Testimonial and non-testimonial statements


Locate and read the U.S. Supreme Court case of Adrian Martell Davis v. Washington, 547 U.S. 813 (2006) No. 05-5224.

Assume the following facts:

After leaving a bar, a woman enters her car in a darkened parking garage. She is confronted by her ex-husband, against whom she has a domestic no-contact order. She attempts to dial 911 from her cellular telephone, but is unable to make a connection. Amazingly, she is able to take a photograph with her phone and send an accompanying text message, asking for assistance to a law enforcement friend. The officer and woman exchange text messages about who is assaulting her and where she is located until the ex-husband flees. The woman is unable to appear at trial and the defendant moves to suppress the “statements” at his trial for felony violation of the no-contact order.
• Given the above facts, and using the Court’s rationale for distinguishing “testimonial” and “non-testimonial” statements, state whether the text message and photograph should be admitted as evidence at trial and why.
• According to Deuteronomy 19:15, “One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses” (NIV 1984). In light of that scripture, elaborate how you would change or not change your answer.
• Provide at least 1 reference and 1 scripture in support of your post.

U.S. Supreme Court case of Adrian Martell Davis v. Washington, 547 U.S. 813 (2006) No. 05-5224.

Sample paper

Testimonial and non-testimonial statements

The defendant has the right to move to court and propose a motion to suppress hearing. A motion to suppress hearing in a court appearance where the plaintiff and the defendant can argue whether the evidence presented in the court against the defendant should be thrown out or whether it can stand depending on the defendant’s constitutional rights. If the defendant’s rights are violated, the suppress motion is passed through. The confrontational clause of the sixth amendment provides “In all prosecutions the accused shall enjoy the right…. to be confronted with witnesses against him” the plaintiff can confront the evidence exhibited in the court of law in three different ways that include the defendant’s right to be present, both physically and mentally, the defendant’s right to live testimony and the right to challenge witness testimony segment of the confrontation clause.

In Crawford vs. Washington, 541 U.S 36 (2004), the Supreme Court stated that a testimonial statement is only admissible when the plaintiff of the person who made the declaration in not available and the defendant had had an early chance to cross-examine the plaintiff.  The defendant is given the power and authority by the sixth amendment to confront the person who offers the testimony. Testimonial statements are not on restricted to the statements made in court by the witness considering that the defendant has a right to examine a hearsay, but the defendant has no right and authority to confront the declarants who have made non-testimonial statements (Bellin, n.d.,). It is worth noting that only statements made willingly in the court of law are subjected to this analysis. On the other hand, when the police officers obtain information through the question, the information extracted is non-testimonial when the events show that the basic reason for the questioning is to address an ongoing emergency.

According to statistics, most individuals in this technology era are using cell phones to text and relaying messages to the receiver. Thus, applying the confrontation clause and making sure that the defendant’s rights to live testimony or to challenge a witness’s testimony in becoming increasingly important in courts of law. The major concern in this era is whether communication through the use of emails, texts or the internet is admissible based on the testimonial and non-testimonial argument.

In the case above, I feel one of the biggest concerns for the defense is determining if the text and the photograph sent to the police officer came from the victim. Given the fact that anyone could have taken the victim’s cell phone and send a photo taken on an earlier occasion to the police, it is difficult to tell if the texts and the picture were genuine. However, considering that the victim managed to take a picture of her or her ex-husband, it is easy to tell that she was sending the message and that the message was not sent wrongly. Notably, the details included in her texts to the police officer regarding the situation she was in, it is easy to tell to tell whether her ex-husband was posing an imminent danger or she was just paranoid. Additionally, the language used by the plaintiff in the text to his police friend can help in determining the authenticity of the text (Ross & Knowles, 2011,). For example, she could have used nicknames and other words that she and her police friend only understood and knew their meaning which would clearly show that the message was genuine. If the messages were meant to convince the police friend to get her some help considering that her 911 call did not go through, the statement would be considered non-testimonial since there are no indications that it was self-serving or solicited. Electronic communication can help to extract powerful evidence if used in the right manner considering that all the messages in these devices appear to be preserved in their original form (Schornhorst, n.d.,). Since the texts sent to the police friend are in the original form and are in the unguarded moment, they should be considered to be reliable and admitted into the evidence. Besides, the unavailability of the plaintiff in the court of law can raise several questions such as: why is she not in the court? Did her ex-husband threaten her not to testify? Or did the prosecution choose not to present her in the court of law?

According to the scriptures, one a witness is not enough to convict a suspect since the witness can make a mistake concerning the defendant.  Multiple witnesses make sure that the prosecution or the defense gets the fact of the case straight. In this case, the photo taken can be used as the second witness since it will prove that the ex-husband was there. Thus, there will be two pieces of evidence word of mouth from the woman and the photo on her phone.  Moreover, the plaintiff was given a no-contact order by the court of law and the mere presence of her ex-husband at the parking is an offense. Moreover, the Bible states that “The Lord tests the righteous, but his soul hates the wicked and the one who loves violence” in Psalms 11:5 which shows the man is already guilty.


Bellin, J. (n.d.). Applying Crawford’s Confrontation Right in a Digital Age. SSRN Electronic Journal. doi:10.2139/ssrn.2055838

Ross, D. L., & Knowles, F. E. (2011). Expanding the Confrontation Clause and Testimonial Hearsay Statements: Michigan v. Bryant. Criminal Justice Review, 36(3), 375-386. doi:10.1177/0734016811415027

Schornhorst, F. T. (n.d.). Litigating Crawford v. Washington: ‘Testimonial’ Hearsay, and the Right to Confrontation and Cross Examination. SSRN Electronic Journal. doi:10.2139/ssrn.2278342