Toward a Unified Theory of Testimonial Evidence Under the Fifth and Sixth Amendments
Volume 80, No. 4, Winter 2007
By Michael J. Zydney Mannheimer [PDF]

There is an obvious parallel between the language of the Self-Incrimination Clause and that of the Confrontation Clause: the former forbids the government from forcing a criminal suspect to become a “witness against himself,” while the latter requires the government to confront a criminal defendant with the “witnesses against him.” The irresistible inference is that the word “witness” means the same thing in both Clauses. And, indeed, the Supreme Court has hinged the question of whether someone is a “witness” in both contexts on whether she has given “testimonial” evidence. Yet, at least at first blush, the Court has used the word “testimonial” in two very different ways. In the Self-Incrimination Clause context, “testimonial” refers to statements of fact or value, as opposed to physical evidence or statements introduced merely to prove how they were made (the “assertion” requirement). Pursuant to the Confrontation Clause, “testimonial” refers to statements made under circumstances objectively indicating some contemplation of later use at trial, as opposed to statements made in response to an ongoing emergency or for some other reason (the “contemplation of litigation” requirement).

But a closer look reveals that the word “testimonial” means much the same in both contexts. That is, there is both an “assertion” requirement and a “contemplation of litigation” requirement in each Clause. We simply emphasize the former in the Self-Incrimination Clause context and the latter in the Confrontation Clause context. In the latter context, we typically proceed on the assumption that the statement in question is hearsay–that is, offered for its truth, thus satisfying the “assertion” requirement–and only if it also satisfies the “contemplation of litigation” requirement do we say the Confrontation Clause is implicated. By contrast, in the Self-Incrimination Clause context, we typically assume that the “contemplation of litigation” requirement has been met–because, after all, the evidence has been taken from one suspected of a crime–and then determine whether the evidence constitutes an assertion.

This emerging unified view of testimonial evidence provides the best explanation thus far for much of the Court’s Fifth Amendment jurisprudence. When we see that the Fifth Amendment’s assertion requirement parallels the Sixth Amendment’s reliance on the definition of hearsay, it becomes clear that the impeachment exception to Miranda is justified on the ground that statements used to impeach are not offered for their truth. The idea that the Self-Incrimination Clause is implicated only where evidence has been created in contemplation of litigation has the benefit of explaining the other exceptions to Miranda –the “public safety,” “routine booking question,” and “undercover officer” exceptions–as well as the “required records” doctrine.

This view also demands some minor modifications to both Fifth and Sixth Amendment jurisprudence to bring each in line with the other. First, the definition of “interrogation” pursuant to Miranda should be narrowed to cover only those questions or other words or conduct that, objectively speaking, seek information for use at trial. Second, Miranda should apply only to statements offered for their truth at trial. Third, New Jersey v. Portash should be overruled. Finally, statements should be deemed “nontestimonial” for purposes of both Clauses only when: (1) the exchange of information would have taken place even had there been no evidence-gathering motive, and (2) the noninvestigatory motive was a substantial factor in bringing about the exchange of information.

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