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Testimonial and non-testimonial statements

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� (NIV1984). In light of that Scripture, elaborate how you would change or not change your


-Provide at least 1 reference and 1 Scripture in support of your post.


Testimonial and non-testimonial statements

While the appellant did not attend the trial, she was able to transmit a photograph and
some text, which in any case does not warrant to be used as evidence against the defendant.
However, it was presented as evidence of the linkages between the appellant and her ex-husband.
The scripture states that one person cannot be used as sufficient evidence to criminalize a
person’s wrongdoing. Instead, Deuteronomy 19:15 asserts that at least two witnesses can provide
sufficient evidence against a case in a court of law (Jonakait, 2005).

The defendant can dismiss the litigant’s claim asserting that presenting a photograph and
text without affording him the opportunity to cross-examine the defendant violates his Sixth
Amendment right to challenge the plaintiff as defined by the U.S. Supreme Court in Adrian
Martell Davis v. Washington. In this circumstance, the court can dismiss the case arguing that
the photograph and text cannot be used as testimony. In short, the Confrontation Clause of the 6 th
Amendment does not approve non-testimonial statements and does not therefore qualify to be
used as evidence at trial. The photograph and the text provided to 911 were intended to help the
police determine an ongoing emergency, as opposed to being used as testimony to a past crime
(Lininger, 2005).

The bench can, therefore, uphold the view that under this backdrop, the content cannot
act as testimony. While her not appearing at trial was warranted by the Sixth Amendment, the

content was insufficient to prosecute the defendant because the motives may be crooked. The
photograph and text were prohibited. The Adrian Martell Davis v. Washington altered hostility
analysis. Its existing effect was immediate and substantial in the justice system on the evidence
termed as irrelevant (Raeder, 2007).


Lininger, T. (2005). Prosecuting Batterers After Crawford. Virginia Law Review, 747-822.
Jonakait, R. N. (2005). ‘Witnesses’ in the Confrontation Clause: Crawford v. Washington, Noah
Webster, and Compulsory Process. NYLS Legal Studies Research Paper, (05/06), 2.

Raeder, M. S. (2007). Domestic Violence Cases After Davis: Is the Glass Half Empty or Half
Full. JL & Pol’y, 15, 759.

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