Also known as: extrajudicial statement · extrajudicially · out-of-court statements
Written by attorneys — see sources below.
2 senses
An out-of-court statement offered for its truth. Such statements trigger the Confrontation Clause when they are testimonial because the declarant must be unavailable and the defendant must have had a prior opportunity for cross-examination.
An out-of-court statement offered for its truth. Such statements trigger the Confrontation Clause when they are testimonial because the declarant must be unavailable and the defendant must have had a prior opportunity for cross-examination.
A statement made by a lawyer outside judicial proceedings. A lawyer participating in litigation must not make such a statement that the lawyer knows or reasonably should know will be publicly disseminated and will create a substantial likelihood of materially prejudicing an adjudicative proceeding.
A statement made by a lawyer outside judicial proceedings. A lawyer participating in litigation must not make such a statement that the lawyer knows or reasonably should know will be publicly disseminated and will create a substantial likelihood of materially prejudicing an adjudicative proceeding.
Each sense below has its own examples, sources, and questions.
After an assault, Esther Eisenberg gave police a detailed account naming the assailant. At trial the prosecution offered the recording to prove the assailant's identity. Because the statement was testimonial, the court excluded it when the declarant was unavailable and the defendant had never cross-examined her.
Elise Everly called 911 while her assailant was still inside the home. She described the attack in real time. The court admitted the statements because they were nontestimonial. Their primary purpose was to enable police to respond to an ongoing emergency rather than to create evidence for later prosecution.
On February 1, 2001, Michelle McCottry placed a 911 call reporting that her former boyfriend Adrian Davis was beating her with his fists inside her house. The 911 operator asked a series of questions about the location, whether weapons were involved, whether Davis had been drinking, his full name and middle initial, and his current actions. McCottry answered that Davis had just run out the door and was leaving in a car. Police arrived within four minutes, observed fresh injuries on McCottry's face and forearm along with her shaken state, and noted her efforts to gather her belongings and children. Davis was charged with felony violation of a domestic no-contact order. At trial McCottry did not appear, and the court admitted the 911 recording over Davis's Confrontation Clause objection, leading to his conviction, which the Washington Court of Appeals and Supreme Court affirmed. On February 26, 2003, police responded late at night to a reported domestic disturbance at the home of Hershel and Amy Hammon. Upon arrival Amy Hammon appeared somewhat frightened on the front porch but initially stated nothing was the matter. After officers entered and separated the couple, one officer questioned Amy in the living room while the other stayed with Hershel in the kitchen. Amy described a verbal argument that became physical, including Hershel breaking the furnace, lamps, and phone, shoving her into broken glass, and punching her in the chest. Amy then completed and signed a battery affidavit stating those events. Hershel was charged with domestic battery and probation violation. At his bench trial Amy did not appear, and the court admitted the officer's recounting of her statements as excited utterances along with the affidavit over objection. The Indiana Court of Appeals affirmed Hershel's convictions, and the Indiana Supreme Court held Amy's oral statements nontestimonial while finding the affidavit testimonial but its admission harmless beyond a reasonable doubt. The United States Supreme Court granted certiorari in both Davis v. Washington and the consolidated Hammon v. Indiana cases to address the testimonial character of the statements. The evidence introduced at each trial consisted solely of the out-of-court statements, as neither victim appeared to testify and no other witnesses could identify the assailant or describe the cause of the injuries.
View caseEmmett Egan's codefendant gave police a statement admitting he alone committed the killing. The prosecution withheld the statement from Egan's counsel. After conviction the court ordered a new trial because the suppressed extrajudicial statement was material to guilt or punishment.
Brady and his companion Boblit were found guilty of murder in the first degree and were sentenced to death following separate trials in Maryland, with Brady tried first. At his trial Brady took the stand and admitted his participation in the crime but claimed that Boblit did the actual killing. Prior to the trial Brady's counsel requested the prosecution to allow him to examine Boblit's extrajudicial statements. Several of those statements were shown to him. One statement dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to Brady's notice until after he had been tried, convicted, and sentenced and after his conviction had been affirmed. Brady moved the trial court for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. His appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland Post Conviction Procedure Act. The petition for post-conviction relief was dismissed by the trial court. On appeal the Court of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the question of punishment, not the question of guilt. The Supreme Court granted certiorari to review the case. The crime was murder committed in the perpetration of a robbery. In Maryland punishment for that crime is life imprisonment or death, the jury being empowered to restrict the punishment to life by addition of the words "without capital punishment." By reason of the state constitution the jury in a criminal case are the judges of law as well as of fact.
2 common questions
A statement is testimonial when made under circumstances that would lead an objective witness to reasonably believe it would be available for use at a later trial. Formalized materials such as affidavits, depositions, and custodial examinations fall within this class.
Supporting sources
No. Such statements are admissible against coconspirators as vicarious opposing-party statements. The prosecution need not show the declarant's unavailability.
Supporting sources
Evelyn Ellison, counsel for the defendant in a high-profile fraud case, told reporters that the government's star witness had fabricated documents. The statement was widely broadcast. The disciplinary board found a violation because Ellison knew or should have known the remarks would reach the jury pool and materially prejudice the trial.
Elijah Edwards, representing a public official, held a press conference and described the charges as politically motivated without further detail. The court later found the disciplinary rule unconstitutionally vague as applied because the safe-harbor language failed to give fair notice of what elaboration was prohibited.
Esme Ellington, a reporter, refused to reveal the source of a story describing a prosecutor's extrajudicial comments about an ongoing grand-jury investigation. The court held that the First Amendment did not shield the reporter from appearing before the grand jury to answer questions about the source of those statements.
In November 1969, Paul Branzburg, a staff reporter for the Courier-Journal newspaper in Louisville, Kentucky, published an article describing his observations of two individuals synthesizing hashish from marijuana in Jefferson County. The article included a photograph and stated that Branzburg had promised not to reveal the identities of the two. He was subsequently subpoenaed by the Jefferson County grand jury and refused to identify the individuals he had observed. A state trial court ordered him to answer, and the Kentucky Court of Appeals denied his petition for relief. In January 1971, Branzburg published a second article detailing drug use in Frankfort, Kentucky, based on interviews with several dozen users over two weeks. He was subpoenaed by the Franklin County grand jury to testify about violations of drug statutes. The Court of Appeals denied the requested writs and rejected his First Amendment claim. This Court granted certiorari. In July 1970, Paul Pappas, a television newsman-photographer, was assigned to cover civil disorders in New Bedford, Massachusetts, involving the Black Panthers. He entered Panther headquarters under an agreement not to disclose what he saw or heard inside except for an anticipated police raid, which did not occur. Two months later, he was summoned before the Bristol County grand jury but refused to answer questions about his observations inside the headquarters. The Massachusetts Supreme Judicial Court held that he must appear and testify. In February 1970, Earl Caldwell, a New York Times reporter covering the Black Panther Party in San Francisco, received a subpoena to appear before a federal grand jury investigating possible violations of federal law by the group, including threats against the President. The District Court denied the motion to quash but issued a protective order. Caldwell refused to appear and was held in contempt. The Court of Appeals reversed, recognizing a qualified privilege. This Court granted certiorari and consolidated the cases.
2 common questions
No. The rule bars only those extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and will create a substantial likelihood of materially prejudicing the proceeding. Certain limited categories of information, such as the claim or defense involved, may be stated without violation.
Supporting sources
No. Rule 3.8(f) requires a prosecutor to refrain from such statements except when necessary to inform the public of the nature and extent of official action and to serve a legitimate law enforcement purpose. The prosecutor must also take reasonable care to prevent associated personnel from making prohibited statements.
Supporting sources
…or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois , 502 U. S. 346, 365 (1992) (Thomas, J., joined by…