Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”
http://www.indianalawjournal.org/articles/34/1/Testing-the-Testimonial-Concept-and-Exceptions-to-Confrontation-aA-Little-Child-Shall-Lead-Thema/Page1.html
Robert P. Mosteller
Chadwick Professor of Law, Duke University.By Robert P. Mosteller
Published on 10/6/2007
The pattern that has emerged from cases involving children is one largely of
continuity in admitting statements received under Roberts—except as to statements from children to police officers and those closely analogous—where exclusion under Crawford and Davis is now relatively uniform. The most significant development in analysis in recent cases is the focus on the purpose of the questioner, which in many situations simply provides a clearer explanation for an unchanged result.
Statements for medical purposes are universally received. This result is buttressed by Davis’s questioner-purpose analysis. However, the nontestimonial treatment, while generally appropriate even for statements of identity during the initial medical assessment, should not, despite a medical label, continue for subsequent examinations where the prosecutorial purpose likely predominates.
continuity in admitting statements received under Roberts—except as to statements from children to police officers and those closely analogous—where exclusion under Crawford and Davis is now relatively uniform. The most significant development in analysis in recent cases is the focus on the purpose of the questioner, which in many situations simply provides a clearer explanation for an unchanged result.
Statements for medical purposes are universally received. This result is buttressed by Davis’s questioner-purpose analysis. However, the nontestimonial treatment, while generally appropriate even for statements of identity during the initial medical assessment, should not, despite a medical label, continue for subsequent examinations where the prosecutorial purpose likely predominates.