The Supreme Court of the United States clarified the meaning and scope of the right to confrontation of one's accusers in Crawford v. Washington, 541 U.S. 36 (2004), holding that "the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination." Adams v. State, 316 Ga. App. 1 (2012); Pitts v. State, 280 Ga. 288 (2006). Non-
testimonial statements are subject to the normal hearsay rules.
Testimonial statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. Statements made by witnesses to police officers investigating a crime are testimonial in nature when the primary purpose of the statements is to establish or prove past events potentially relevant to later criminal prosecution. Miller v. State, 289 Ga. 854 (2011). Such testimonial statements may not be admitted into evidence unless the requirements of Crawford are satisfied. Even where such an interrogation is conducted with good faith, introduction of the resulting statements at trial can be unfair to the defendant if they are untested by cross- examination. Michigan v. Bryant, 131 S. Ct. 114 (2011); Philpot v. State, 309 Ga. App. 196 (2011).
On the other hand, statements made by witnesses to questions of investigating officers are non- testimonial when they are made primarily to enable police assistance to meet an ongoing emergency and not to create a record for trial. Such non-testimonial out-of-court statements are admissible if they meet one of the hearsay exceptions. Milford v. State, 291 Ga. 347 (2012); Pitts v. State, 280 Ga. 288 (2006).
Introducing a certification containing results of a forensic analysis, as well as a representation that those results are reliable, without eliciting the in- court testimony of the analyst and making the analyst available for cross-examination violates the Confrontation Clause. Hite v. State, 315 Ga. App. 221 (2012); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). The testimony of a lab supervisor who did not perform the tests at issue, but which were conducted by a lab technician who did not testify violates the Confrontation Clause. Disharoon v. State, 291 Ga. 45 (2012).
Admission of evidence in violation of Crawford will be considered harmless if there is no reasonable probability that the evidence contributed to a guilty verdict. Richard v. State, 281 Ga. 401 (2006).