For the fascinating exchange between the justices and counsel it is well worth reading the transcript in yesterday's Crawford case argued before the Supreme Court of the United States. Here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-150.pdf

In the end, it all seems to boil down to: when deciding if a statement is testimonial or not, what degree of significance is attached to the officer's intent as opposed to the declarant's intent?

[

[This message was edited by John A. Stride on 10-06-10 at .]

It seems to me that the focus should be entirely on the declarant's intent. The whole issue behind nontestimonial is that it's not something that was intended for prosecution purposes. All that matters is if the declarant thought it was for prosecution purposes or not. The officer's subjective intent should only matter to the extent that it was communicated to the declarant.

As in search and seizure situations, I believe the intent of the officers should be put aside. The focus should be less on the content of the questions than the other surrounding circumstances. In emergency situations, officers and declarants don't perfectly frame their questions or answers--they just speak. If Crawford demands more, it may live a short life or impose some very harsh consequences.

[This message was edited by John A. Stride on 10-06-10 at .]