It's just a phone call from defendant to wife, whom he kills years later. The wife of course, knows her life is in danger and records the call "in case something happens" and gives the tape to a relative who gives it to us. D's implication now is that she set him up during the call by her comments and by recording it.

I think I probably have a better argument that casual statements made to an aquaintence (how the hell to do you spell that?)is just not testimonial. The cases seem to trend that way. Forfeiture looks dicey because her murder was a crime of passion, and not really intended to silence her (although i can argue otherwise).

Acquaintance. "Just talk" between private people doesn't seem testimonial to me. More of a simple hearsay problem.

all right. I will stick with the not hearsay/not testimonial/probably forfeiture.

As to the wife/murdering husband call I agree with the analysis that this is not testimonial as its not done by a state actor, and should not have been in anticipation of any particular litigation. Wife may have worried over what he might do but that's different from police coming to a scene, conducting an investigation, and making a decision to arrest.

The defense may argue the mere fact that she made the call and took steps to preserve it means she was anticipating litigation someday but that's not the same as anticipation as it is used in context in Crawford v. Washington or in Davis v. Washington (the case that allowed 911 calls based on emergency doctrine and distinguished that scenario from anticipating litigation). Your facts are stronger because it wasn't even a state actor eliciting the statement.

As to the other issue of Co-Defendant statements and crawford, there's actually been some decent published caselaw in the federal courts that should be of use to you.

Try pulling the following cases (and shepardizing because I'm pulling them from a memo I wrote in December 2007):

Co-Defendant Statements
� U.S. v. Rodriguez-Duran, 2007 U.S. App. LEXIS 26879 (1st Cir. 2007)
o Applying Crawford to hold, inter alia, that it was error to admit a co-defendant�s out of court confession as evidence against the defendant in a joint trial
� U.S. v. Williams, 2007 U.S. App. LEXIS 24726 (2nd Cir. 2007)
o Applying Crawford to hold, inter alia, that it was NOT error to admit co-defendant�s inculpatory statements that also implicated defendant in murder in trial against defendant
� Bruton v. U.S., 391 U.S. 123
� Richardson v. Marsh, 481 U.S. 200.
� Gray v. Maryland, 523 U.S. 185
� Smith v. State, 187 S.W.3d 186, 192-94 (Tex.App. - Fort Worth 2006 pet. ref'd) (out-of-court statements of two co-defendants -- to a friend -- about the crime the co-defendants and the appellant committed were properly admitted).