Assume for the sake of argument that a child's statements to a SANE examiner are testimonial. Assume also that defendant has confessed, but that I have no other evidence to show corpus delicti, i.e. that an offense actually happened, because the child can't testify. Is using a testimonial statement for corroboration using it for the truth of the matter asserted? It seems like it is because it only corroborates the offense by the truthful substance of the statement--"he touched me there." Am I analyzing that right?

If another testimonial statement corroborates the defendant's statement, at bottom it still has to be offered for the truth. If we don't care how true the statement is, it doesn't support the defendant's confession.

But what about cases where the testimonial statements are contextual as part of another conversation. Having done a wee bit o' research (after me Lucky Charms), a few federal courts have allowed CI statements in that are part of a recorded drug buy (featuring both the CI and the defendant) under the theory that the CI's portion of the conversation is not for the truth of the matter asserted. Those courts hang their hat on a small paranthetical in a Crawford that says testimonial statements can be still be offered if not for the truth of the matter asserted.

The CCA is wrestling with this issue right now in Hernandez v. State (a case out of San Antonio). But the holding in Reyna that offering evidence "not for the truth of the matter asserted" or "credibility" doesn't preserve a Confrontation Clause theory of admissibility (or exclusion) would seem to cut against an argument that Crawford doesn't apply to testimonial statements not offered for the truth of the matter asserted.

I'm not trying to make a point here, just looking for backup or correction.

Well, then I agree. The statement won't do any good if it's offered merely to show that the statement was made. The corpus delicti has to be supported with substantive evidence. I don't think you can argue that it's not for the truth its just for corroboration because it doesn't corroborate anything unless it's for the truth.

Unless, of course, the defendant is prosecuted for perjury for having said under oath that the girl didn't say what she says she said and we offer it as proof that she said what he initially said she didn't say.

See what I'm sayin'?

No. If the victim testified "he touched my private" that would make corpus delecti for his confession. If that statement instead came in as an excited utterance, I think you have corpus delecti. Can you do it with the same statement if it is testimonial under Crawford? I don't think so.

I don't think so either.