Testimonial Statements
LeAndra N. Jackson
Liberty University
CJUS 410: Constitutional Criminal Procedure
Prof. John Demmitt
September 4, 2025
Testimonial Statements
The United States Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), focused
on the main purpose of the communication and made a distinction between testimonial and
nontestimonial statements. For statements made to resolve an ongoing emergency, it was
considered a non-testimonial statement; however, if the statement was made to establish facts
for later prosecution, it was considered a testimonial statement (Davis v. Washington, 2006).
Given the facts about the case and the Court’s rationale for distinguishing testimonial and non-
testimonial statements, both the photograph and the text messages exchanged with the law
enforcement officer should be admitted as evidence due to their non-testimonial nature.
A recent scholarly article supports this decision as it shows that evidence generated in
real time during emergency circumstances, such as digital communications highlighted in the
case during the unfolding incident, should not be considered testimonial statements because it
is not produced for prosecution use; instead, those digital communications were produced as
practical and protective ways to address instant safety concerns (Welton, 2024, pp. 855-861).
Another article that furthers this distinction between non-testimonial and testimonial
statements comes from The confrontation clause and state action. In this article, author John
Watts evaluates how the primary purpose test can be manipulated but agrees that
confrontation concerns happen when the government creates statements out of the court for
trial (Watts, 2024, pp. 399-405). This case involves a woman who sought rescue in an
unexpected, victim-initiated exchange, and the digital communications between her and the
officer are, at best, understood to be nontestimonial rather than evidence engineered by the
state. Thus, the woman’s photo and text messages sent during the ongoing threat to secure
rescue align with the Court’s reasoning and the scholarly analysis that supports their eligibility.
Biblical wisdom further highlights and reinforces the importance of reliable support as
Deuteronomy 19:15 states, “One witness is not enough to convict anyone accused of any crime
or offense they may have committed. A matter must be established by the testimony of two or
three witnesses” (New International Bible, 1978/2011, Deuteronomy 19:15). This verse shows
the importance of the need to corroborate to ensure justice. Taking into account the woman’s
case, additional testimony or evidence would be needed to fully meet both legal and biblical
ideals. Similarly, Proverbs 12:17 states, “An honest witness tells the truth, but a false witness
tells lies” (New International Bible, 1978/2011, Proverbs 12:17). Both scriptures proclaim that
reliable and truthful evidence is essential in effective judgment. Thus, the decision that the
woman’s photo and text messages should be considered as non-testimonial statements does
not change. The photo and texts can aid as initial, non-testimonial evidence and should be
accompanied by supporting proof, such as a testimony from the responding officer or
surveillance footage. This will help to promote the accuracy and fairness principles that remain
consistent in both scriptures, fortify justice, and guard against falsehood.
Technology plays an important role in ensuring safety during emergencies and highlights
the modern safety practices people use that show why digital communications are not
testimonial statements. An example of this is the many individuals today who use their technical
devices to share their location in real time with family members and friends when they feel
unsafe. This safety measure, like the one used by the woman, is not to create evidence for a
trial, but to secure immediate protection for themselves. The woman’s actions were lifesaving
measures during an ongoing emergency with her ex-husband, not her trying to obtain a
testimonial statement for
trial.
Concluding the above analysis and remaining consistent with Davis v. Washington, 547
U.S. 813 (2006), biblical principles, and recent scholarly articles, the photograph and text
messages should be accepted as non-testimonial evidence. The acceptance of the supporting
nontestimonial evidence will ensure the biblical principles of fairness and truth found in
Deuteronomy 19:15 and Proverbs 12:17 are upheld.
References
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224, 2006 U.S. LEXIS 4886,
74 U.S.L.W. 4356, 30 A.L.R.6th 599, 70 Fed. R. Evid. Serv. (Callaghan) 472, 19 Fla. L.
Weekly Fed. S 299 (Supreme Court of the United States June 19, 2006,
Decided). https://advance.lexis.com/api/document?
collection=cases&id=urn%3acontentItem%3a4K71-4DC0-004C-1017-
0000000&context=1519360&identityprofileid=RD62R751714.
New International Bible. (2011). The NIV Bible. https://www.thenivbible.com (Original work
published 1978)
Welton, B. (2024). Meaningful machine confrontation. Stanford Law Review, 76(4), 845–891.
https://search.informit.org/doi/10.3316/informit.T2024052600009790059566877
Watts, J. L. (2024). The Confrontation Clause & State Action. SMU Law Review : A Publication of
Southern Methodist University School of Law., 77(2).
https://doi.org/10.25172/smulr.77.2.7
REPLIES:
Hello, Allison
This discussion post made a strong case on why the woman’s text messages and photograph
should be admitted as non-testimonial evidence because the purpose behind those
messages and the photo was to seek help in the midst of an emergency rather than to
prepare testimony for a trial. The use of the Davis v. Washington, 547 U.S. 813 (2006)
case and the Joel Samaha reference strengthened the argument and provided a clear
foundation for understanding how courts distinguish testimonial from non-testimonial
statements.
Adding to the analysis provided, there are scholarly articles that further support the
admissibility of such communications. In his article Meaningful machine confrontation,
Benjamin Welton highlights that digital evidence created in real time during
emergencies should not be considered testimonial statements because it is not
produced for prosecution use; instead, those digital communications were produced as
practical and protective ways to address instant safety concerns (Welton, 2024, pp. 855-
861). Likewise, John Watts emphasizes the same thing in his article The confrontation
clause and state action. He informs his readers that confrontation concerns generally
happen when the government creates statements outside of court and not when a
victim initiates communication to secure immediate protection (Watts, 2024, pp. 399-
405). The distinction between nontestimonial statements and testimonial statements
these articles highlight strengthens the conclusion that the woman’s actions fall within
the category of non-testimonial evidence.
Finally, the scriptural integration of Deuteronomy 19:15 within the discussion was great and
thoughtful, as the point of corroboration aligned with biblical principles. This verse
shows the importance of the need to corroborate to ensure justice (New International
Bible, 1978/2011, Deuteronomy 19:15). Lastly, connecting to the scripture and taking
into account the woman’s case, additional testimony or evidence would be needed to
fully meet both legal and biblical ideals.
Hello, Joshua
This discussion provides a clear personal analysis of how the woman’s text messages and
photograph should be considered non-testimonial evidence, highlighting that the main
purpose of the communications was to secure immediate protection rather than to
create evidence for prosecution. The use of the scholarly article “Testimonial” hearsay—
reach and limits of the Crawford doctrine strengthened the overall explanation of how
statements can change from non-testimonial to testimonial once the emergency
subsides (Mueller et al., 2018, pp. 5-7).
Adding to this analysis, Benjamin Welton highlights in his article Meaningful machine
confrontation that digital evidence created in real time during emergencies should not
be considered testimonial statements because it is not produced for prosecution use;
instead, these digital communications serve as practical and protective ways to address
instant safety concerns (Welton, 2024, pp. 855-861). Together, these articles reinforce
the conclusion. The woman’s actions clearly fall within the non-testimonial category.
Finally, the use of Romans 14:12 at the end of the discussion was thoughtful and showed the
true meaning of being held accountable before God. When this scripture is combined
with non-testimonial evidence, this biblical perspective shows the importance of seeking
justice through legal and moral measures, even when human systems fail on earth (New
International Bible, 1978/2011, Romans 14:12). Thus, the woman’s texts and photograph
highlight how real time communications using technology during emergencies can be
submitted as non-testimonial evidence under current legal ideals.
Mueller, C. B., Kirkpatrick, L. C., & Richter, L. (2018). § 8.84 “Testimonial” Hearsay—Reach
and Limits of the Crawford Doctrine. C. Mueller, L. Kirkpatrick, & L. Richter,
Evidence, 8. http://dx.doi.org/10.2139/ssrn.3277079
