court “[left] for another day any effort to spell out a comprehensive

definition of ‘testimonial.’ ” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. The majority infers from

this language a “tacit warning” against a court’s adopting the third (and, presumably, the first and

second) formulation set forth in Crawford. See ¶ 29. Yet, there is no such “warning” implicit in this

language (or anywhere else in the Crawford opinion, for that matter); it is merely an observation by

the Court that spelling out a comprehensive definition was unnecessary to resolve the Confrontation

Clause issue in Crawford, since Sylvia Crawford’s statement was “testimonial under any definition,”

Crawford, 541 U.S. at 61, 124 S.Ct. at 1370. Moreover, to conclude that the Court’s purpose in

setting forth the three formulations was not to give lower courts guidance in defining “testimonial”

beyond the specific examples set forth in its opinion, but rather to lead us astray in our attempts to

ascertain whether a statement is “testimonial,” is a preposterous reading of Crawford.

Notably, the majority itself cites with approval numerous courts which adopted and/or

applied one or more of the three formulations. See Horton v. Allen (1st Cir. 2004), 370 F.3d 75, 84

(cited at ¶ 17); U.S. v. Brun (8th Cir. 2005), 416 F.3d 703, 706-07 (cited at ¶ 20); People v.

Cervantes (Cal.App. 2 Dist. 2004), 12 Cal.Rptr.3d 774, 782-83 (cited at ¶ 21); State v. Rivera (Conn.

2004), 844 A.2d 191, 201-02 (cited at ¶ 21); Compan v. People (Colo. 2005), 121 P.3d 876, 880-81

(cited at ¶ 28); Bray v. Com. (Ky. 2005), ___ S.W.3d ___, 2005 WL 2317014, 2005 Ky. LEXIS 288

(cited at ¶ 30); State v. Krasky (Minn.App. 2005), 696 N.W.2d 816, 819-20 (cited at ¶ 30); People

v. Rincon (Cal.App. 2 Dist. 2005), 28 Cal.Rptr.3d 844, 857, 858 (cited at ¶ 30); State v. Staten

(S.C.App. 2005), 610 S.E.2d 823, 836 (cited at ¶ 30); State v. Blackstock (N.C.App. 2004), 598

S.E.2d 412, 420 (cited at ¶ 30); State v. Walker (Wash.App. Div. 1 2005), 118 P.3d 935, ¶¶ 21, 35

(cited at ¶ 30); State v. Moses (Wash.App. Div. 1 2005), 119 P.3d 906, ¶¶ 10, 22 (cited at ¶ 30); U.S.

v. Cromer (6th Cir. 2004), 389 F.3d 662, 675 (adopting and applying a test resembling the third

formulation set forth in Crawford) (cited at ¶ 16); Com. v. Gonsalves (Mass. 2005), 833 N.E.2d 549,

557-58, 561-62 (same) (cited at ¶ 30).

67

an objective test focusing on the reasonable expectations of the declarant under the

circumstances of the case more adequately safeguards the accused’s confrontation right

and more closely reflects the concerns underpinning the Sixth Amendment. Thus we hold

that a statement is testimonial if a reasonable person in the position of the declarant would

objectively foresee that his statement might be used in the investigation or prosecution of

a crime.”) (citation omitted).

¶90 Of particular relevance to this inquiry is whether the statement was accusatorial in

nature. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.”) (emphasis added);

Crawford, 541 U.S. at 43, 124 S.Ct. at 1359 (“The right to confront one’s accusers is a

concept that dates back to Roman times.”) (emphasis added); Crawford, 541 U.S. at 43,

124 S.Ct. at 1359 (Pre-trial examinations of suspects and witnesses by justices of the

peace or other officials “were sometimes read in court in lieu of live testimony, a practice

that ‘occasioned frequent demands by the prisoner to have his “accusers,” i.e. the

witnesses against him, brought before him face to face.’ ”) (emphases added); Crawford,

541 U.S. at 44, 124 S.Ct. at 1360 (“Suspecting that Cobham would recant, Raleigh

demanded that the judges call him to appear . . . . ‘Call my accuser before my face

. . . .’ ”) (second ellipsis in original) (emphasis added); Crawford, 541 U.S. at 47, 124

S.Ct. at 1362 (“Early in the 18th century, . . . the Virginia Council protested against the

Governor for having ‘privately issued several commissions to examine witnesses against

particular men ex parte,’ complaining that ‘the person accused is not admitted to be

confronted with, or defend himself against his defamers.’ ”) (emphases added); Crawford,

68

541 U.S. at 51, 124 S.Ct. at 1364 (“An accuser who makes a formal statement to

government officers bears testimony . . . .”) (emphasis added); California v. Green

(1970), 399 U.S. 149, 179, 90 S.Ct. 1930, 1946, 26 L.Ed.2d 489 (Harlan, J., concurring)

(“[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant

abuses, trials by anonymous accusers, and absentee witnesses.”) (emphasis added);

Mosteller, Encouraging and Ensuring, at 514 n.18 (“[I]f testimonial is defined using the

[third formulation] in Crawford and, appropriately interpreted, it will include most

accusatory hearsay.”); Mosteller, Remaking, at 747-49 (setting forth the historical basis

for interpreting the Confrontation Clause as applying to accusatorial statements in

particular).28 Indeed, our conclusion in State v. Carter, 2005 MT 87, 326 Mont. 427, 114

P.3d 1001, that the Intoxilizer 5000 certification reports were nontestimonial, is most

plausibly reconciled with the foregoing discussion of what constitutes a “testimonial”

statement on the ground that the statements represented by the certification reports (e.g.,

“This machine has been tested and/or calibrated and produces accurate results.”) are not

accusatory in nature. 29

28

Professor Mosteller notes that “[t]he proposed amendments to the Constitution that James

Madison introduced in the First Congress would have guaranteed the right ‘to be confronted with

his accusers, and the witnesses against him.’ The reference to accusers was perhaps dropped from

the final version because, with the addition of the term against him, it was seen as redundant. By

contrast . . . , the Georgia Constitution of 1877 granted a differently phrased and clearly more

limited right: ‘shall be confronted with the witnesses testifying against him.’ [¶] There is certainly

no indication that the historical evil of proof of charges by statements from absent accusers had been

abandoned by the Framers. The most reasonable interpretation is that protection against that danger

was believed to be accomplished through the phrase witnesses against.” Mosteller, Remaking, at

748 n.277 (citations omitted).

29

For this reason, the majority’s treatment of Carter, see ¶ 22, is somewhat baffling, as is

its apparent hostility to the idea that the accusatory nature of a statement is relevant to the

69

“testimonial” inquiry, see ¶ 30. As noted above (see note 15), we explained in Carter that the

Intoxilizer 5000 certification reports “are not substantive evidence of a particular offense, but rather

are foundational evidence necessary for the admission of substantive evidence. In other words, the

certification reports are nontestimonial in nature in that they are foundational, rather than substantive

or accusatory.” Carter, ¶ 32. Not surprisingly, therefore, Mizenko proffers that all out-of-court

statements are “testimonial” if they are (1) substantive and (2) accusatorial. See ¶ 12. The majority

rejects this formulation as “overly broad” because “it would require courts to exclude more evidence

than the Sixth Amendment requires.” ¶ 12. We are not immediately told what makes Mizenko’s

formulation “overly broad”--perhaps it is the substantive prong, perhaps it is the accusatorial prong,

perhaps it is both prongs, or perhaps it is their simultaneous application--however, the majority

enlightens us later in the opinion where it states that “the author of the certification report” was not

a “ ‘witness[] against’ ” Carter and then reiterates that the certification reports at issue in Carter

were nontestimonial “because ‘not substantive evidence of a particular offense.’ ” ¶ 22.

Hence, three explanations have been proffered for why the certification reports were found

to be nontestimonial in Carter: (1) they are foundational, not substantive, evidence of a particular

offense, (2) they are not accusatorial in nature, and (3) the person making the statements reflected

by the certification reports is not a witness “against” the defendant. As to the first theory, Black’s

defines “substantive evidence” as “[e]vidence offered to help establish a fact in issue, as opposed

to evidence directed to impeach or to support a witness’s credibility.” Black’s Law Dictionary 599-

600 (8th ed. 2004). While the majority’s theory (that an out-of-court statement is nontestimonial

when offered for a purpose other than to establish a fact in issue) is “appealing in its clarity and ease

of application,” ¶ 12, a more exhaustive analysis of Crawford and the right of confrontation than we

found necessary to conduct in Carter reveals that the “testimonial” inquiry does not depend on

whether the statement at issue is offered to establish a fact in issue. There is no indication in

Crawford that a statement is exempted from Confrontation Clause scrutiny if it is used

foundationally to establish the admissibility of other evidence. Rather, the question of whether a

“testimonial” inquiry is necessary turns on whether the out-of-court statement is offered to prove

the truth of the matter asserted. See Crawford, 541 U.S. at 60 n.9, 124 S.Ct. at 1369 n.9 (“The

Clause . . . does not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted.”).

Furthermore, the majority cites no post-Crawford authority for its theory other than Carter

which, as explained above (see note 15), relied on pre-Crawford Montana law in defining

“testimonial” for purposes of the statements at issue. See Carter, ¶¶ 32, 34. Granted, the majority

analogizes the Intoxilizer 5000 certification reports to business records, immigration records, and

medical records. See ¶ 22. However, the reason such records are nontestimonial in a run-of-the-mill

case is not because they are “not substantive evidence of a particular offense,” which in many cases

they are. Rather, it is because the “nature” of such statements places them in the nontestimonial

category. See Crawford, 541 U.S. at 56, 124 S.Ct. at 1367. Professor Mosteller ably explains this

distinction as follows:

[T]here is no theoretical basis to assume that, simply because a statement falls within

a modern-day hearsay exception, it was intended to be excluded from protection

under the Confrontation Clause if that particular statement has testimonial

70

characteristics. Rather, the Court’s treatment [of several hearsay exceptions in

Crawford as non-testimonial] probably was meant to say that, because of the specific

requirements of the particular hearsay exceptions, most statements within them

would not meet the testimonial definition. . . .

An examination of business records and statements in furtherance of a

conspiracy is helpful in suggesting an important indicator of when statements are

non-testimonial and which particular statements, even though falling within a

modern hearsay exception, should be treated as testimonial. That indicator is

whether the statement is made for the purpose of accusing, or whether it is made for

another purpose associated with other ordinary human activities.

Some business records may concern matters that are understood at the time

they were made to be destined for litigation or may be clearly accusatory. However,

at their core, they involve employees, who are recording matters that are ordinary,

routine, and related to performing their job functions.

Mosteller, Encouraging and Ensuring, at 546, 547-48 (emphasis added) (footnotes omitted).

The cases cited by the majority (see ¶ 22) support Mosteller’s interpretation. See U.S. v.

Cervantes-Flores (9th Cir. 2005), 421 F.3d 825, 830, 832, 833 (The “certificate of nonexistence of

record,” which was offered “to prove that Cervantes had not received the Attorney General’s

consent to reenter the United States,” is “nontestimonial in nature because it closely resembles a

business record.” The certificate “certifies the nonexistence of a record within a class of records that

themselves existed prior to the litigation, much like business records.”) (emphasis added); U.S. v.

Garner (6th Cir. 2005), 148 Fed.Appx. 269, 270, 274 (unpublished) (“[T]he [medical] records at

issue were prepared at Garner’s request and were submitted by her in order to obtain benefits. The

physicians involved were not preparing their reports in the context of a criminal prosecution [for

mail fraud, making false statements to obtain federal employees’ compensation, and making false

statements to obtain Social Security disability benefits], and had no reason to ‘anticipate [their]

statement[s] being used against [Garner] in investigating and prosecuting the crime.’ ”) (some

alterations in original).

As noted above, the majority offers an additional explanation for why the Intoxilizer 5000

certification reports were nontestimonial: “the author of the certification reports” was not a

“ ‘witness[] against’ ” Carter because “hearsay provided for foundational purposes is not evidence

‘against’ the defendant.” ¶ 22. It is highly doubtful that Carter considered the author of the

certification report to be a witness for him; thus, the majority has created a new class of “neutral”

prosecutorial witnesses who are not subject to Confrontation Clause scrutiny--perhaps because their

out-of-court statements are “so trustworthy that adversarial testing can be expected to add little to

[their] reliability,” White, 502 U.S. at 357, 112 S.Ct. at 743. Yet, the majority’s theory presupposes

that there is no way to effectively cross-examine evidence offered for foundational purposes, an

assertion belied by the fact of Carter’s appeal. Moreover, all evidence offered by the prosecution

at trial--even evidence to establish the competence and credibility of its witnesses--is for the purpose

of obtaining a conviction; if not, the evidence is likely irrelevant. The majority provides neither

authority nor reasoning for the proposition that evidence of a prosecution witness’s (e.g., the

71

¶91 Given these principles, it will often be the case that a person accusing someone of

a crime is a “witness[],” as contemplated by the Confrontation Clause, see King v.

Brasier, supra ¶ 74, and that statements made by a person claiming to be the victim of a

crime and describing that crime are “testimonial,” see Friedman, Basic Principles, at

1042-43. See also Mosteller, Encouraging and Ensuring, at 608 n.548 (“If we are to

imagine the Framers’ reaction to practices that did not exist at the time, we could imagine

few practices that would have been more abhorrent to their values than the concept of a

Intoxilizer 5000’s) competence is not evidence “against” the accused as that term is used in the Sixth

Amendment, and Carter was not written with this characterization in mind. Rather, the opinion

reflects our judgment, based on State v. Delaney, 1999 MT 317, 297 Mont. 263, 991 P.2d 461, that

“the certification reports are nontestimonial in nature in that they are foundational, rather than

substantive or accusatory.” Carter, ¶ 32. As explained above, the foundational/substantive

distinction does not find support in the history and formulations set forth in Crawford, which

suggests that the remaining theory--that the statements are not accusatory in nature--provides the

proper basis for our holding in Carter.

But even if we accepted the majority’s theory that “hearsay provided for foundational

purposes is not evidence ‘against’ the defendant,” ¶ 22, the reason such statements would not be

evidence “against” an accused is that they are not of an accusatory nature. Specifically, the

statements represented by the certification reports, which were offered to prove the truth of the

matter asserted (i.e., that the Intoxilizer 5000 functioned properly), did not accuse Carter--or anyone

else, for that matter--of something unlawful. Rather, they related only to the machine’s operation.

See Delaney, ¶ 18 (distinguishing an annual certification form for the Intoxilizer 5000, which was

used for foundational purposes in Delaney, from a report of the chemical analysis of drugs, which

was used substantively in State v. Clark, 1998 MT 221, 290 Mont. 479, 964 P.2d 766, on the ground

that “[t]he information in the annual certification form was not accusatory in the same manner as

the chemical analysis in Clark”) (emphasis added).

Accordingly, the most plausible explanation for why, under Crawford, the certification

reports at issue in Carter were nontestimonial is that the statements represented by those reports--

which, as the majority observes, were made in anticipation of prosecutorial use at trial, see ¶ 22--

were not of an accusatory nature. See Carter, ¶ 32. See also Mosteller, Encouraging and Ensuring,

at 575 (“As to all hearsay statements, those made for purposes other than testimony, or more

generally prosecutorial court use, or those that are non-accusatory, can properly be excluded from

a testimonial concept.”) (emphasis added). Therefore, the majority’s attempt to distinguish

“witnesses against” from “accusers” is misguided, and its inexplicable contempt for the accusatorial

factor of the “testimonial” inquiry is unsound.

72

prosecution through the out-of-court accusations of a victim who was not compelled,

even if available, to take the stand and make those charges in person to the defendant.”).

This is particularly true when the declarant is speaking to a person in whom there is little

or no expectation of confidentiality, since it would not be reasonable in such circumstance

to anticipate that statements accusing someone of a crime and/or describing a crime will

not be further transmitted for use at trial as evidence against the accused.

¶92 On the other hand, if such statements were made under circumstances in which the

declarant had a reasonable expectation of confidentiality--e.g., during a conversation with

a private mental health professional within the confines of the doctor-patient privilege--

then the declarant reasonably could expect that the statements would not be introduced at

a later trial. As such, they would be nontestimonial. The same is true of the statement,

“If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now,”

Dutton v. Evans (1970), 400 U.S. 74, 77, 91 S.Ct. 210, 214, 27 L.Ed.2d 213 (plurality

opinion), made by Evans’ coconspirator (Williams) during the concealment phase of their

conspiracy. See Crawford, 541 U.S. at 57, 124 S.Ct. at 1368 (characterizing the

foregoing hearsay statement at issue in Dutton as “not testimonial”).30 Though Williams’

30

Evans and Williams were charged with the murders of three police officers in Georgia.

Shaw, a prosecution witness at Evans’ trial, testified that he and Williams had been fellow prisoners

at the time Williams was arraigned. Shaw said that “when Williams was returned to the penitentiary

from the arraignment, he had asked Williams: ‘How did you make out in court?’ and that Williams

had responded, ‘If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this

now.’ Defense counsel objected to the introduction of this testimony upon the ground that it was

hearsay and thus violative of Evans’ right of confrontation.” The objection was overruled and

Williams’ hearsay statements were admitted “upon the basis of a Georgia statute that provides:

‘After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during

the pendency of the criminal project shall be admissible against all.’ ” See Dutton, 400 U.S. at 77-

78, 91 S.Ct. at 213-14.

73

statement may have been accusatorial in nature (the jury was “invited to infer that

Williams had implicitly identified Evans as the perpetrator of the murder when he blamed

Evans for his predicament,” Dutton, 400 U.S. at 88, 91 S.Ct. at 219), it “contained no

express assertion about past fact,” Dutton, 400 U.S. at 88, 91 S.Ct. at 219, it was made to

a “fellow prisoner[],” Dutton, 400 U.S. at 77, 91 S.Ct. at 214, and making it was “against

[Williams’] penal interest,” Dutton, 400 U.S. at 89, 91 S.Ct. at 220. As such, it cannot be

said that Williams should have anticipated that the statement would be used in a criminal

proceeding against Evans.

¶93 Similarly, statements (even those that are accusatorial) made to family members,

friends, and other intimates, in whom there is typically an expectation of privacy or

confidentiality, will frequently be nontestimonial. As Professor Mosteller points out,

the vast majority of statements made to private individuals are made for a

purpose other than creating evidence . . . . Such statements are typically

made to convey information to accomplish other purposes, or for no real

purpose other than to share the burden of an emotional event. Moreover,

most statements made to private individuals tend to be made without any

anticipation by the speaker that the statement will be conveyed beyond the

immediate audience, let alone that it will be used at trial.

Mosteller, Encouraging and Ensuring, at 573. On the other hand, if it appears from the

circumstances that the declarant should have understood that her statements to a family

member, friend, acquaintance, etc. would be conveyed beyond that person, then the

statements are testimonial.

¶94 As the foregoing discussion and examples illustrate, the nature of the out-of-court

statement, the circumstances or formalities under which it was made, and to whom it was

made all inform the reasonable anticipation or expectation of the declarant as to whether

74

her statement will be used for evidentiary purposes. The reasonable anticipation or

expectation of the declarant, in turn, determines whether the declarant was functioning as

a “witness[] against” the accused and, ultimately, whether her statement was

“testimonial.”

¶95 Professor Mosteller “suggest[s] one dividing line. When a statement is accusatory

and intended to be conveyed beyond those who would be expected to keep it

confidential--to government agents, private agencies that perform government functions,

and strangers at arms length from the witness--it should be considered testimonial.”

Mosteller, Encouraging and Ensuring, at 544. I find this conception to be a useful

guideline; however, I believe the proper focus should be on what the circumstances would

lead an objective witness reasonably to believe, see Crawford, 541 U.S. at 52, 124 S.Ct.

at 1364, not on the declarant’s subjective intent, which is frequently difficult, if not

impossible, to ascertain in the declarant’s absence. Cf. U.S. v. Cromer (6th Cir. 2004),

389 F.3d 662, 675 (“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.”) (emphasis

added). For this reason, I also do not subscribe to Professor Mosteller’s corresponding

suggestion (which the majority apparently approves, see ¶ 23 & n.3) that when a

statement was made to a strictly private party, “the burden can properly be placed on the

defendant to show that it was for a testimonial purpose.” Mosteller, Encouraging and

Ensuring, at 544. See also Mosteller, Encouraging and Ensuring, at 572. Absent

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confrontation, a d

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