Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination of the declarant. The Crawford Court did not define the term "testimonial" exhaustively, leading to some confusion in the ranks. The Court's more recent jurisprudence has been unpredictable, such as its decision last year that the Confrontation Clause requires the government to present live testimony in order to admit lab test results in drug and other cases.

In at least one major category of government-developed evidence, it appears that lower court confusion has led to lower court error in applying Supreme Court precedent. Lower courts have since Crawford generally treated as nontestimonial, and thus impervious to Confrontation Clause objection, co-conspirator statements made to and often recorded by government informants. Recently, for example, the Sixth Circuit held in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) that statements made by Johnson's co-conspirator, O'Reilly, to a government informant were admissible against Johnson. They qualified as an exception to the hearsay rule under FRE 804(b)(3) as statements against penal interest, where O'Reilly was presumed unavailable to testify because he was likely to assert his Fifth Amendment privilege. As for the Confrontation Clause, the court of appeals held that O'Reilly's statements were nontestimonial because they were not made in response to police interrogation. Id. at 325-26.

The Sixth Circuit cited other, post-Crawford decisions which have likewise held that co-conspirator statements to informants are nontestimonial under the Sixth Amendment. For example, the Third Circuit in United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), held that statements of co-conspirators made to a CI were admissible under the Confrontation Clause. What underlies the holdings in these cases is the essential proposition that answering the questions of and responding to a government informant is different for Sixth Amendment purposes than making the same type of statements to a known government representative, as in a formal interview with an agent or police officer. The problem with this proposition is that the Supreme Court's Sixth Amendment jurisprudence shows it to be unfounded.

In Massiah v. United States, 377 U.S. 201 (1964), the Court long ago held that it was a violation of the Sixth Amendment to admit at trial the statements of the defendant made to a government informant after he had been arrested and his right to counsel had attached. To the argument that there was a meaningful difference under the Sixth Amendment between post-charge interrogation by the police and interrogation by an informant working for the police, the Court said unequivocally:

It is true that in the Spano [v. New York] case [excluding a post-indictment confession] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But [the Sixth Amendment rule] must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.

Under Massiah, then, the distinction drawn in cases like Johnson and Hendricks based on whether the interrogator is or is not wearing a uniform and carrying a badge is a meaningless one. If the person to whom statements are made is either a law enforcement agent or one doing the bidding of law enforcement, then those statements should be deemed "testimonial" under the Sixth Amendment and they should not be admitted unless the declarant is unavailable at trial and was subject to cross-examination about the statement at an earlier time. The second element of that test will never been met in the informant situation and those statements should be thrown out.