State v. Wilcoxon , 185 Wash. 2d 324 ( 2016 )

González, J.

¶32 (concurring) I agree with the lead opinion that Bruton⁴ and the confrontation clause did not apply to the out-of-court statements at issue before us. A threshold question in determining when the confrontation clause applies is whether the out-of-court statement was procured by the government. We should treat statements that were not procured by the government as presumptively nontestimonial. Thus, their admissibility should be governed by the rules of evidence, not the confrontation clause.

¶33 In Crawford, the United States Supreme Court noted that the confrontation clause applies to “ ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)). “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. The Supreme Court further explained the label “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial[,] and to police interrogations.” Id. at 68. When the primary purpose of the government procured statement is to establish or prove past events potentially related to a criminal prosecution, the statement is testimonial and subject to a confrontation clause analysis. See, e.g., Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

¶34 On the other hand, statements not procured by the government bear “little resemblance to the civil-law abuses the Confrontation Clause targeted.” Crawford, 541 U.S. at 51. These statements are “less likely to be testimonial” than statements made to the government for the primary purpose of aiding a potential criminal prosecution. Ohio v. Clark, _ U.S. _, 135 S. Ct. 2173, 2182, 192 L. Ed. 2d 306 (2015). I would hold that a statement that is not procured by the government is presumptively not testimonial. Aside from explicitly testimonial contexts, absent some evidence showing that a statement was given or procured as evidence to be used in a later criminal prosecution, the confrontation clause should presumptively not apply. If the confrontation clause does not apply, then the admissibility of those statements is governed by traditional rules of evidence. Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); see Davis, 547 U.S. at 821.

¶35 The statements at issue in this case were not procured by the government as they were merely “casual remarkfs] to an acquaintance.” Crawford, 541 U.S. at 51. The statements are presumptively nontestimonial, and there was no evidence at the time the statements were made to suggest that they would be used in a later criminal prosecution. The confrontation clause does not apply. Accordingly, I concur.

Fairhurst, J., concurs with González, J.

4 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).