CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 11, 2011

"The Informant!: Ohio Court Finds Confidential Informant's Statement Was a Nontestimonial Present Sense Impression"

EvidenceProf Blog has an interesting discussion of this Confrontation Clause case. In part:

So, let's say that a detective drives a confidential informant to a controlled drug buy. After leaving the undercover car, the informant approaches the co-defendant and engages him in conversation. The informant then returns to the detective and tells him that the co-defendant "had a gun." Is this statement a present sense impression under Rule 803(1)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District in State v. Bulger, 2011 WL 3359861 (Ohio App. 8 Dist. 2011), the answer is "yes," and I agree. But is the statement "testimonial" for Confrontation Clause purposes?

. . .

Didn't the CRI "expect[] his statement to be used as evidence at trial?" Wasn't that the whole purpose of him taking part in the controlled buy? Now, I think that it is clear from the above facts that the primary purpose of the CRI's statement was to enable police assistance to meet an ongoing emergency, which would mean that the statement was not "testimonial" under Davis.

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