As we have previously examined in this space, herehere and here , the Supreme Court’s Confrontation Clause jurisprudence has when considering the admission of a prior statement by a witness most recently focused on whether or not the statement was “testimonial.” The Court tells us that a statement is testimonial if made under circumstances supporting the objective belief that the statement was either created or recorded for use at trial, the classic example being answers offered in response to deliberate police interrogation.

The recent opinion in United States v. DeLeon, 678 F.3d 317 (4th Cir. 2012) exemplified a “non-testimonial” statement made out of court, the admission of which passed constitutional muster. DeLeon was convicted of killing his stepson near an Air Force Base in Japan, where the child’s mother was stationed. With no eyewitness to the murderous blow inflicted upon the child, the prosecution built a circumstantial case dependent on evidence of prior physical abuse of the victim by the defendant. Most damning was the trial testimony of a civilian Air Force social worker who met with the family after a school referred the child for possible abuse some five months before his death. The child described to the social worker a pattern of minor physical abuse by his stepfather, no single act of which was apparently sufficiently serious to take the child out of the home or to go to criminal authorities.

DeLeon objected on Confrontation Clause grounds to the social worker’s recitation in court of the victim’s earlier statements, which had been admitted under Fed. R. Evid. 803(4), as a statement related to medical diagnosis. On appeal, the Fourth Circuit upheld the admission of the child’s previous statements as non-testimonial and thus upheld the conviction. While the child’s statements were not made to the social worker to allow her to respond to an on-going emergency -- the paradigm criterion which would render a victim’s statements non-testimonial, as in the gunshot victim case of Michigan v. Bryant, 131 S. Ct. 1143 (2011) -- there were other circumstances supporting the conclusion that the child’s statements were not procured as trial testimony: the social worker did not have a prosecutorial responsibility; she did not record the interview for use as evidence; she did not advise the child that his answers would be reported to the authorities; and the primary purpose of the meeting was to formulate a treatment plan.