These cases raise the question of how to determine whether evidence is "testimonial" for purposes of the Confrontation Clause, and thus inadmissible at trial unless the defendant has an opportunity to cross-examine the witness whose "testimony" is being offered by the prosecution. The ACLU brief urges the Court to adopt an objective standard under which a statement would be treated as "testimonial" if a reasonable person under the circumstances would understand that the statement could be used for criminal investigation or prosecution. DECIDED
Two years ago, the Supreme Court ruled that the Confrontation Clause bars the admission of "testimonial" statements unless the witness is available for cross-examination. Since then, the lower courts have been divided on whether statements to police officers responding to a domestic violence complaint, or statements to a 911 operator reporting a domestic violence incident, should be treated as testimonial. In its friend-of-the-court brief, the ACLU urges that the relevant inquiry is whether a reasonable person under the circumstances would understand that any accusatory statement could be used for criminal investigation or prosecution, and that critical evidence was admitted in both of these cases that should have been excluded under the ACLU's proposed standard. At the same time, our brief points out that there are a variety of strategies that can and should be employed in response to domestic violence that can enhance the likelihood of successful prosecutions without abridging a defendant's rights under the Confrontation Clause.