Even if you’re not an attorney, you’re probably a little bit familiar with the hearsay rule and the constitutional right of confrontation. Broken down to its most basic form, you can’t go to court and say what someone said out of court. Of course, except when you can. There are exceptions to the rule and exceptions to the exceptions.
Even so, the same basic rule is true for people’s written statements. You can’t have a witness write an affidavit of her version of events and expect the judge to admit it as evidence. To allow evidence like that violates the other party’s constitutional right to confrontation. That is, the right to cross examine people that testify against you.
But when is an written, out-of-court statement not even testimony?
The simple answer is when the statement was not prepared with court in mind.
Example: Kyle goes to the dry cleaners. Kyle gets a receipt from the dry cleaners. The receipt is stamped with the date and time. Later, Kyle is charged with a crime. Kyle wants to admit the receipt to show that he was not at the crime scene at that date and time, and that he was at the dry cleaners instead.
The dry cleaning receipt was not prepared with court in mind. The dry cleaners issued the receipt without thinking that Kyle would want to use if for court in the future. So the receipt is non-testimonial. Kyle can admit the receipts with a simple affidavit from the dry cleaners showing that issuing receipts is standard business.
Counter Example: Susan is fighting for custody of her kids. She goes to a psychologist. The psychologist examines Susan. The psychologist issues a report that Susan is a fit custodian.
The psychological report was prepared with court in mind. The psychologist knew that the report was prepared for the purposes of attending court. The report is testimonial. Susan can’t admit the report in court without bringing the psychologist to personally talk about it.
The legal standard is whether a person would reasonably expect the statement to be used in court. The biggest Supreme Court case on this issue is Crawford v Washington, 541 U.S. 36 (2004).