08 March 2011

The Primary Purpose Test (PPT):
Discerning the Moment of Non-Testimoniality

The most difficult part of a trial court's job in the future may well be deciding exactly when an interrogation at an emergency scene morphs from non-testimonial to testimonial. After all, a competent officer faced with a dying victim is only doing his job when he tries to find out information which could lead to the capture and conviction of the murderer.

Certain questions are going to be obvious when an officer arrives at the scene and someone is shot, knifed, beaten, etc. Who did it? Where is the person who did it? When did it happen? These are the minimal questions that an officer will ask that should always pass constitutional muster. The officer must secure the scene to protect, the victim, himself, civilians, and other emergency responders (like EMT's). The bare minimum knowledge is the location of the dangerous person, if the activity is close enough in time to be ongoing and a way to identify the attacker. Next come the questions in the gray area. What happened? Why? These are going to be fertile grounds for millions of arguments across the U.S. between prosecutors and defense counsel. How an attack happened (up close and personal v. at sniper range) can be very important in determining how the officer will react to the emergency. The trick for judges will be determining how far the officers can go in this direction before it crosses the line. After all, when the victim tells an officer that he saw the attacker take the pistol out of his grandmother's cookie jar before shooting the victim, it's going to be a stretch to say that the statement is dealing with the emergency. The why question/answer may be the hardest to justify allowing into court. It may be useful to know that the attacker stabbed the victim because she found out he was cheating on her. It may indicate that the attacker is not interested in hurting others. However, in dealing with a potential ongoing emergency situation, the officer will still have to treat her as though she is a danger to herself and others. Therefore, the why question strikes me as the most unlikely to be admitted to court.

Of course, it will never be quite so easy as distinct questions/answers: who where, when, what and why. The questions will be intermixed and answers will be even more intermixed than the questions. Of course, in Virginia our Court of Appeals has already ruled that dying declarations are non-testimonial, so the majority of the cases involving this sort of thing will sail through Virginia trial courts.

Part 3 of 4 - part 4 will be posted 3 p.m. Tuesday.

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