Toward a unified theory of testimonial evidence under the fifth and sixth amendments

Temple Law Review

Volumn 80, Issue 4, 2007, Pages 1135-1201

  Mannheimer, Michael J Zydney ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 67649743499     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (476)

1. Doe v. United States, 487 U.S. 201, 210 (1988) (defining "testimonial" for purposes of Self-Incrimination Clause).
2. Davis v. Washington, 126 S. Ct. 2255, 2273-74 (2006) (defining "testimonial" for purposes of Confrontation Clause).
3. quot;No person shall... be compelled in any criminal case to be a witness against himself U.S. CONST, amend. V.
4. quot;In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." Id. amend. VI.
5. See generally Howard W. Gutman, Academic Determinism: The Division of the Bill of Rights, 54 S. CAL. L. REV. 295 (1981) (examining whether use of compartmentalized law school curricula for studying Bill of Rights has broad ramifications on substantive legal development). Similar observations were later made by Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131,1131-32 (1991), and Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063,1064-65 (1999).
6. See Gutman, supra note 5, at 322-27 (examining effect of compartmentalized law school curriculum and interrelationship among pedagogy, scholarship, and development of substantive legal doctrine).
7. Gutman specifically discusses how treating Confrontation Clause jurisprudence as a field of evidence law rather than of constitutional law has stunted its development. Id. at 331-43.
8. Both Clauses have been held to bind the States as well as the federal government via the Due Process Clause of the Fourteenth Amendment. See Pointer v. Texas. 380 U.S. 400, 406 (1965) (applying Confrontation Clause to States); Malloy v. Hogan, 378 U.S. 1, 7 (1964) (applying Self-Incrimination Clause to States). There are compelling arguments why the Clauses should not apply to the States in the same way that they constrain the federal government. E.g., George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145, 221 (2001) (arguing persuasively that different standards should govern with respect to criminal procedure provisions of Bill of Rights depending on whether federal or state action is at issue). Nonetheless, this Article assumes that the conventional view is correct and that the same constraints equally bind state and federal action.
9. U.S. CONST, amend. V (emphasis added).
10. Id. amend. VI (emphasis added).
11. See infra Part I.A for a discussion of the term "testimonial" as it is used in the Self-Incrimination Clause context.
12. The term "assertions of fact or value" is borrowed from Kent Greenawalt's use of the term in a different context. See KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 43 (1989) ("When we think about communications evidently covered by the justifications for freedom of speech, what immediately come to mind are assertions of fact and value.").
13. See infra Part I.B for a discussion of the Confrontation Clause's "contemplation of litigation" requirement.
14. S. 436 (1966).
15. S. 450 (1979).
16. As Josephine Ross has noted in the Sixth Amendment context, "the concept of testimonial is intrinsically intertwined with the concept of 'witness.' . . . Whether a statement was testimonial is the same as asking whether the person who made the statement was a witness against the defendant at the trial." Josephine Ross, After Crawford Double-Speak: "Testimony" Does Not Mean Testimony and "Witness" Does Not Mean Witness, 97 J. CRIM. L. & CRIMINOLOGY 147, 162 (2006). Michael Pardo aptly observes: The word testimony has become a term of constitutional importance. Indeed, it has become an important doctrinal term in the fields of evidence and criminal procedure. Whether a communication is deemed to be testimonial is the key issue for delineating the scope of both the Confrontation Clause and the privilege against self-incrimination. Michael S. Pardo, Testimony, 82 TUL. L. REV. 119,165 (2007) (citations omitted).
17. Ronald J. Allen & M. Kristin Mace, The Self-lncrímination Clause Explained and Its Future Predicted, 94 J. CRIM. L. & CRIMINOLOGY 243, 246 (2004); Michael S. Pardo, Disentangling the Fourth Amendment and the Self-Incrimίnation Clause, 90 IOWA L. REV. 1857, 1868 (2005); see also Fisher v. United States, 425 U.S. 391, 408 (1976) (discussing doctrinal requirements for establishing violation of Fifth Amendment).
18. See Schmerber v. California, 384 U.S. 757, 761 (1966) (excluding blood analysis from Self-Incrimination Clause protection because it was not testimonial but rather physical evidence); Holt v. United States, 218 U.S. 245, 252 (1910) (finding that requiring defendant to try on shirt to demonstrate identity was not compulsion of testimonial evidence in violation of Self-incrimination Clause); IV JOHN H. WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 2264, at 3123 (1905) ("[I]t is not merely compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion").
19. S. 245 (1910).
20. Holt, 218 U.S. at 252.
21. Id.
22. Id. at 252-53.
23. S. 757 (1966).
24. Schmerber, 384 U.S. at 761.
25. Id.
26. Id. at 764 (internal quotation marks omitted); accord Pennsylvania v. Muniz, 496 U.S. 582, 591 (1990) (reaffirming distinction between "testimonial" and "real or physical evidence" (internal quotation marks omitted)).
27. E.g., United States v. Euge, 444 U.S. 707,718 (1980) (holding that handwriting exemplars are nontestimonial and therefore not protected by privilege against self-incrimination); Gilbert v. California, 388 U.S. 263, 266-67 (1967) ("A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the] protection [of the Self-Incrimination Clause].").
28. E.g., United States v. Dionisio, 410 U.S. 1, 7 (1973) ("[C]ompelled production of the voice exemplars in this case would [not] violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said.").
29. E.g., United States v. Wade, 388 U.S. 218, 222 (1967) ("[C]ompelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.").
30. See Doe v. United States, 487 U.S. 201, 209 (1988) ("[T]he act of production could constitute protected testimonial communication because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic." (citing United States v. Doe, 465 U.S. 605, 613 & n.11 (1984); Fisher v. United States, 425 U.S. 391, 409-10, 428, 432 (1976)); William J. Stuntz, Self-Incrimination and Excuse, 88 COLUM. L. REV. 1227, 1277 (1988) ("[T]he privilege protects only the testimonial aspects of the act of producing [a] document and not the document itself."). The Court has recognized that the act-of-production doctrine extends to all forms of physical evidence, not just documentary evidence. See Bait. City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 554-56 (1990) (acknowledging that court order compelling mother to produce her infant child implicated act-of-production doctrine); Richard A. Nagareda, Compulsion "To Be a Witness" and the Resurrection of Boyd, 74 N.Y.U. L. REV. 1575, 1656 (1999) (discussing Court's application of act-of-production doctrine to nondocumentary physical evidence).
31. Doe, 487 U.S. at 210; accord Muniz, 496 U.S. at 590-92 (holding that defendant's slurred speech was not testimonial and was therefore insufficient for invocation of Fifth Amendment privilege against self-incrimination); see also JOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT: RESTRICTIONS UPON ITS DISCOVERY OR COMPULSORY DISCLOSURE § 2.04, at 22 (1959) ("[N]o actions save those embodied in or equivalent to declarations of fact, opinion, belief, and so on would be deemed self-incriminating."). The standard for determining whether evidence is "testimonial" for these purposes has been stated in several slightly different ways. See, e.g., Allen & Mace, supra note 17, at 247 ("[T]he government may not compel disclosure of the incriminating substantive results of cognition that themselves ... are the product of state action."); Michael S. Pardo, Neuroscience Evidence, Legal Culture, and Criminal Procedure, 33 AM. J. CRIM. L. 301, 330 (2006) ("[T]he government may not compel for use as evidence the content of a suspect's propositional attitudes."). Over and above the core idea that the Self-Incrimination Clause is concerned only with assertions of fact or value, a more precise articulation of the assertion requirement is immaterial to the claims made by this Article.
32. Doe, 487 U.S. at 211 (quoting 8 JOHN H. WIGMORE, EVIDENCE § 2265, at 385 (1961)).
33. Muniz, 496 U.S. at 595 n.9; see also Doe, 487 U.S. at 210 n.8 ("Petitioner has articulated no cogent argument as to why the 'testimonial' requirement should have one meaning in the context of acts, and another meaning in the context of verbal statements.").
34. Muniz, 496 U.S. at 595 n.9; see also Doe, 487 U.S. at 209 (stating that privilege "applies to acts that imply assertions of fact"); B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S. CAL. L. REV. 597, 612 (1970) (advocating view that testimonial evidence includes "any non-verbal physical conduct used as a means of conveying ideas").
35. Schmerber v. California, 384 U.S. 757, 765 (1966); accord Muniz, 496 U.S. at 591; see also EDMUND M. MORGAN, BASIC PROBLEMS OF STATE AND FEDERAL EVIDENCE 147 (5th Jack B. Weinstein ed. 1976) (suggesting that privilege should apply to all communicative conduct that would result in accused exhibiting qualities of witness before trier of fact); Dann, supra note 34, at 609 ("[Schmerber's] participation ... did not involve his testimonial capacities.").
36. U.S. CONST, amend. VI.
37. See Ross, supra note 16, at 160 (observing that language of Clause suggests either that "criminal defendants only have a right to cross-examine those witnesses who actually appear at trial" or that they have right to cross-examine "all hearsay declarants").
38. Crawford v. Washington, 541 U.S. 36,42-43 (2004).
39. S. 36 (2004).
40. Crawford, 541 U.S. at 50-51.
41. See id. at 42-43 ("One could plausibly read 'witnesses against' a defendant to mean . . . those whose statements are offered at trial...." (citations omitted)).
42. See id. at 51 (noting that not every incidence of hearsay implicates Sixth Amendment).
43. S. 56 (1980), abrogated by Crawford, 541 U.S. 36.
44. Roberts, 448 U.S. at 63; see also Ross, supra note 16, at 160 (noting that strict reading of Roberts made any declarant a witness under Sixth Amendment).
45. See Ross, supra note 16, at 161 (noting that Roberts created no absolute right of defendant to confront accuser).
46. Roberts, 448 U.S. at 66.
47. See Crawford, 541 U.S. at 72 (Rehnquist, C.J., concurring) ("[W]e have never drawn a distinction between testimonial and nontestimonial statements.").
48. Id. at 51 (majority opinion) (alteration in original) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
49. Id.
50. Id. at 56 n.7 (emphasis added).
51. S. Ct. 2266 (2006). Except when referring specifically to the facts of one case or the other, this Article refers to these cases collectively as "Davis."
52. Davis, 126 S. Ct, at 2270-71.
53. Id. at 2272.
54. Id. at 2273-74.
55. Id. at 2273.
56. The Supreme Court, 2005 Term-Leading Cases, 120 HARV. L. REV. 213,217 (2006).
57. Id. at 219.
58. Richard D. Friedman, Grappling with the Meaning of "Testimonial," 71 BROOK. L. REV. 241, 252-53 (2005) [hereinafter Friedman, Grappling]. Following Davis, Friedman has noted that "Davis is perfectly compatible with a general test based on the anticipation of a reasonable person in the position of the declarant." Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. & POL'Y 553,561 (2007) [hereinafter Friedman, Way Beyond].
59. Davis, 126 S. Ct. at 2273-74 (emphasis added).
60. This restriction should probably not be read too strictly. It is true that Davis was unclear whether the test "exempts statements when the declarant knows that he is getting someone into trouble with the police but does not realize that the statement will actually be used at trial." Ross, supra note 16, at 179. Yet, given that the test Davis posits is an objective one, it makes sense to view the circumstances from the perspective of someone with a basic familiarity of the American criminal justice system in which "getting someone into trouble with the police" is but the first step on the road to a criminal prosecution. See id. at 180 (suggesting that most 911 callers at least recognize that their statements will result in summoning of police with purpose of arresting or prosecuting). Moreover, because most criminal cases do not go to trial, it is useful to think about whether the statement was made for purposes of criminal prosecution generally, not simply a criminal trial. See Friedman, Grappling, supra note 58, at 250 (noting that extensive pretrial criminal procedure may yield evidence that can secure conviction before trial). Thus, Ross correctly notes that the question that should be asked is "whether it is reasonable to expect that the information will be used against the accused in some way by law enforcement." Ross, supra note 16, at 180; see also Alexander J. Wilson, Note, Defining Interrogation Under the Confrontation Clause After Crawford v. Washington, 39 COLUM. J.L. & SOC. PROBS. 257, 295 (2005) (explaining that only reasonable expectation, not certainty, of trial is required in determining that statement is testimonial). In addition, it is likely that a statement made in contemplation of civil litigation would qualify as testimonial. This seems the better view given that the formality and solemnity that attend the giving of information in that context approximates that which attends the provision of testimony in a criminal trial. In addition, the contrary view would render testimony actually provided in a civil proceeding nontestimonial for purposes of the Confrontation Clause merely because the objective circumstances did not indicate that the testimony might later be repeated in a criminal proceeding, a result that seems anomalous. Cf. Friedman, Grappling, supra note 58, at 249-50 n.26 (suggesting rule that statements made in anticipation of civil litigation should generally be considered testimonial, but acknowledging that anticipation of prosecutorial use may also be required). Accordingly, this Article assumes that statements made in contemplation of civil litigation are testimonial within the meaning of Davis and thus identifies the requirement from Davis as a "contemplation of litigation" requirement, not a "contemplation of prosecution" requirement.
61. Davis, 126 S. Ct. at 2274.
62. Tom Harbinson, Crawford v. Washington and Davis v. Washington's Originalism: Historical Arguments Showing Child Abuse Victims' Statements to Physicians Are Nontestimonial and Admissible as an Exception to the Confrontation Clause, 58 MERCER L. REV. 569, 632 (2007); see also Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511, 600 (2005) (noting Crawford Court's implication that statements made pursuant to solicitation of medical treatment should not be considered testimonial); Elizabeth J. Stevens, Comment, Deputy-Doctors: The Medical Treatment Exception After Davis v. Washington, 43 CAL. W. L. REV. 451, 470 (2007) ("[T]he Davis test's 'logic would seem to apply as well to statements whose primary purpose is to seek medical treatment, even where medical personnel are asking questions that also gather investigative details.'" (quoting Lisa Kern Griffin, Circling Around the Confrontation Clause: Redefined Reach but Not a Robust Right, 105 MICH. L. REV. FIRST IMPRESSIONS 16, 18 (2006), http://students.law.umich.edu/mlrEirstimpressions/voll05/griffin.pdf)).
63. Harbinson. supra note 62, at 632.
64. Pardo, supra note 16, at 177. Pardo's recent piece is an important exception, one that provides an epistemic account of testimony as a matter of both constitutional and subconstitutional law. Unlike this Article, however, Pardo does not seek to explain current jurisprudence and, instead, argues for significant changes to the law. A more fleeting attempt to conform the use of the term "testimonial" in the two contexts can be found in Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 194-95 (2004) (Stevens, J., dissenting). There, Justice Stevens argued that a disclosure of identity, compelled by a police officer, was "testimonial" for purposes of the Fifth Amendment because, pursuant to the Sixth Amendment, the term "'applies at a minimum ... to police interrogations.'" Id. (omission in original) (quoting Crawford v. Washington, 541 U.S. 36, 68 (2004)). This assertion, however, elides the two distinct uses of the term "testimonial" in the two contexts, for a request by a police officer that a suspect roll up his sleeve to disclose whether he has a tattoo matching that of the perpetrator of a crime would call for "testimonial" evidence in the Sixth Amendment sense but not the Fifth Amendment sense.
65. Adam S¡fberlight, Confronting a Testimonial Definition in a Post-Crawford Era, 29 AM. J. TRIAL ADVOC. 65,69 (2005).
66. Randolph N. Jonakait, "Witnesses" in the Confrontation Clause: Crawford v. Washington, Noah Webster, and Compulsory Process, 79 TEMP. L. REV. 155,169 (2006).
67. Id. at 171.
68. See id. (arguing that uniformity of meaning of "witness" throughout Constitution would render Crawford Court's Sixth Amendment use of "witness" incorrect).
69. See AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 128-29 (1997) (suggesting that meanings of word "witness" in Self-Incrimination and Confrontation Clauses should be consistent with one another). See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (articulating interpretive technique of comparing Constitution's use of same and similar language in different places in document).
70. See Nagareda, supra note 30, at 1580 (arguing that definition of "witness" in Fifth Amendment context is actually more closely synonymous with someone who "give[s] evidence").
71. See United States v. Hubbell, 530 U.S. 27, 49 (2000) (Thomas, J., joined by Scalia, J., concurring) (noting support for notion that Fifth Amendment privilege protects accused from compelled production of any incriminating evidence). Nevertheless, as Richard Uviller wrote: "[I]t is difficult to imagine that these two venturesome Justices can convince at least three colleagues to overrule Schmerber . . . ." H. Richard Uviller, Foreword: Fisher Goes on the Quintessential Fishing Expedition and Hubbell Is Off the Hook, 91 J. CRIM. L. & CRIMINOLOGY 311, 324 (2001). At the least, they are unlikely to find an ally in the newest member of the Court. See Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. PITT. L. REV. 27,78 (1986) (arguing that Fifth Amendment does not protect against compelled production of documents, even as to act of production).
72. Nagareda, supra note 30, at 1605 (arguing that Self-Incrimination Clause phrase "to be a witness" should be interpreted in same way as phrase "to give evidence," which appeared in contemporaneous sources (internal quotation marks omitted)).
73. Id. at 1613 (arguing against "apply[ing] the same definition of the word 'witness' for purposes of confrontation and self- incrimination").
74. Id. at 1605-07 (recognizing reasonable reluctance of legal scholars and professionals to equate Fifth Amendment phrase "to be a witness" with the phrase "to give evidence" used in state sources).
75. Id. at 1605 (quoting New York, North Carolina, Pennsylvania, Rhode Island, and Virginia ratification proposals); accord Hubbell, 530 U.S. at 52-53 (Thomas, J., concurring) (noting that drafts of state proposals for Bill of Rights included wording for provision that would "protect a citizen from 'be[ing] compelled to give evidence against himself" (quoting Virginia proposal)).
76. Nagareda, supra note 30, at 1606 ("[A]t the time of the founding, all of the state constitutions to address the problem of compelled self-incrimination spoke in terms of a right against compulsion either 'to give evidence' or, equivalently, 'to furnish evidence.'" (footnote omitted) (quoting eighteenth-century state constitutions of Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Vermont, and Virginia)); see also Hubbell, 530 U.S. at 52 (Thomas, J., concurring) (noting that, at time of Constitution's ratification, numerous States had provisions protecting citizens against "compulsion 'to give evidence' or 'to furnish evidence'" (quoting eighteenth-century state constitutions of Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, and Vermont)).
77. See, e.g., Akhil Reed Amar & Renée B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857, 919 (1995) (asserting that difference in language demonstrates difference in meaning).
78. Nagareda, supra note 30, at 1607 ("If contemporary observers had understood [James] Madison's handiwork to make a substantive change to the proposals uniformly put forward by the state ratifying conventions, one would expect to find at least a peep of objection."); see also Hubbell, 530 U.S. at 53 (Thomas, J., concurring) (noting that Madison's phrasing of Fifth Amendment attracted no state opposition).
79. Nagareda, supra note 30, at 1608.
80. Id. at 1619; see also Hubbell, 530 U.S. at 51 (Thomas, J., concurring) (arguing that common law privilege against self-incrimination protected against "compelled production of incriminating physical evidence").
81. Nagareda, supra note 30, at 1617 (noting this "common practice" in England and America beginning in sixteenth century); see also John H. Langbein, The Privilege and Common Law Criminal Procedure: The Sixteenth to Eighteenth Centuries, in THE PRIVILEGE AGAINST SELF-INCRIMINATION: ITS ORIGINS AND DEVELOPMENT 82, 90-92 (1997) (discussing practice in England); Eben Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in THE PRIVILEGE AGAINST SELF- INCRIMINATION: ITS ORIGINS AND DEVELOPMENT, supra, 109, 114-17 (discussing identical procedure used in American colonies, which continued well into eighteenth century); E.M. Morgan, The Privilege Against Self-Incrimination, 34 MINN. L. REV. 1, 18 (1949) (discussing English practice).
82. See Nagareda. supra note 30, at 1616 (warning against limiting Fifth Amendment protections to those existing in eighteenth century).
83. See id. at 1613-14 (arguing that use of same definition of "witness" in both Confrontation and Self-Incrimination Clauses would yield absurd results).
84. Id. at 1614.
85. See, e.g.. FED. R. EVID. 901(a) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.").
86. See supra note 30 and accompanying text for a discussion of the act-of-production doctrine.
87. The Confrontation Clause ensures that the defendant is permitted not only a formal but also a substantive right to conduct cross-examination. See Delaware v. Van Arsdall. 475 U.S. 673, 678-79 (1986) (holding that Confrontation Clause was violated when court prohibited defense from conducting entire line of inquiry on cross-examination). Accordingly, the Confrontation Clause undoubtedly includes some right to inspect physical evidence prior to trial. See AMAR, supra note 69, at 95 ("The confrontation clause says that the accused has a right to observe and examine the government's witnesses, but surely the accused must also have a right to observe and examine the government's physical evidence . . . ."). What is critical, however, is that there is no independent right to "confront" physical evidence but only a right to do so that is ancillary to the core Confrontation Clause right to confront the testimonial evidence that accompanies physical evidence into the record at trial.
88. See Pardo, supra note 17, at 1889 (equating use of act of production against criminal defendant to using contents of defendant's mind, which constitutes compelled self-incrimination).
89. S. 409 (1985).
90. Street, 471 U.S. at 411.
91. Id. at 411-12.
92. Id. at 412.
93. Id. at 413-14.
94. FED. R.EVID. 801(c).
95. See Jerome C. Latimer, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under the Confrontation Clause, 36 SETON HALL L. REV. 327,339 (2006) ("When a prosecutor uses a testimonial statement for non-hearsay purposes, it is the fact of the utterance that gives it its probative value, not its truth.").
96. Street, 471 U.S. at 414 (emphasis omitted).
97. Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004); see also Latimer, supra note 95, at 338 ("The Confrontation Clause does not preclude non-hearsay uses of testimonial statements against an accused."); Mosteller, supra note 62, at 516 ("[T]he Confrontation Clause does not bar the use of statements, even if testimonial, if they are used for purposes other than establishing the truth of the matter asserted."); cf. Pardo, supra note 16, at 176 (disagreeing with Davis Court's "suggest[ion] that testimonial statements may ... be a subset of hearsay statements"). According to the view set forth in this Article, the language used in Crawford and by some of the commentators is technically imprecise: if a statement is offered and used for purposes other than establishing the truth of the matter asserted, it is by definition not "testimonial."
98. Student commentator Stephen Aslett has recently argued that Street does not "broadly hold[] that all nonhearsay is exempt from the Confrontation Clause" but only that "when a defendant refers to otherwise inadmissible out-of-court statements, he waives his Confrontation Clause rights and 'opens the door' for the state to introduce the out-of-court statements for rebuttal purposes." Stephen Aslett, Comment, Crawford's Curious Dictum: Why Testimonial "Nonhearsay" Implicates the Confrontation Clause, 82 TUL. L. REV. 297, 325-36 (2007). While Aslett makes an interesting point, I believe he is incorrect. First, he points to Justice Brennan's concurring opinion, joined by Justice Marshall, that appears to limit the Court's holding in the way Aslett describes. Id. at 325 (citing Street, 471 U.S. at 417-18 (Brennan, J., concurring)). Nevertheless, the concurrence commanded the votes of only two Justices, and the Court nowhere responds to Justice Brennan's characterization of the Court's holding, a silence that is insolubly ambiguous. In addition, Aslett places Street in the category of cases in which "a criminal defendant's confrontation rights can be waived on equitable grounds." Id. at 326. Street is not a good fit for this category, though, for when a defendant waives (or, more typically, forfeits) his Confrontation Clause rights, testimonial evidence can be introduced against him for any purpose, while the Street Court relied heavily on the fact that the evidence was admitted only for a nonhearsay purpose. Aslett also notes that "Tennessee even argued in its brief... that Street was an 'opening the door' case." Id. Yet, this was a secondary argument Tennessee made. Brief for the Petitioner at 18-20, Street, 471 U.S. 409 (No. 83-2143), 1984 WL 565901. Its primary argument was that, as the Court ultimately held, nonhearsay does not implicate the Confrontation Clause because the testimonial capacities of the declarant are not at issue: Because the wording and contents of the confession, and not its truth, had become the relevant inquiry, there would have been no utility in cross-examining [the co-defendant] on the confession's reliability. Even if the confession had been shown to be completely false or involuntarily made, its relevance and evidentiary weight would have been just as strong on the issue of whether Street was forced to imitate it at the time of his own statement. Id. at 17. Furthermore, though some lower courts may have characterized Street, prior to Crawford, as an "opening the door" case, Aslett, supra, at 326, in Crawford, the Supreme Court itself, albeit in dictum, characterized Street as broadly holding that nonhearsay does not implicate the Confrontation Clause at all, Crawford, 541 U.S. at 59 n.9. Finally, Aslett relies heavily on the argument that the category of hearsay in 1791 included all out-of-court statements, not just those offered to prove their truth. Aslett, supra, at 311-21. Nonetheless, his historical analysis is weakened greatly by his failure to cite even a single case, from the framing period or otherwise, in which a statement that we would consider nonhearsay was excluded from evidence on hearsay grounds. Though a historical analysis of the evolution of hearsay is beyond this Article's scope, it appears more likely that an assertion requirement for hearsay was implicit in the definition in 1791 and that the contemporary sources Aslett cites were imprecise in their language because of the widely shared assumption that statements not offered for their truth were not considered hearsay.
99. James W. Jennings, Note, Preserving the Right to Confrontation- A New Approach to Hearsay Evidence in Criminal Trials, 113 U. PA. L. REV. 741,747 (1965).
100. See Alfredo Garcia, The Winding Path of Bruton v. United States: A Case of Doctrinal Inconsistency, 26 AM. CRIM. L. REV. 401, 432 (1988) (asserting that Street's ability to cross-examine sheriff who took codefendant's confession provided to Street all the Confrontation Clause required); Latimer, supra note 95, at 340 (noting that probative value of nonhearsay statement hinges on credibility of person reporting statement "who is in court and available for cross-examination").
101. See, e.g., Jennings, supra note 99, at 747 ("Both the right to confrontation and the hearsay rule reflect the belief that some evidence which might be of probative value should not be admitted unless the declarant has actually appeared in court and has been cross-examined with regard to his sincerity, memory, perception, and ability to communicate.").
102. S. 436 (1966).
103. S. 222 (1971).
104. S. 582 (1990).
105. S. 409 (1985). See supra notes 89-101 and accompanying text tor a discussion of Street's holding that introduction of a statement violates the Confrontation Clause only when it is introduced to prove the statement's truth.
106. Miranda, 384 U.S. at 467.
107. Id. at 444.
108. Harris, 401 U.S. at 223.
109. Id.
110. Id. at 225-26.
111. Id. at 224.
112. See Walder v. United States, 347 U.S. 62, 65 (1954) (holding that government can use illegally obtained evidence to impeach defendant's statements on direct examination).
113. Harris, 401 U.S. at 225.
114. Id. The Court later extended the impeachment exception to cover statements made as a result of interrogation after the suspect asserted the right to counsel. See Oregon v. Hass, 420 U.S. 714, 722 (1975) ("We see no valid distinction to be made in the application of the principles of Harris to that case and to Hass' case.").
115. See, e.g., Martin R. Gardner, Section 1983 Claims Under Miranda: A Critical View of the Right to Avoid Interrogation, 30 AM. CRIM. L. REV. 1277, 1289-90 (1993) (criticizing Harris for using Fourth Amendment reasoning out of context); Michael J. Zydney Mannheimer, Coerced Confessions and the Fourth Amendment, 30 HASTINGS CONST. L.Q. 57, 127 (2002) (arguing that Harris's reliance on Fourth Amendment jurisprudence is misplaced because Fourth Amendment's text differs greatly from Fifth Amendment's Self-Incrimination Clause); Pardo, supra note 17, at 1860 (noting that Fourth Amendment rationales are improperly used in Fifth Amendment analysis).
116. See Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 MICH. L. REV. 907, 910 (1989) (endorsing view that exclusionary rule is remedial device designed to protect substantive Fourth Amendment right); Mannheimer, supra note 115, at 126-27 (same).
117. See Loewy, supra note 116, at 908-09 (asserting that prominent theory behind Fourth Amendment is that evidence is excluded to deter future police impropriety); Mannheimer, supra note 115, at 126 (discussing how exclusion as remedy to Fourth Amendment violation is enforced only where deterrence value outweighs probative value of such evidence).
118. Mannheimer, supra note 115, at 127.
119. See Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 YALE L.J. 1198,1214 (1971) (criticizing use of cost-benefit analysis in Miranda context); Gardner, supra note 115, at 1289-90 (same); Loewy, supra note 116, at 925-26 (same); Mannheimer, supra note 115, at 127 (same); see also Pardo, supra note 17, at 1860 (discussing how "Fourth Amendment rationales, concerns, and concepts get mistakenly imported into Fifth Amendment analysis").
120. Donald Dripps, Is the Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis, 17 CONST. COMMENT. 19,34 (2000).
121. Doe v. United States, 487 U.S. 201, 210 (1988).
122. Harris v. New York, 401 U.S. 222,223 (1971).
123. Dripps, supra note 120, at 35. I have previously advocated that Harris be overruled as inconsistent with the language of the Self-Incrimination Clause. See Mannheimer, supra note 115, at 128 (arguing that Harris's holding failed to account for language of the Self-Incrimination Clause and is inconsistent with Miranda's presumption of coercion). Nevertheless, I have since achieved a better appreciation of what
124. See supra Part II.B.1 for an analysis of the assertion requirement in the Confrontation Clause.
125. S. 582 (1990).
126. Muniz, 496 U.S. at 586.
127. Id.
128. Id.
129. Id. at 600. Allen and Mace argue that it is erroneous to characterize this as the holding of the Court because the fifth vote for the majority was supplied by Justice Marshall, who would have held more broadly that all the evidence produced by Muniz in response to police questions or actions, including that which was clearly nontestimonial pursuant to a conventional analysis, was inadmissible. Allen & Mace, supra note 17, at 274-76; see also Pardo, supra note 31, at 331 (agreeing with Allen and Mace). These arguments have some force. See Sonja R. West, Concurring in Part and Concurring in the Confusion, 104 MICH. L. REV. 1951, 1954 (2006) ("When it is self-evident that the rationale of the primary opinion does not hold the support of five justices, it should not be treated as a majority, no matter how many justices allegedly concurred."). Because the ultimate resolution of the "sixth birthday" question issue does not affect this Article's examination of Muniz, the actual holding of Muniz is beyond the scope of this Article.
130. Muniz, 496 U.S. at 599.
131. Id. at 599 n.13.
132. Id. at 606 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part).
133. Id. at 599 n.13 (plurality opinion).
134. Id. at 607 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part).
135. Muniz, 496 U.S. at 607-08.
136. Id. at 608.
137. S. 454 (1981).
138. Estelle, 451 U.S. at 469. In Estelle, statements made by a criminal defendant at a compulsory psychiatric examination, conducted to determine whether he was competent to stand trial, were used at his penalty phase hearing to prove he posed a future danger and therefore was deserving of the death penalty. Id. at 456-60,464 & n.9.
139. Id. at 463-64.
140. Brief for the Petitioner at 36-37, Estelle, 451 U.S. 454 (No. 79-1127); see also Robert H. Aronson, Should the Privilege Against Self-Incrimination Apply to Compelled Psychiatric Examinations?, 26 STAN. L. REV. 55,68 (1973) ("A number of courts .... maintain that words spoken in answer to a psychiatrist's questions are not sought for their factual content[] but as an indication of the state of the defendant's mind."); Marianne Wesson, The Privilege Against Self-Incrimination in Civil Commitment Proceedings, 1980 Wis. L. REV. 697,706-07 (observing that view "that a defendant's statements in the course of an examination are [nontestimonial] when admitted regarding an issue related to the defendant's mental condition. . . . rests on the linguistic argument that statements are testimonial only when offered to prove the truth of their contents"); Note, Requiring a Criminal Defendant to Submit to a Government Psychiatric Examination: An Invasion of the Privilege Against Self-Incrimination, 83 HARV. L. REV. 648, 654 (1970) ("Those arguing for the constitutionality of psychiatric examinations have often characterized them as gathering physical evidence.").
141. Estelle, 451 U.S. at 464.
142. See Wesson, supra note 140, at 709 (arguing that statements made during psychiatric examinations should be considered testimonial even when used to determine defendant's mental state because "in many cases an examiner is interested in the objective accuracy of a subject's statements"); Note, supra note 140, at 658 (observing that "it is likely that many defendants would try to affect the diagnosis of their mental state," in that those suffering from mental illness often try to mask their disorders while some "[s]ane defendants ... try to feign insanity").
143. Marianne Wesson presciently drew this comparison a decade before Muniz was decided: If an examiner asks a subject the month and year and the subject intentionally misstates them to create an impression of disorientation, the examiner may be misled. It is not the falseness of the answer that misleads, for the examiner knows the month and year, but the falseness of the implicit representation that the subject does not know. Wesson, supra note 140, at 710. This is not to say that the Court in Muniz should have considered the statement testimonial. Although "[c]onsiderable evidence exists that the psychiatric examination has a tendency to elicit untrue or unreliable evidence," id., thus supporting the holding in Estelle, there is little reason to doubt Muniz's sincerity in his lack of knowledge of the date of his sixth birthday, especially if, as was likely the case, he knew that a lack of knowledge would be incriminating, see Allen & Mace, supra note 17, at 269-70, 276 (asserting that statements in Estelle were testimonial while statement in Muniz was nontestimonial); Pardo, supra note 31, at 331 ("[T]he psychiatric examination in Estelle and the sixth-birthday question in Muniz provide an example on each side of the 'testimonial' line.").
144. Surprisingly few have recognized the connection between the Self-Incrimination Clause's assertion requirement and the law of hearsay. See, e.g., Pardo, supra note 16, at 184 (drawing connection between term "testimonial" in Self-Incrimination Clause context and its relation to hearsay); Wesson, supra note 140, at 707 (noting that Clause's testimonial/nontestimonial distinction has its roots in hearsay doctrine); see also United States v. Baird, 414 F.2d 700, 709 (1969) (holding that defendant who relied on theory that self-serving statements to psychiatrist were admissible as nonhearsay because they were not offered for their truth was estopped from arguing that other statements to psychiatrist offered by prosecution were testimonial for purposes of Self-Incrimination Clause).
145. See Edward W. Hinton, States of Mind and the Hearsay Rule, 1 U. CHI. L. REV. 394, 397-98 (1934) (explaining view that no hearsay arises from admitting statement "I am the Emperor Napoleon" if it is offered to show speaker's mental state rather than to prove speaker is Napoleon).
146. IGMORE, EVIDENCE § 1790 (1976).
147. MCCORMICK ON EVIDENCE § 274, at 233 (John W. Strong ed" 4th ed. 1992).
148. See Note, Public Opinion Surveys as Evidence: The Pollsters Go to Court, 66 HARV. L. REV. 498,502 & n.29 (1953) (explaining that statement "I believe I am the Pope" is hearsay if it is offered to prove nature of speaker's belief).
149. See MORGAN, supra note 35, at 147 (explaining and distinguishing Wigmore's perspective).
150. See Hinton, supra note 145, at 397-98 (explaining that, where sanity of testator is at issue, absurd statement may be hearsay because it implies assertion of belief).
151. See Miranda v. Arizona, 384 U.S. 386, 444 (1966) (requiring warnings to dissipate coercion inherent in custodial interrogation).
152. See New York v. Quarks, 467 U.S. 649, 651 (1984) (establishing public safety exception to Miranda). For a discussion of the public safety exception to Miranda, see infra Part Π.C.l.a.
153. See Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990) (plurality opinion) (recognizing routine booking question exception to Miranda). For a discussion of the routine booking question exception to Miranda, see infra Part Π.C.1.b.
154. See Illinois v. Perkins, 496 U.S. 292, 300 (1990) (holding that undercover officer posing as inmate need not administer Miranda warnings prior to questioning). For a discussion of the Perkins exception to Miranda, see infra Part II.C.1.c.
155. S. 649 (1984).
156. Quarks, 467 U.S. at 651-52.
157. Id. at 652.
158. Id.
159. Id. at 651.
160. See Mannheimer, supra note 115, at 118 (observing that Quarles Court used "the same cost/benefit analysis employed in determining whether the Fourth Amendment exclusionary rule should be employed in a particular instance").
161. Quarles, 467 U.S. at 656.
162. See id. at 656-57 (finding that Miranda Court decided that protection for Fifth Amendment privilege outweighed cost to society).
163. Id. at 657.
164. Id. at 657-58.
165. See supra notes 106-07 and accompanying text for a discussion of the Miranda Court's view that coercion is inherent in all custodial interrogations.
166. See, e.g., Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (stating that privilege "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used").
167. Doe v. United States, 487 U.S. 201,210 (1988).
168. S. 222, 223 (1971). See supra notes 108-19 and accompanying text for a discussion of Harris.
169. New York v. Quarles, 467 U.S. 649,658 n.7 (1984).
170. See supra text accompanying notes 116-17 for a discussion of the rationale behind the Fourth Amendment's exclusionary rule.
171. See Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L.J. 447,534 (2002) ("A police officer who disregards Miranda does nothing wrong."); Mannheimer, supra note 115, at 122-23 ("In essence, when a police officer conducts a custodial interrogation without adhering to Miranda, he is informally granting the suspect immunity. It does not mean that he has done anything wrong." (footnote omitted)).
172. Mannheimer, supra note 115, at 120 (alteration in original) (quoting U.S. CONST, amend. V); accord M.K.B. Darmer, Lessons from the Lindh Case: Public Safety and the Fifth Amendment, 68 BROOK. L. REV. 241, 281 (2002) ("[T]he language of the Fifth Amendment . . . does not suggest that society's 'need' for a 'compelled' statement can be balanced against an absolute prohibition against compelled self-incrimination."); Daniel Brian Yeager, Note, The Public Safety Exception to Miranda Careening Through the Lower Courts, 40 U. FLA. L. REV. 989,1004-05 (1988) ("[T]he judiciary created the penalty of exclusion under the fourth amendment; the Constitution mandated exclusion of compelled testimony under the fifth amendment.").
173. Quarles, 467 U.S. at 686 (Marshall, J., dissenting); see also id. at 665 (O'Connor. J., concurring in part and dissenting in part) ("[T]here is nothing about an exigency that makes custodial interrogation any less compelling ....").
174. S. 760 (2003) (plurality opinion).
175. Chavez, 538 U.S. at 772 ("Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights ...."): id. at 789 (Kennedy, J., concurring in part and dissenting in part) ("[F]ailure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues."); see also United States v. Patane, 542 U.S. 630, 637 (2004) (plurality opinion) ("[P]olice do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn").
176. Chavez, 538 U.S. at 766-67 (plurality opinion); id. at 777 (Souter, J., concurring); accord Patane, 542 U.S. at 641 ("Potential violations [of the Self-incrimination Clause] occur, if at all, only upon the admission of [compelled incriminatory] statements into evidence ....").
177. See William T. Pizzi, The Privilege Against Self-Incrimination in a Rescue Situation, 76 J. CRIM. L. & CRIMINOLOGY 567, 596 (1985) ("The relevant issue is not . . . whether fifth amendment rules permit exceptions in emergency situations, but whether the fifth amendment is meant to apply in circumstances where the police are functioning in a situation which is primarily noninvestigative and where life is at stake."); see also Darmer, supra note 172, at 282 ("The question is one of defining the scope of the Fifth Amendment right against self-incrimination. ").
178. Quarles, 467 U.S. at 656; see also Pizzi, supra note 177, at 583 (observing that Quarles recognized existence of variety of motives that can drive human behavior); Marc S. Reiner, Note, The Public Safety Exception to Miranda: Analyzing Subjective Motivation, 93 MICH. L. REV. 2377, 2381 (1995) (noting that Court realized police officers may have many different motives).
179. Quarles, 467 U.S. at 658-59 (emphasis added).
180. See Reiner, supra note 178, at 2382 ("By limiting impermissible questions to those whose sole purpose is to produce incriminatory evidence, the Court suggested that the purpose behind a permissible question must, at least in part, be a genuine belief in a public safety emergency."); Jim Weller, Comment, The Legacy of Quarles; A Summary of the Public Safety Exception to Miranda in the Federal Courts, 49 BAYLOR L. REV. 1107, 1111 (1997) ("[T]he exception applie[s] if the officer's motive could objectively be viewed as a concern for public safety." (emphasis added)); see also Quarles, 467 U.S. at 657 ("Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area." (emphasis added)); Pizzi, supra note 177, at 583 (opining that public safety exception applies even when officer has multiple concurrent objectives).
181. Davis v. Washington, 126 S. Ct. 2266, 2273 (2006). See supra note 54 and accompanying text for a discussion of the "primary purpose" test.
182. See Davis, 126 S. Ct. at 2283 (Thomas, J., concurring in part and dissenting in part) ("In many, if not most, cases where police respond to a report of a crime ... the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence." (citing Quarks, 467 U.S. at 656)).
183. Davis, 126 S. Ct. at 2274 (majority opinion) (emphasis added) (alteration in original).
184. The Court noted: Just as, for Fifth Amendment purposes, "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect," trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Id. at 2277 (citation omitted) (quoting Quarks, 467 U.S. at 658-59).
185. See Crawford v. Washington, 541 U.S. 36, 44 (2004) (discussing sixteenth-century "Marian bail and committal statutes [that] required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court" (emphasis added)). See also supra Part II.A.l for a discussion of this historical practice.
186. See Crawford, 541 U.S. at 52 (noting that modern police interrogations bear strong resemblance to examinations by justices of the peace in sixteenth-century England); Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REV. 59, 69 (1966) (noting that modern police mirror role of early magistrates in interrogating suspects).
187. See Pizzi, supra note 177, at 594 (suggesting investigative role of police forms basis of Miranda).
188. Id. at 573-74; see also id. at 588 (noting that police have variety of other tasks in addition to apprehending criminals). The recognition that the police perform both crime-fighting and community-caretaking functions is most highly developed in the Supreme Court's "special needs" jurisprudence pursuant to the Fourth Amendment. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (explaining that certain circumstances create special needs, making warrant and probable cause requirements impractical). Ironically, it is in this area that differential treatment of multiple police functions is arguably least justifiable, as the Fourth Amendment, unlike the Fifth and Sixth Amendments, makes no mention that its strictures are limited to "criminal case[s]," U.S. CONST. amend. V, or "criminal prosecutions," id. amend, VI. See id. amend. IV (providing right of people to be free of unreasonable searches and seizures and requiring probable cause before warrants are issued without explicitly limiting right to "criminal" cases).
189. Pizzi, supra note 177, at 574.
190. Id. at 594.
191. Id.
192. New York v. Quarles, 467 U.S. 649,656 (1984).
193. Id. at 659 n.8.
194. Id. at 656.
195. Davis v. Washington, 126 S. Ct. 2266, 2273 (2006).
196. See id. (stating objective test for determining whether statements are testimonial); Quarles, 467 U.S. at 656 (claiming Miranda does not require looking to officer's subjective motivation).
197. Reiner, supra note 178, at 2383-86; accord Pizzi, supra note 177, at 582 (stating that majority opinion in Quarks assumed that officer's primary concern was public safety despite Court's dismissal of importance of subjective motivation).
198. Quarks, 467 U.S. at 656.
199. See Reiner, supra note 178, at 2385 n.36 (quoting James G. Scotti, Comment, In re John C.-An Opportunity for the New York Courts to Save Miranda from the Public Safety Exception, 62 ST. JOHN'S L. REV. 143, 145 (1987)) (analyzing language of Quarks as demanding inquiry into actual belief of officer); see also Pizzi, supra note 177, at 580 (observing that Court's "reasonably prompted" language is in serious tension with its enunciation of wholly objective test).
200. See Quarks, 467 U.S. at 657-58 (declining to place police officers in that "untenable position").
201. Reiner, supra note 178, at 2384; accord Pizzi, supra note 177. at 583 (noting difficulty in applying public safety exception without inquiry into officer's subjective intent).
202. Reiner, supra note 178, at 2386-87; see also id. at 2401 (observing that even courts that eschew inquiry into officer's subjective motivations nevertheless consider objective factors that demonstrate officer's subjective motivation).
203. See id. at 2395-96 (noting Quarks decision explicitly requires analysis of reasonableness of officer's public safety concern); see also Pizzi, supra note 177, at 583 (discussing Quarks as standing for proposition that officer's belief must be both held in good faith and objectively reasonable to satisfy public safety exception).
204. See Quarks, 467 U.S. at 659 n.8 (stating that, for public safety exception to apply, there must be immediate danger that creates objectively reasonable need to protect police and public). Reiner astutely points to other language in Quarks suggesting that a danger must be imminent for the public safety exception to apply. Reiner, supra note 178, at 2396 n.78. For example, the Court noted that "[t]he police . . . were confronted with the immediate necessity of ascertaining the whereabouts of [the] gun." Quarks, 467 U.S. at 657. Moreover, the Court observed that decisions regarding public safety "often" must be made "in a matter of seconds," id., and, in any event, '"only [within a] limited time,'" id. at 658 (quoting Dunaway v. New York, 442 U.S. 200, 213-14 (1979)). See Pizzi, supra note 177, at 584 ("[T]he opinion in Quarles sometimes seems to be directed only to a fast-developing, Όn-the-scene' situation."). But see Jeffrey S. Becker, A Legal War on Terrorism: Extending New York v. Quarles and the Departure from Enemy Combatant Designations, 53 DEPAULL. REV. 831, 868 (2003) ("[A]n officer's need to make a spontaneous decision was not a determinative factor of the public safety exception.").
205. Reiner, supra note 178, at 2396 n.78; see also Quarles, 467 U.S. at 656-57 (noting that Miranda majority determined that increased protection of Fifth Amendment rights outweighed risk of fewer convictions of guilty suspects).
206. See Leading Cases, supra note 56, at 218 ("[T]he precise nature of the Court's 'purpose' requirement is somewhat ambiguous.").
207. Davis v. Washington, 126 S. Ct. 2266,2283 (2006) (Thomas, J., concurring in the judgment in part and dissenting in part) ("The Court's repeated invocation of the word Όbjectiv[e]' to describe its test... suggests that the Court may not mean to reference purpose at all...." (alteration in original)).
208. Leading Cases, supra note 56, at 218.
209. Davis, 126 S. Ct. at 2276 (emphasis added) (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004) (alteration in original)).
210. Id. at 2278 (emphasis added).
211. id. at 2276.
212. Id. at 2279 (internal quotation marks omitted) (second alteration in original).
213. Id. at 2278.
214. Davis, 126 S. Ct. at 2279.
215. Leading Cases, supra note 56, at 219; see also Friedman, Grappling, supra note 58, at 253 (noting that, even if test looked to declarant's subjective expectation of later use of evidence, this expectation could be determined only by looking at objective circumstances).
216. See Wilson, supra note 60, at 287 (using "ordinary officer" standard to determine whether there has been a gathering of evidence for prosecution).
217. Davis, 126 S. Ct. at 2273.
218. U.S. CONST, amend. VI.
219. New York v. Queries, 467 U.S. 649,659 n.8 (1984).
220. The only difference appears to be that any plausible noninvestigatory motive for the interrogation will save a response from being testimonial under the Self-Iπcrimination Clause, whereas only a noninvestigatory motive that predominates above all other motives will render a statement nontestimonial pursuant to the Confrontation Clause. This distinction is addressed infra in Part III.B.
221. S. 582 (1990).
222. See supra notes 126-28 and accompanying text for a discussion of the factual background of Muniz.
223. Muniz, 496 U.S. at 586 (plurality opinion).
224. Id.
225. Id. at 601; id. at 608 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part).
226. Id. at 601 (plurality opinion). This conclusion suggests that the plurality viewed the information provided as testimonial in the classic Fifth Amendment sense, a result at odds with the conclusion of a plurality in California v. Byers, 402 U.S. 424, 432 (1971) (plurality opinion), that disclosure of one's name and address is nontestimonial. See infra notes 285-86, 303-16, and accompanying text for a discussion of Byers.
227. Muniz, 496 U.S at 601-02 (plurality opinion) (quoting Brief for United States as Amius Curiae at 12, Muniz, 496 U.S. 582); see also Meghan S. Skelton & James G. Connell, III, The Routine Booking Question Exception to Miranda, 34 U. BALT. L. REV. 55, 68 (2004) (summarizing plurality as "explicitly recogniz[ing] a routine booking question exception to Miranda").
228. Muniz, 496 U.S. at 608 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part); see Allen & Mace, supra note 17, at 274 (discussing plurality opinion in Muniz and Justices' differing analyses of police questions).
229. See Skelton & Connell, supra note 227, at 68-78 (describing approaches courts have taken when deciding cases involving Miranda rights and routine booking questions).
230. Muniz, 496 U.S. at 601-02 (plurality opinion).
231. Id. at 608 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part); see also Skelton & Connell, supra note 227, at 68 (noting that Chief Justice Rehnquist's opinion did not address routine booking question exception to Miranda).
232. Muniz, 496 U.S. at 608 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part).
233. See supra notes 132-36 and accompanying text for discussion of Chief Justice Rehnquist's discussion of the "sixth birthday" question in Muniz.
234. Doe v. United States, 487 U.S. 201, 210 (1988); see also Pardo, supra note 17, at 1895 (illustrating how routine booking questions may be testimonial because government seeks and suspect reveals "the propositional content of a suspect's beliefs or knowledge"); cf. Hiibel v. Sixth Judicial Dist. Ct" 542 U.S. 177, 189 (2004) (assuming without deciding that disclosure of identity would be testimonial).
235. Pizzi, supra note 177, at 600 (demonstrating how disclosure of even basic biographical information can incriminate); Skelton & Connell, supra note 227, at 55-56 (same). But see Hiibel, 542 U.S. at 191 (asserting in dicta that disclosure of one's identity is likely to be incriminating "only in unusual circumstances").
236. S. 291 (1980). See infra Part III.A.l for a discussion of lnnis.
237. Innis, 446 U.S. at 300-01 (footnote omitted).
238. See, e.g., Jonathan L. Marks, Note, Confusing the Fifth Amendment with the Sixth: Lower Court Misapplication of the Innis Definition of Interrogation, 87 MICH. L. REV. 1073, 1105 (1989) (discussing "[t]he Innis exception for questions normally attendant to arrest and custody").
239. See, e.g., Pizzi, supra note 177, at 598 (articulating Innis test as dependent on whether questions are likely to produce incriminating response); see also Skelton & Connell, supra note 227, at 68-71 (surveying courts that "have explicitly rejected the plain language reading of Innis" by applying "reasonably likely to elicit" test to express questioning).
240. See United States v. Downing, 665 F.2d 404, 407 (1st Cir. 1981) ("The exception in Innis for police actions or statements 'normally attendant to arrest and custody' does not apply to the 'express questioning'... but only to its 'functional equivalent.'" (quoting Innis, 446 U.S. at 300-01)); Skelton & Connell, supra note 227, at 76-77 (arguing that plain reading of Innis reveals that all "express questioning" falls within definition of interrogation). Nevertheless, some courts have "questioned . . . whether the Innis Court meant what it said about express questioning." Id. at 69; see also Daniel Yeager, Rethinking Custodial Interrogation, 28 AM. CRIM. L. REV. 1, 25 (1990) (suggesting that some "close cases" involving express questioning might fall "beyond Miranda"); Marks, supra note 238, at 1100 (contending that Innis does not necessarily render all express questioning interrogation).
241. See, e.g., Marks, supra note 238, at 1101 (observing that booking questions do not tend to increase suspect's feeling of compulsion while in custody); see also Skelton & Connell, supra note 227, at 99-100 (advocating that routine booking question exception not apply when question is psychologically manipulative and threatening in tone).
242. See Miranda v. Arizona, 384 U.S. 436, 533 (1966) (White, J., dissenting) (arguing that majority opinion makes any response to single police question compelled).
243. Id. at 476 (majority opinion).
244. Pizzi, supra note 177, at 599.
245. See Skelton & Connell, supra note 227, at 98 (noting that biographical questioning tends to be noninvestigative and thus unlikely to incriminate suspect); see also Marks, supra note 238, at 1101 (asserting that Miranda protects only against investigatory questioning).
246. See Skelton & Connell, supra note 227, at 96 (noting that routine booking question exception is intended to facilitate police administrative duties).
247. Id. at 101. This is not to deny the residual side benefit to the police in their investigative capacities of learning a suspect's identity. Such information can be used prosecutorially, for example, to subject a suspect to enhanced punishment pursuant to a recidivism statute if he is ultimately convicted of a crime. In the typical case, however, the police likely want to learn the identity of a suspect without regard to this potential prosecutorial use of the information.
248. Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006); cf. Ross, supra note 16, at 213 (asserting that certain background information, such as address of accused provided by declarants who do not testify at trial, should be considered nontestimonial pursuant to Confrontation Clause).
249. See Jefferson V. Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation?, 25 S.C. L. REV. 699, 704 (1974) (arguing that Miranda applies only to questioning aimed at drawing out admission of crime). Again this approach is precisely the tack some lower courts and commentators have taken but, ironically, have been able to do so only by misreading Innis. See supra notes 236-40 and accompanying text for a discussion of lower court misapplication of Innis.
250. Davis, 126 S. Ct. at 2273-74.
251. See supra notes 51-63 and accompanying text for a discussion of Davis.
252. The major difference between the "routine booking question" exception and Davis relates to the facts that should be taken into account in determining whether the exception applies. While Davis contemplates that courts will look to objectively observable indicia of the "primary purpose" of police questioning, see supra notes 54-57 and accompanying text, the test for the "routine booking question" exception is less clear. Some courts look solely to the intent of the officer. See Skelton & Connell, supra note 227, at 79-86 (identifying and describing courts' analyses of subjective intent of investigating officer). Other courts track the language of Innis and "ask[] whether the police reasonably should have known that the question would elicit an incriminating response." Id. at 86. Still other courts, adopting a different reading of Innis, see infra note 397-99 and accompanying text, ask "whether an objective observer would conclude that the police intended to elicit incriminating information," Skelton & Connell, supra note 227, at 92.
253. S. 292 (1990).
254. Though the Court did not expressly carve out an exception to the Miranda rule, that is how the case is typically read. See, e.g., Perkins, 496 U.S. at 304 (Marshall, J., dissenting) (asserting that Court created exception to Miranda); Yeager, supra note 240, at 66 (concluding that Perkins is probably best viewed as "an exception to Miranda, whether couched as such or not").
255. Perkins, 496 U.S. at 294.
256. Id. at 294-95.
257. Id. at 295.
258. Id.
259. Id.
260. Perkins, 496 U.S. at 295.
261. Id. at 300.
262. Id. at 297.
263. Id. at 296 (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)); see also id. at 305-06 (Marshall, J., dissenting) (noting that police expressly questioned suspect); Daniel J. Capra, Prisoners of Their Own Jurisprudence: Fourth and Fifth Amendment Cases in the Supreme Court, 36 VlLL. L. REV. 1267, 1344 (1991) (arguing that Perkins involved custodial interrogation); Yeager, supra note 240, at 43 (observing that Perkins involved interrogation pursuant to "even the most restrictive reading of Innis"); Marks, supra note 238, at 1117 ("A literal reading of the Innis test does require courts to view jail plant tactics as interrogation.").
264. Perkins, 496 U.S. at 297 (emphasis added).
265. Id.
266. This is not to deny that the compulsion-based rationale for Perkins provided by the Court is persuasive. And because compulsion, incrimination, and testimony must coalesce before the Self-Incrimination Clause is violated, see supra note 17 and accompanying text, the result in Perkins is overdetermined: Perkins was correctly decided both because testimony was lacking and because compulsion was absent. Nonetheless, only the testimonial-based explanation covers both Quarles and Muniz as well.
267. Davis v. Washington, 126 S. Ct. 2266, 2273 (2006).
268. Leading Cases, supra note 56, at 219.
269. S. 171 (1987).
270. See Bouriaily, 483 U.S. at 181-82 (holding that coconspirator's out-of-court statement was sufficiently reliable for admission notwithstanding Confrontation Clause).
271. Crawford v. Washington, 541 U.S. 36, 56 (2004); see also Davis, 126 S. Ct. at 2275 (characterizing statements in Bourjaily as "clearly nontestimonial").
272. S. 387 (1986).
273. Inadi, 475 U.S. at 394-96. In Inadi, the statements were intercepted via wiretap rather than made to an undercover officer. Id. at 390. Nevertheless, as the Court apparently believed in Bouή aily, this was a distinction without a difference. 483 U.S. at 182.
274. Inadi, 475 U.S. at 395 (emphasis added).
275. Id. at 395-96.
276. See Ariana J. Torchin, Note, A Multidimensional Framework for the Analysis of Testimonial Hearsay Under Crawford v. Washington, 94 GEO. L.J. 581, 595 n.66 (2006) (noting that distinction drawn in Inadi "appears relevant to an understanding of the requisite purposes and consequences associated with a 'solemn declaration' as opposed to a 'casual remark' addressed in Crawford").
277. Davis, 126 S. Ct. at 2273.
278. See Leading Cases, supra note 56, at 219 & n.52 (noting that Davis Court's reference to statement in Bourjaily as '"clearly nontestimonial" indicates that courts must look only to objectively observable context of statement in question, because undercover police officers are trying to gather evidence for use in future court proceedings (quoting Davis, 126 S. Ct. at 2275)); see also Friedman, Grappling, supra note 58, at 255-56 (observing that subjective motivations of undercover agent "to gather evidence for use in prosecution" could not, consistently with pre-Crawford law, be "the critical consideration"); id. at 259 (asserting that "the essence of testifying is provision of information understanding there is a significant probability it will be used in prosecution," an understanding absent in "the conspirator or the unwitting drug customer"). But see Pardo, supra note 16, at 174 (asserting that statements made to undercover officers should be considered testimonial); Michael L. Seigel & Daniel Weisman, The Admissibility of Co-Conspirator Statements in a Post-Crawford World, 34 FLA. ST. U. L. REV. 877, 901-04 (2007) (arguing that statements made to undercover officers should be considered testimonial when made in response to "sustained questioning").
279. See, e.g., Balt. City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 561 (1990) (holding mother suspected of child abuse could not invoke Fifth Amendment to resist order to produce son for Social Services); California v. Byers, 402 U.S. 424, 427 (1971) (plurality opinion) (holding Self-Incrimination Clause is not violated by statute requiring persons involved in car accidents to stop and report their name and address).
280. S. 1 (1948).
281. Shapiro, 335 U.S. at 4-5.
282. Id. at 3-5
283. Id. at 17-18 (quoting Wilson v. United States, 221 U.S. 361, 381 (1911) (dicta)). This language from Wilson was dicta, given that Wilson held that a person who maintains custody of documents on behalf of a corporation may not claim the privilege to avoid production of the documents, even if they incriminate him. Wilson, 221 U.S. at 382.
284. Shapiro, 335 U.S at 33.
285. S. 424 (1971).
286. Byers, 402 U.S. at 427 (plurality opinion); see also id. at 458 (Harlan, J., concurring in the judgment) (emphasizing noncriminal government purpose of self-reporting statute, government's need for information through self-reporting, and minimal nature of information required to be disclosed).
287. S. 549 (1990).
288. Bouknight, 493 U.S. at 555.
289. S. 39 (1968).
290. S. 62 (1968).
291. Marchetti, 390 U.S. at 42.
292. ld;,Grosso, 390 U.S. at 63.
293. S. 85 (1968).
294. Haynes, 390 U.S. at 87-89.
295. Id. at 98-99; Grosso, 390 U.S. at 67; Marchetti, 390 U.S. at 56.
296. Shapiro, 335 U.S. 1 (1948).
297. Marchetti, 390 U.S. at 57 (internal quotation marks omitted).
298. Id. (internal quotation marks omitted); see also Haynes, 390 U.S. at 99 ("There are . . . no records or other documents here to which any 'public aspects' might reasonably be said to have attached.").
299. Marchetti, 390 U.S. at 44.
300. Haynes, 390 U.S. at 96.
301. Marchetti, 390 U.S. at 57 (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70,79 (1965)).
302. See Stuntz, supra note 30, at 1282 ("[C]ompulsion, incrimination and testimony are all plainly present, yet the privilege does not apply.").
303. Amar & Lettow, supra note 77, at 871.
304. See id. (noting that plurality "struggled to find a rationale for [its] holding"); Stuntz, supra note 30, at 1284-85 (characterizing plurality opinion in Byers as "famously unpersuasive").
305. California v. Byers, 402 U.S. 424, 432 (1971) (plurality opinion) ("Stopping in compliance with [the statute] does not provide the State with 'evidence of a testimonial or communicative nature' -" (quoting Schmerber v. California, 384 U.S. 757,761 (1966) (alteration added))).
306. Id. at 428 ("[T]he mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure ....").
307. See id. at 427 (opining that courts must "balanc[e] the public need on the one hand. and the individual claim to constitutional protections on the other").
308. Stephen A. Saltzburg, The Required Records Doctrine: Its Lessons for the Privilege Against Self-Incrímination, 53 U. Cm. L. REV. 6,34-35 (1986); see also David Dolinko, Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. REV. 1063, 1142 (1986) (citing Byers as case in which Court "distorted facts and strained logic"): The Supreme Court, 1970 Term, 85 HARV. L. REV. 38, 273 (1971) (arguing that plurality in Byers "manipulate[ed] the definitions of 'incriminating' and 'testimonial'").
309. Byers, 402 U.S. at 462-63 (Black, J., dissenting); see also Dolinko, supra note 308, at 1142 n.318 ("[T]he claim that stating one's name is not 'testimonial' is frankly bizarre.").
310. Byers, 402 U.S. at 435-36 (Harlan, J., concurring in the judgment).
311. Id. at 448.
312. Id. at 457 n.9; see also Stuntz, supra note 30, at 1285 ("[P]lainly, the statute did compel self-incrimination in Byers itself and in many similar cases.").
313. Byers, 402 U.S. at 431 (plurality opinion).
314. See Nagareda, supra note 30, at 1654 ("It is of no significance that the question 'Were you present at the scene of the murder?' might be answered in the negative by virtually everyone in the population. The actual murderer still may invoke the Fifth Amendment to avoid having to answer that question."); see also Dolinko, supra note 308, at 1142 n.318 ("However low the risk of self-incrimination that compliance with the statute posed to drivers as a class, the risk to Byers was undoubtedly 'substantial.'").
315. Byers, 402 U.S. at 448 (Harlan, J., concurring in the judgment).
316. Id. at 458.
317. Stuntz, supra note 30, at 1283.
318. S. 222 (1971). See supra notes 108-14 and accompanying text for a discussion of Harris.
319. S. 649 (1984). See supra notes 155-76 and accompanying text for a discussion of Quarles.
320. See Amar & Lettow, supra note 77, at 872 ("[T]he language of the Self-Incrimination Clause does not balance: it states a bright-line rule.").
321. Id.
322. See, e.g., Saltzburg, supra note 308, at 35 (finding "the only acceptable explanation for the result" in Byers to be Justice Harlan's determination "that the decision of the case required making a judgment about the role of the privilege in the modern world"). Even William Stuntz's intriguing excuse theory-that we recognize the privilege against self-incrimination in those instances in which it would be deemed excusable for those claiming it to have instead committed perjury-concededly fails to explain the required records doctrine. See Stuntz, supra note 30, at 1287 (admitting that excuse theory, as applied to Byers, "proves too much [because] [t)he Byers problem is present in some degree whenever there is some chance that a confession might not lead to criminal liability but would serve some civil interest"). Thus, Stuntz ultimately falls into the category of those who accept the Court's balancing approach. See id. ("The only solution is to make judgments of degree.").
323. See Amar & Lettow, supra note 77, at 907 (proposing that required records receive full Fifth Amendment protection without distinction); Dolinko, supra note 308, at 1142 (deriding required records doctrine as "dubious[]" and "defended by the Court on the flimsiest of grounds"); Nagareda, supra note 30, at 1654-55 ("To point to the general applicability of a given reporting requirement as a justification for its application in such a way as to compel self-incrimination in a given instance-as the Court in Byers does-is to misconstrue fundamentally the nature of the Fifth Amendment."). To be fair, Amar and Lettow suggest in a footnote the possibility of a textual argument similar to the one made by this Article. See Amar & Lettow, supra note 77, at 907 n.222 ("[I]t might be argued that certain kinds of records, required of broad classes of persons not suspected of criminal wrongdoing, and not involving face-to-face encounters with interrogators, need not be seen as akin to criminal 'witnessing' even though these records are testimonial and ultimately introduced in a criminal case.").
324. See supra notes 289-301 and text accompanying for a discussion of Marchettί, Grosso, and Haynes.
325. Marchetti v. United States, 390 U.S. 39,57 (1968).
326. Saltzburg, supra note 308, at 22.
327. Id, (emphasis omitted).
328. Haynes v. United States, 390 U.S. 85, 99 (1968) (internal quotation marks omitted); Grosso v. United States, 390 U.S. 62, 68 (1968) (internal quotation marks omitted); Marchetti, 390 U.S. at 57 (internal quotation marks omitted).
329. Shapiro v. United States, 335 U.S. 1, 51 (1948) (Frankfurter, J., dissenting); see also Saltzburg, supra note 308, at 23 ("It might be sufficient here simply to recall Justice Frankfurter's attack on the notion that the Shapiro records were 'public.'").
330. Marchetti, 390 U.S. at 57 (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70,79 (1965)).
331. Although Saltzburg disagrees with all three of the distinctions set forth in Marchetti, Grosso, and Haynes, Saltzburg, supra note 308, at 22-24, he does concede that the third one has the greatest merit, id. at 23.
332. Bait. City Dep't of Soc. Servs. v, Bouknight, 493 U.S. 549,556 (1990). See supra note 287-88 and accompanying text for a discussion of Bouknight.
333. Bouknight, 493 U.S. at 557 (quoting Marchetti, 390 U.S. at 57).
334. Id. at 559; see also Pardo, supra note 17, at 1871 ("[T]he privilege is generally unavailable if the government demands information in order to effectuate a non-criminal regulatory regime .,..").
335. Bouknight, 493 U.S. at 571 (Marshall, J., dissenting) (citation omitted).
336. See, e.g., United States v. O'Brien, 391 U.S. 367, 383-84 (1968) (describing risk of misinterpreting motive because legislators have different reasons for supporting laws); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205, 1212-17 (1970) (discussing futility and disutility of attempting to determine and base decisions on legislative motivation).
337. See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976) ("[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact... that the law bears more heavily on one race than another.")
338. Marchetti, 390 U.S. at 57 (quoting Albertson, 382 U.S. at 79).
339. See Pardo, supra note 17, at 1871 (observing that Self-Incrimination Clause is "fully applicable when the government purports to be carrying out a non-criminal purpose but its true motive is directed at criminals and criminal prosecution"); The Supreme Court, 1970 Term, supra note 308, at 272 (citing Marchetti, Grosso, and Haynes as cases in which "the government's claim of nonprosecutorial motivation was more suspect"); see also Bouknight, 493 U.S. at 561 ("[0]rders to produce children cannot be characterized as efforts to gain some testimonial component of the act of production. The government demands production ... for compelling reasons unrelated to criminal law enforcement and as a part of a broadly applied regulatory regime.").
340. Ggamma;OSSO V. United States, 390 U.S. 62, 68 (1968) (citation omitted). Years before the Court created the Marchetti/Grosso/ Ήaynes carve out, Bernard Meltzer presciently predicted this limitation on the required records doctrine based on just such a motives analysis. He posited a hypothetical federal statute "requir[ing] the keeping of records of all interstate excursions involving women." Bernard D. Meltzer, Required Records, the McCarran Act, and the Privilege Against Self-Incrimination, 18 U. CHI. L. REV. 687, 714 (1951). Though such a requirement would make it easier to enforce the criminal prohibitions of the Mann Act, that the statute might be upheld under the required records doctrine was a result Meltzer intuited as incorrect. See id. at 715 (noting that statute could likely survive standard promulgated in Shapiro but was clearly of a different type). He continued: It is not easy, however, to say precisely what the difference is [between the hypothetical statute and the statute in Shapiro]. Perhaps it is that the sole or the dominating purpose of the hypothetical record requirement appears to be to compel criminals to keep incriminating records to be used to convict the record-keepers in subsequent criminal trials. Where this appears to be the dominant purpose, a compelling argument may be made that the statutory requirement would appear to be invalid under the Fifth Amendment.... Id. (emphasis added).
341. Admittedly, this view is in some tension with dicta in United States v. Sullivan, 274 U.S. 259, 263-64 (1927) (dicta), reiterated with some force in Garner v. United States, 424 U.S. 648, 650-51 (1976), suggesting that a taxpayer may invoke the privilege rather than answer particular incriminating questions on a tax return. See Saltzburg, supra note 308, at 24 (noting that income tax returns are records required of general population and therefore do not fit within Marchetti/Grosso/Haynes reasoning, but observing that Sullivan suggests privilege still applies). Nevertheless, the Court has never squarely held that the privilege can be validly claimed on an income tax return, and the Sullivan Court's "cautionary language . . . casts doubt on the applicability of the privilege to income tax returns." Meltzer, supra note 340, at 717.
342. S. 36 (2004).
343. Crawford, 541 U.S. at 56.
344. FED. R. EVID. 803(6).
345. See, e.g., Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring in the judgment) ("To its credit, the Court's analysis of 'testimony' excludes at least some hearsay exceptions, such as business records and official records." (emphasis added)); United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (finding public records to be nontestimonial under Crawford); United States v. Weiland, 420 F.3d 1062,1077 (9th Cir. 2005) ("[P]ublic records ... are not themselves testimonial in nature and . . . do not fall within the prohibition established by the Supreme Court in Crawford."); United States v. Lopez-Moreno, 420 F.3d 420, 437 (5th Cir. 2005) ("In Crawford, the Supreme Court stated that business records, which are analogous to public records, are 'by their nature . . . not testimonial' and not subject to the requirements of the Confrontation Clause." (quoting Crawford, 541 U.S. at 56)); cf. Torchin, supra note 276, at 600 ("Crawford . . did not address the distinction between public records and business records.").
346. S. 109 (1943).
347. Palmer, 318 U.S. at 115.
348. Id. at 114.
349. Stanley A. Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.C. L. REV. 1, 21 (1987).
350. See Pamela R. Metzger, Cheating the Constitution, 59 VAND. L. REV. 475, 508-09 (2006) (arguing that, after Crawford, Confrontation Clause forbids introduction of documents prepared for litigation purposes, even if they otherwise qualify as business or public records).
351. See Goldman, supra note 349, at 21 n.78 (discussing legislative ratification of Palmer to make business records created in potentially untrustworthy manner inadmissible).
352. See FED. R. EVID. 803(6) (creating exclusion where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness"); id. 803(8) (creating exclusion where "the sources of information or other circumstances indicate lack of trustworthiness").
353. Id. 803(8)(B). Due to an apparent drafting glitch, Rule 803(8)(B) forbids the introduction of such records completely "in criminal cases," even when offered by the defendant. Nevertheless, courts have tended to interpret this provision based on its apparent intent rather than on what it actually says. See, e.g.. United States v. Smith, 521 F.2d 957, 968 n.24 (D.C. Cir. 1975) ("We are convinced . . . that 803(8)(B) should be read, in accordance with the obvious intent of Congress and in harmony with 803(8)(C) to authorize the admission of the reports of police officers and other law enforcement personnel at the request of the defendant in a criminal case.").
354. FED. R. EVID. 803(8)(C).
355. FED. R. EVID. 803(8)(C) advisory committee's note; see also Torchin, supra note 276, at 600 ("Although these Committee notes were written well before Crawford, they continue to reflect how reports by forensic medical staff, law enforcement officers, and coroners should be analyzed-namely, that they should be deemed testimonial....").
356. See 120 CONG. REC. 2366,2388 (1974) (statement of Rep. Holtzman) (arguing that proposed limitation "reaffirms the right of cross examination to the accused"); id. (statement of Rep. Dennis) ("[I]n a criminal case the defendant should be confronted with the accuser to give him the chance to cross examine."); id. (statement of Rep. Brasco) ("One of the basic tenets of our law is that one should be confronted by one's accuser and be able to cross-examine the accuser."); see also id. (statement of Rep. Johnson) ("[T]he Supreme Court would have to ultimately declare that kind of a rule [without the limitation] unconstitutional if we did pass it....").
357. Laird C. Kirkpatrick, Confrontation and Hearsay: Exemptions from the Constitutional Unavailability Requirement, 70 MINN. L. REV. 665, 699 (1986); see also id. ("A business record charging illegal activity by the defendant . . . would come dangerously close to 'trial by affidavit' ....").
358. Cf. Mosteller, supra note 62, at 557-58 (observing that definition of "interrogation" in Miranda context may be "illustrative" in Confrontation Clause context); Wilson, supra note 60, at 279 ("The courts' experience in defining interrogation to guard against coercion by the police provides models for a Confrontation Clause interrogation test.").
359. S. 36 (2004).
360. S. Ct. 2255 (2006).
361. S. 436 (1966).
362. S. 450 (1979).
363. Rhode Island v. Innis, 446 U.S. 291,300-01 (1980).
364. See, e.g., Pizzi, supra note 177, at 586 (referring to Quarles as "an ad hoc solution").
365. See Darmer, supra note 172, at 281 (calling on Court to "strive for a more comfortable doctrinal home for public safety exceptions than the unsatisfying ipse dixit").
366. Miranda, 384 U.S. at 444.
367. See id. at 453 (describing several interrogation techniques used to induce confession that do not require or include questioning).
368. S. 291 (1980).
369. Innis, 446 U.S. at 293-94.
370. Id. at 294.
371. Id. at 295.
372. Id.
373. Id. at 300-01.
374. Innis, 446 U.S. at 301 (footnote omitted).
375. See supra note 236-40 and accompanying text for a discussion of Innis and its apparent scope.
376. See Kenneth W. Graham, Jr., What Is "Custodial Interrogation?": California's Anticipatory Application of Miranda v. Arizona, 14 UCLA L. REV. 59, 105-06 (1967) (observing absurdity of requiring warnings before "the police can ask a man if he wants cream in his coffee"); Marks, supra note 238, at 1100 ("An officer cannot be thought to interrogate a suspect when, during booking, he asks: 'Do you want a sandwich?'"). Of course, the answers to these questions will usually not be incriminating. But sometimes they will, as when the suspect states that he is not hungry because he just "ate his [victim's] liver with some fava beans and a nice Chianti." THE SILENCE OF THE LAMBS (Orion Pictures Corp. 1991).
377. Innis, 446 U.S. at 295.
378. WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 6.7(b), at 351 (4th ed. 2004).
379. See supra Part II.C for a discussion of the Miranda exceptions.
380. Graham, supra note 376, at 118.
381. Id. Graham presciently predicted the "routine booking question" exception. Id. (reasoning that courts may wish to treat all questions as interrogation, but recognizing that suspects under arrest may be asked questions necessary for processing).
382. As Michael Pardo cogently observes in another context: When [an] initial rule is too broad, many exceptions may be necessary to account for the undesirable implications created by applying the rule. A rule that covers many situations at the front end requires more work at the back end-sorting which of those situations deserve ultimate inclusion and exclusion. A narrow rule may thus be more powerful precisely because it applies to fewer situations. Pardo, supra note 16, at 163 (citing FREDERICK SCHAUER, PLAYING BY THE RULES: A P HILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 155 (1991)).
383. See LAFAVE ET AL., supra note 378, § 6.7(b), at 351 (arguing that Miranda may not be applicable to certain types of questioning because such questions are unlikely to produce incriminating response); Graham, supra note 376, at 104 (suggesting that if police are not questioning with purpose of eliciting incriminating response, privilege is not invaded); cf. Smith, supra note 249, at 702 (defining "core concept" of interrogation as "the questioning of a subject by police officers with a view to obtaining information related to his guilt or innocence in suspected criminal activity").
384. Rhode Island v. Innis, 446 U.S. 291,301 (1980) (footnote omitted).
385. See LAFAVE ET AL" supra note 378, § 6.7(a), at 350 (stating that meaning of Innis is somewhat unclear); Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 MICH. L. REV. 1209, 1223 (1980) (same); Marks, supra note 238, at 1034 (stating that Innis seems to create ambiguous test); see also Pizzi, supra note 177, at 581 (describing Innis test as "a maverick").
386. See White, supra note 385, at 1224 (asking "[h]ow likely is 'reasonably likely?'"); Marks, supra note 238, at 1085 (reasoning that level of probability needed to meet "reasonably likely" standard remains unclear).
387. See Innis, 446 U.S. at 311-12 (Stevens, J., dissenting) (asserting that, since most suspects in custody "are unlikely to incriminate themselves," findings of interrogation will be rare under Court's standard absent express questioning); White, supra note 385, at 1224 ("Justice Stevens's view of the Innis majority's test seems to be that it looks to the apparent probability that police speech or conduct will elicit an incriminating response.").
388. White, supra note 385, at 1228.
389. See id. at 1229 n.137 (stating that, before Innis, courts did not consider interrogator's apparent probability of success as determinative of whether interrogation occurred).
390. See Alexander S. Helderman, Revisiting Rhode Island v. Innis: Offering a New Interpretation of the Interrogation Test, 33 CREIGHTON L. REV. 729,738 (2000) (noting Innis "Court's failure to make clear if the interrogation test is objective or subjective and from whose perspective a police officer's words or actions should be viewed"); Marks, supra note 238, at 1085 ("The role of intent in the Innis definition is probably the test's most confusing aspect."); see also White, supra note 385,1224 ("[W]hat factors should be weighed in determining whether the requisite degree of 'likelihood' is present?").
391. See White, supra note 385, at 1224 (noting that inquiry is objective and looks to perspective of objective observer rather than view of officer or suspect).
392. Innis, 446 U.S. at 301.
393. Id. at 301-02 n.7. This makes sense, as when it is one's "conscious object ... to cause [a particular] result," MODEL PENAL CODE § 2.02(2)(a)(i) (1962), one typically "should be aware of a substantial and unjustifiable risk that" the result will occur, id. § 2.02(2)(d).
394. Innis, 446 U.S. at 302 n.8.
395. White, supra note 385, at 1231.
396. Id.
397. See, e.g., United States v. Gay, 774 F.2d 368, 379 n.22 (10th Cir. 1985) (citing White, supra note 385); Hawkins v. United States, 461 A.2d 1025,1030 n.8 (D.C. 1983) (same); State v. Abadie, 612 So. 2d 1, 6 (La. 1993) (same); Commonwealth v. Torres, 678 N.E.2d 847, 851 n.7 (Mass. 1997) (same); State v. Washington, 402 S.E.2d 851, 854 (N.C. Ct. App. 1991) (Greene, J., dissenting) (same), rev'd, 410 S.E.2d 55 (N.C. 1991); Timbers v. Commonwealth, 503 S.E.2d 233, 237 (Va. Ct. App. 1998) (same); see also LAFAVE ET AL., supra note 378, § 6.7(a), at 350 (advocating White's view); Marks, supra note 238, at 1085 (asserting that White's view helps clarify Innis Court's confusing discussion of intent).
398. White, supra note 385, at 1231.
399. Id. at 1232; see also Pizzi, supra note 177, at 582 ("[E]ven after Innis, courts continue to emphasize heavily the officer's motive in deciding whether interrogation has taken place ....").
400. S. 649 (1984). See supra notes 192-202 and accompanying text for a discussion of the Court's methodology in Quarles.
401. S. Ct. 2266 (2006). See supra notes 206-16 and accompanying text for a discussion of the Court's methodology in Davis.
402. White, supra note 385, at 1234 n.155. This, of course, was before Quarles was decided.
403. Id. at 1233.
404. Id. at 1234 n.155.
405. Pizzi, supra note 177, at 595.
406. See, e.g., Marks, supra note 238, at 1086 (praising reading of Innis that "focus[es] on compulsion, rather than on the government's purpose or design"); see also Helderman, supra note 390. at 747 ("[A] definition of interrogation must necessarily ... focus on the suspect's perceptions.").
407. Innis, 446 U.S. at 301.
408. See Pizzi, supra note 177, at 599 (noting "exclu[sion] by fiat"); White, supra note 385, at 1234 n.155 (calling exemption a "caveat").
409. Innis, 446 U.S. at 301 (emphasis added). Even that phrasing is imprecise, for the Court should have said "reasonably likely to elicit an incriminating testimonial response from the suspect." Thus, if an officer told a suspect to pull up his sleeve knowing that the perpetrator of a crime was identified as having a certain tattoo on his shoulder, the officer's command would not be considered interrogation just because a reasonable observer would view the command as a demand for information.
410. Id. at 301 n.5 (emphasis omitted).
411. Id. at 301 & n.5.
412. See Fleming v. Collins, 954 F.2d 1109, 1110-11 (5th Cir. 1992) (en banc) (presenting similar facts).
413. Cf. FARGO (Gramercy Pictures 1996) ("So that was Mrs. Lundegaard on the floor in there? And I guess that was your accomplice in the wood chipper. And those three people in Brainerd. And for what? For a little bit of money. There's more to life than a little money, you know. Don't you know that? And here y'are. And it's a beautiful day. Well, I just don't understand it."). Obviously, this more extensive version of the officer's comments would almost certainly constitute interrogation, especially because there are direct questions embedded within it.
414. White, supra note 385, at 1233.
415. See Pizzi, supra note 177, at 607 (reasoning that Court's view does not account for other objectives of police conduct and makes for an overbroad conception of Fifth Amendment interrogation).
416. See Darmer, supra note 172, at 286 (stating that public safety exception is most justified in context of terrorism and national security).
417. See supra note 205 and accompanying text for a discussion of the requirement of an imminent danger.
418. See Darmer, supra note 172, at 274 (observing that "the more speculative public safety cases" do not fall neatly into Quarks exception); Reiner, supra note 178, at 2397-98 ("Lower courts tend to allow questions about the whereabouts of accomplices or guns if the officer knows that they exist, or about the existence of accomplices or guns if the officer reasonably suspects that they may exist." (footnotes omitted)).
419. See Becker, supra note 204, at 869 ("[I]t is farfetched to argue that a bomb going off in a crowded building is less of a public safety concern than a hidden gun, simply because the bomb might not detonate for twenty-four hours."); Darmer, supra note 172, at 280 (urging that "public safety exception [be read] expansively [so] that an exception is justified even if an 'immediate' need cannot be easily demonstrated").
420. See Becker, supra note 204, at 866 (noting potential argument by government "that it is not concerned with whether or not a suspected terrorist's statements can be used against him at trial because its chief concern is to prevent future attacks"); Darmer, supra note 172, at 280 (requiring only "a reasonable belief that questioning might yield information vital to the public interest").
421. Weller, supra note 180, at 1126 (stating that courts should permit officers to determine facts by asking questions when "unknown dangers may exist").
422. See United States v. Carrillo, 16 F.3d 1046,1049 (9th Cir. 1994) (holding that police officer's prefrisking inquiry as to whether prisoner had drugs or needles on his person falls under the Quarles public safety exception).
423. See United States v. Padilla, 819 F.2d 952, 960-61 (10th Cir. 1987) (holding that police questioning as to whether prisoner had shot anyone in house with three bullet holes in window did not constitute police interrogation under Quarles).
424. See generally Darmer, supra note 172 (asserting that Quarles applies where investigators seek information on potential future acts of terrorism); see also Becker, supra note 204, at 869 (urging "good faith extension of Quarles").
425. See Alan Raphael, The Current Scope of the Public Safely Exception to Miranda Under New York v. Quarles, 2 N.Y. CITY L. REV. 63, 76 (1998) ("Another new exception to Quarles [sic] may be found where courts have ruled that police are permitted to ask questions in order to 'clarify the nature of the situation' they face." (quoting People v. Luna, 559 N.Y.S.2d 377, 378 (App. Div. 1990)); Smith, supra note 249, at 714 ('"There are many situations where psychologically it is very hard to superimpose the rather formidable and formal kind of exchanges required by Miranda onto situations where the overwhelming human response is quickly to say, "Who are you? What is going on? What are you doing here?'"" (quoting Louis B. Schwartz & Paul M. Bator, Criminal Justice in the Mid-Sixties: Escobedo Revisited, 42 F.R.D. 463,474 (1967))); Marks, supra note 238, at 1104 (observing that courts generally "allow officers the opportunity to evaluate the nature of the situation they confront").
426. LAFAVE ET AL., supra note 378, § 6.7(b), at 353.
427. Yeager, supra note 172, at 1005.
428. Id. at 1008-09.
429. Miranda v. Arizona, 384 U.S. 436,477 (1966).
430. Id. at 444. The Court reiterated this notion when it defined "interrogation" in Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980) ("By 'incriminating response' we refer to any response-whether inculpatory or exculpatory-that the prosecution may seek to introduce at trial." (emphasis omitted)).
431. Miranda, 384 U.S. at 477.
432. Id. at 476 (emphasis added).
433. S. 757 (1966).
434. See Schmerber, 384 U.S. at 765 (limiting Fifth Amendment to suspect's communications). See supra Part I.A for a discussion of the Supreme Court's definition of "testimonial" in the context of the Self-Incrimination Clause.
435. S. 222 (1971).
436. See Harris, 401 U.S. at 225 (holding that Fifth Amendment does not preclude prosecutorial use of suspect's unwarned statements for impeachment purposes at trial). See supra Part Π.B.2.a for a discussion of Miranda's impeachment exception.
437. See supra notes 429-32 and accompanying text for a discussion of the Miranda Court's observations regarding exculpatory statements.
438. S. 450 (1979).
439. Portash, 440 U.S. at 459-60.
440. Id.
441. Id. See supra Part II.B.2.a for a discussion of Miranda's impeachment exception.
442. Portash, 440 U.S. at 459.
443. See supra note 120 and accompanying text for a discussion of the nontestimonial nature of statements used for impeachment purposes only.
444. See Dripps, supra note 120, at 35 (arguing that juries may interpret even statements offered only for impeachment as proof of guilt).
445. Id.
446. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting that law consistently assumes that jurors actually follow instructions, and Supreme Court has applied this assumption in various contexts).
447. Id. at 211.
448. See Bruton v. United States, 391 U.S. 123,137 (1968) (noting that codefendant's confession inculpating defendant posed significant constitutional hazard to warrant exclusion of testimony, regardless of limiting instructions provided to jury).
449. See id. at 133-34 (holding that failing to consider alternatives to introduction of codefendant's implicating-defendant confession unnecessarily infringes on nonconfessing defendant's right of confrontation).
450. Gray v. Maryland, 523 U.S. 185, 192 (1998) (discussing alternatives to introducing nontestifying codefendant's confession at trial).
451. See Jackson v. Denno, 378 U.S. 368, 388-89 (1964) (noting that jurors cannot be allowed to judge whether defendant's confession was voluntary because confessions deemed involuntary may still influence jury, thus violating defendant's constitutional rights).
452. See id. at 378-79 (discussing "Massachusetts procedure," whereby jury is permitted to hear confession only if found voluntary in initial determination by court).
453. See Graham, supra note 376, at 128 (reasoning that police will usually have multiple purposes when asking questions).
454. See supra note 54 and accompanying text for a discussion of the "primary purpose" test.
455. See, e.g., Yeager, supra note 172, at 1000 (arguing that Quarks Court failed to address situations where officers may have mixed motives for asking questions).
456. See Sidney M. McCrackin, Note. New York v. Quarles: The Public Safety Exception to Miranda. 59 TUL. L. REV. 1111, 1126 (1985) (opining that public safety exception applies even if primary motivation of police is to gather incriminating evidence); Reiner, supra note 178, at 2383 (suggesting that Quarles requires only that concern for public safety be present, even if that concern is not necessarily officers' primary concern); Yeager, supra note 172, at 1001 (noting that Quarles dealt with dual-purpose questions by not requiring safety to be primary motivation). But cf. Pizzi, supra note 177, at 598 ("The privilege and its attendant rules .. . should not control in a crisis situation where the primary purpose of the state conduct is to prevent a tragedy from occurring.").
457. Marks, supra note 238, at 1086; accord White, supra note 385, at 1235 (arguing that, to objective listener, policemen's comments in Innis could seem to have been made purely out of concern for public safety).
458. E.2d 1188 (N.Y. 2007).
459. Nieves-Andino, 872 N.E.2d at 1188-89. In the interest of full disclosure, I should reveal that from 1999 to 2004,1 was affiliated with the organization representing the defendant in this case, and that counsel is a close personal friend of mine.
460. Id. at 1189.
461. Id. at 1190.
462. Id. at 1192 (Jones, J., concurring).
463. See Friedman, Way Beyond, supra note 58, at 560 ("Labeling one purpose after the fact as primary seems to be a rather arbitrary exercise-and thus the test invites manipulation to enhance the chance that the evidence will be received." (footnote omitted)).
464. Pizzi, supra note 177, at 583 n.113 (quoting MODEL PENAL CODE § 3.04 cmts. at 17 (Tentative Draft No. 8,1958)); see also Brooks Holland, The Road 'Round Edmond: Steering Through Primary Purposes and Crime Control Agendas, 111 PENN ST. L. REV. 293, 309 (2006) ("Human motivation simply is too complex for discrete motives to be accurately isolated and prioritized as 'primary' and 'secondary,' as conduct often is produced not by any single objective, but by the full range of objectives operating together to influence human behavior."). Courts have struggled to apply the distinction between primary and secondary purposes in other areas as well. See, e.g., Holland. supra, at 296 (noting that Supreme Court has failed to "provide lower courts with a clear analytical framework" for distinguishing Fourth Amendment seizures whose primary programmatic purpose is crime control and those whose primary purpose extends beyond ordinary needs of law enforcement).
465. See supra notes 185-87 and accompanying text for a discussion of how modern police officers replicate the investigatory function of the sixteenth-century English magistrate.
466. The burden of proof generally falls to the party proffering the evidence. See, e.g., Idaho v. Wright, 497 U.S. 805, 816 (1990) (placing burden of proof on prosecution to show evidence is admissible pursuant to Confrontation Clause).
467. Russell D. Covey, The Unbearable Lightness σf Batson: Mixed Motives and Discrimination in Jury Selection, 66 MD. L. REV. 279, 287-88 (2007); see also Holland, supra note 464, at 308 (noting that "courts typically look for a traditional causal relationship" in cases of mixed motives). To some extent, I share Paul Gudel's skepticism over whether human motivation can adequately be captured by traditional causation analysis. See Paul J. Gudel, Beyond Causation: The Interpretation of Action and the Mixed Motives Problem in Employment Discrimination Law, 70 TEX. L. REV. 17, 70-96 (1991) (discussing failure of traditional causation analysis to serve as useful framework to evaluate mixed-motive employment discrimination cases). Nonetheless, the courts continue to utilize causation analysis in this way in a variety of contexts. See, e.g., Hudson v. Michigan, 126 S. Ct. 2159, 2164 (2006) (utilizing causation analysis to determine whether constitutional violation by police resulted in discovery of evidence); O'Neal v. McAninch, 513 U.S. 432, 446 (1995) (Thomas, J., dissenting) (suggesting that even majority opinion contains implicit requirement of causation to show that constitutional error resulted in guilty verdict); Price Waterhouse v. Hopkins, 490 U.S. 228, 239-42 (1989) (plurality opinion), superceded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075-76 (utilizing causation principles to determine whether adverse employment action was motivated by discriminatory animus). Accordingly, a causation approach to whether one motive or another was behind the gathering of information is at least consistent with what courts already do.
468. See Pardo, supra note 16, at 175 & n.346 (suggesting that courts should engage in counterfactual inquiry as to whether information would have been gathered even without investigatory purpose as "a useful way of locating the 'primary purpose"' pursuant to Davis).
469. See RESTATEMENT (SECOND) OF TORTS § 432(2) (1965) (formulating "substantial character" test as alternative to "but-for" test in cases of multiple sufficient causes).
470. See Nagareda, supra note 5, at 1064 ("The right to present witnesses ... tends to slip through the cracks of the conventional curriculum.").
471. S. 649 (1984).
472. S. Ct. 813 (2006).
473. S. 292 (1990).
474. S. 171 (1987).
475. S. 222 (1971).
476. S. 409 (1985).