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THE PRAGMATIC JURISTS

APPROACH TO THE
CONFRONTATION CLAUSE:
JUSTICE MARTHA B. SOSMANS
CONCURRENCE IN COMMONWEALTH
V. GONSALVES

RITU BHATNAGAR*

Abstract: One of the defining aspects of the late Justice Martha Sosmans
jurisprudence is her striking pragmatism and moderation, which are
embedded in her approaches to the most complex of legal quandaries.
During her seven years on the bench of the Massachusetts Supreme Judicial
Court (SJC), she crafted numerous precise and careful opinions, all imbued
with the vigilance of a straightforward jurist offering lower courts well-
reasoned guidance and practical tests, rather than bright-line rules that are
susceptible to differing interpretations. This Article offers a glimpse of
Justice Sosmans trademark moderate jurisprudence through an analysis of
her concurrence in Commonwealth v. Gonsalves. Demonstrating the
qualities that defined Justice Sosman as a pragmatic, and truly distinguished,
jurist, her Gonsalves concurrence offers a skillful dissection of the terms
testimonial and interrogation in the context of the admissibility of out-
of-court, accusatory statements.

Gonsalves strove to interpret and apply the new standards for testimonial
statements created by the Supreme Court in Crawford v. Washington, which
found that out-of-court, accusatory statements made by an unavailable
witness violate the Confrontation Clause of the Sixth Amendment.
However, the SJC did more than apply Crawfords standards: Gonsalves
extended the Supreme Courts holding, finding that all out-of-court
statements induced through police interrogation are per se testimonial, and

* Associate, Latham & Watkins LLP; Judicial Law Clerk to the late Justice Martha
Sosman of the Supreme Judicial Court of Massachusetts (2005-2006); J.D., University of
California, Berkeley, Boalt Hall; M.A. and B.A., Stanford University.

485
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thus subject to the Confrontation Clause. This over-expansive reading of

Crawford formed the basis for Justice Sosmans vehement objections to the
Gonsalves opinion.

In certain ways, some of Justice Sosmans philosophical tribulations

concerning this line of Confrontation Clause jurisprudence are mirrored in
the Supreme Courts later Confrontation Clause decision in Davis v.
Washington. The echoes of Justice Sosmans concerns, however, are not
doctrinally reflected in Davis. Rather, in large part, the Davis Court arrived
at conclusions similar to the findings of the SJC in Gonsalves, resulting in
still-muddled definitions of key terms, unclear rules, and widespread
uncertainty amongst state and lower federal courts. Thus, the holding in
Davis has suffered from the very short-comings that were identified and
critiqued by Justice Sosman in Gonsalves.

This Article undertakes a close examination of the SJCs majority opinion in

Gonsalves, presenting Justice Sosmans main objections to the decision, as
outlined in her concurrence. Analyzing the Davis holding in the context of
Justice Sosmans concurrence in Gonsalves, this Article argues that state and
lower federal courts should not look to Davis for guidance on the
Confrontation Clause, as Davis presents impractical rules that have already
created vastly disparate rulings amongst lower courts. Instead, courts should
adopt more pragmatic and fluid approaches to Confrontation Clause
jurisprudence, such as the methodology developed by Justice Sosman in her
concurrence to Gonsalves. Moderate Confrontation Clause jurisprudence
will ensure greater uniformity amongst decisions in Confrontation Clause
casessomething that is currently and notably absent in the post-Crawford
and Davis era.

INTRODUCTION
The legacy of Justice Martha Sosmans jurisprudence lies in her
striking pragmatism and evident moderation, which are embedded in her
approaches to the most complex and controversial of legal quandaries.
Highly regarded by her peers on the Massachusetts Supreme Judicial Court
(SJC), Justice Sosman issued judicial opinions that garnered the
admiration of fellow jurists. SJC Chief Justice Margaret Marshall aptly
described her colleagues incisive, and simultaneously measured, analytical
prowess, saying, [S]he had an almost unparalleled capacity to identify the
critical legal issue in any case and to resolve . . . [it] in clear, coherent
prose, so that both the judgment . . . and reasoning of the court [were]
readily understandable.1 In Justice Sosmans seven years at

1. David Abel, Justice Sosman of the SJC Dies at 56, BOSTON GLOBE, Mar. 12, 2007,
at B1, available at http://boston.com/news/local/articles/2007/03/12/justice_sosman_
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Massachusetts highest court, she authored numerous precise and carefully-

crafted opinions, all imbued with the vigilance of a straightforward jurist
offering lower courts well-reasoned guidance and practical tests, rather
than bright-line rules, which are susceptible to differing interpretations
when applied to unpredictably varied fact patterns in lower courts.
Through an analysis of Justice Sosmans concurrence in
Commonwealth v. Gonsalves,2 this Article offers a glimpse of the judges
sensible and shrewd application of moderation to complicated and
contentious legal questions that frequently invite extreme holdings.
Demonstrating the qualities that defined Justice Sosman as a pragmatic and
truly distinguished jurist, her Gonsalves concurrence offers a skillful
dissection of the terms testimonial and interrogation in the context of
the admissibility of out-of-court, accusatory statements.
In this Article, I venture to demonstrate the useful insight rooted in
Justice Sosmans Gonsalves concurrence, which offers lower courts a
viable approach to Confrontation Clause analysis. In doing so, I review the
starkly differing guidance set forth by the United States Supreme Court and
the SJC regarding applications of the Confrontation Clause, and the
troublesome ramifications of these courts analyses. I begin in Part I by
providing a brief background on the Supreme Court and SJCs recent
Confrontation Clause jurisprudence. In Part II, I examine the SJCs
majority opinion in Gonsalves. Then, in Part III, I present Justice Sosmans
main objections to the Gonsalves opinion, as outlined in her concurrence.
Part IV includes an overview of the Davis v. Washington3 holding and an
analysis of the Davis opinion in the context of Justice Sosmans
concurrence in Gonsalves. Part V discusses approaches modeling Justice
Sosmans concurrence that should be adopted by lower courts in
Confrontation Clause analyses.4

I. BACKGROUND
In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .
United States Constitution, Sixth Amendment

[E]very subject shall have the right to produce all proofs, that may

of_the_sjc_dies_at_56/?page=full.
2. 833 N.E.2d 549, 562-75 (Mass. 2005) (Sosman, J., concurring in part).
3. 126 S. Ct. 2266 (2006) (decided together with Hammon v. Indiana, 126 S. Ct. 552
(2006)).
4. This Article does not discuss the excited utterances exception and Gonsalves
application of the exception to the Confrontation Clause, due to the Articles focus on
testimonial statements and the boundaries of police interrogations.
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be favorable to him; to meet witnesses against him face to face, and to be

fully heard in his defense by himself . . . .
Massachusetts Declaration of Rights, Part I, Article XII

In recent years, the United States Supreme Court has revisited the
Confrontation Clause of the Sixth Amendment, endeavoring to unravel
strands of the ever-tangled terminology implicated in relation to out-of-
court, accusatory statements made by an unavailable witness. In the
landmark decision of Crawford v. Washington,5 the Supreme Court
established that the use of testimonial out-of-court statements, which have
either not been subject to cross-examination, or have arisen from a formally
unavailable witness, are in violation of the Sixth Amendments
Confrontation Clause. Although the Supreme Court declined to define the
term testimonial, it did state that testimonial material included:
[1] ex parte in-court testimony or its functional equivalent
that is, materials such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially[;] [2] extrajudicial
statements . . . contained in formalized testimonial materials[;]
[and] [3] statements that were made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial[.]6
In the aftermath of Crawford, state and lower federal courts briskly
set about applying the Crawford framework to cases within their
jurisdictions. However, the Crawford decision, mired in faulty analysis and
beleaguered by the Courts attempts to create bright-line rules for situations
marked by ineffability, offered lower courts less uniform guidance and
more of an opportunity for analytically disparate decisions to surface across
the country.
The SJC entered the veritable fray in 2005, as it strove to interpret and
apply the newly created standards for testimonial statements in Crawford.

5. 541 U.S. 36 (2004). Crawford effectively uprooted Ohio v. Roberts, 448 U.S. 56
(1980), which had been governing Confrontation Clause jurisprudence for over two
decades. Roberts held that the Confrontation Clause excluded only unreliable hearsay and
proposed that firmly rooted hearsay exceptions could determine reliability. Roberts, 448
U.S. at 66. As a result, the [Confrontation] Clause still had only a very limited effect. . . .
[Crawford] changed the landscape dramatically. In Crawford, the Supreme Court held that
the Confrontation Clause does not constitutionalize . . . hearsay. . . . A prosecution witness
must give testimony in the presence of the accused, subject to cross-examination. Richard
D. Friedman, Crawford, Davis and Way Beyond, 15 J.L. & POLY 553, 554-55 (2007).
6. Crawford, 541 U.S. at 51-52 (internal citations omitted) (alteration in original).
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The SJC set out into the unraveling landscape of post-Crawford ambiguity
with its decision in Gonsalves.7 Writing for the majority of the court,
Justice Francis Spina in Gonsalves applied the analysis outlined in
Crawford liberally, broadening it to find that all out-of-court statements
induced through police interrogation are per se testimonial, and are thus
subject to the Confrontation Clause.8 A statement that is not per se
testimonial may still be testimonial in fact, depending on an analysis of
whether a reasonable person in the declarants position would anticipate
his statements being used against the accused in investigating and
prosecuting a crime.9 With this majority opinion in Gonsalves, the SJC
adopted and effectively extended the Crawford holding. It is this over-
expansive reading of Crawford that formed the basis for Justice Sosmans
vehement objections to the Gonsalves opinion.10 In her concurrence, which
is emblematic of her prescient and sharp jurisprudence and captures her
characteristic ability to pinpoint analytical deficiencies,11 Justice Sosman
rebuked the SJC for over-extending the term testimonial as outlined in
Crawford.12
In certain ways, some of Justice Sosmans philosophical tribulations
concerning this line of Confrontation Clause jurisprudence, as outlined in
her Gonsalves concurrence, are mirrored in the Supreme Courts later
Confrontation Clause decision in Davis.13 The echoes of Justice Sosmans
concerns, however, are not doctrinally reflected in Davis. Rather, in large
part, the Davis Court arrived at conclusions similar to the findings of the

7. See 833 N.E.2d 549 (Mass. 2005); Commonwealth v. Rodriguez, 833 N.E.2d 134,
135 (Mass. 2005). Decided on the same day as Gonsalves, Rodriguez held that any
statements arising from police questioning are per se testimonial if the scene is secured,
there are no obvious injuries to the victim, and the victim declines medical assistance.
8. Gonsalves, 833 N.E.2d at 552.
9. Id.
10. Justice Sosman authored a partial concurrence in Gonsalves, agreeing with the
majority that the case should be remanded for a more complete record addressing the
requirements of Crawford. Justice Sosman did not, however, concur with the majoritys
articulation of those requirements. Id. at 563, 574 (Sosman, J., concurring in part).
11. See Neil Swidey, The Dissenter, BOSTON GLOBE, Oct. 3, 2004, (Magazine) at 24,
available at http://www.boston.com/news/globe/magazine/articles/2004/10/03/
the_dissenter/?page=full ([I]n terms of influence . . . Sosman is a towering force. . . . In her
fluid written opinions and her penetrating questioning of lawyers, Sosman projects an easy
confidence. Since 1986, when then-U.S. Attorney William Weld tapped her to head his civil
division, people have predicted great things for Sosman. And she has always proved them
right.).
12. See Gonsalves, 833 N.E.2d at 562-63 (Sosman, J., concurring in part).
13. 126 S. Ct. 2266, 2273-78 (2006) (discussing how to classify statements to 911
operators as testimonial or nontestimonial for the purposes of the Confrontation
Clause).
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SJC in Gonsalves, resulting in still-muddled definitions of key terms and

widespread uncertainty among state and lower federal courts. Thus, the
holding of the Supreme Court in Davis has suffered from the very short-
comings that were identified and critiqued by Justice Sosman in her
Gonsalves concurrence.

II. ESCHEW[ING] MODERATION14: THE CONFRONTATION CLAUSE IN

GONSALVES
Gonsalves is problematic due to its wide-ranging effect, not its
ostensible intent. Indeed, in Gonsalves, the SJC fashioned a definition of
testimonial that was seemingly more manageable than any set forth in
Crawford, simply by virtue of the fact that the SJCs holding created a
bright-line rule15 for deciding whether statements are testimonial for the
purposes of Confrontation Clause analysis. Lower courts have indeed
demanded a bright-line rule from the Supreme Court as the Confrontation
Clause has begun to encompass an increasingly significant role within the
lower courts jurisprudence. However, the SJCs bright-line rule, clearly
aimed at streamlining the somewhat muddled definition of testimonial
found in Crawford, effectively extends the definition of testimonial to
capture all out-of-court statements arising out of police interrogations.16
This straightforward rule erroneously oversimplifies a courts analysis of a
statements testimonial nature, divorcing the test from the text and purpose
of the Confrontation Clause. Philosophically, this is a disruptive outcome,
as it erodes a lower courts ability, and indeed duty, to parse evidentiary
statements and arrive at its own determinations as to such statements
testimonial natures and their admissibility.

A. Thorny Rule-Making in Gonsalves

In the SJCs attempt to create clearer categories for testimonial and
non-testimonial statements, the court broadly classified a host of statements
as testimonial that are, essentially, ambiguously testimonial at best. For
example, all statements that are products of police interrogations, excepting
statements related to the securing of a currently volatile scene or the
determination of a need for medical services, are per se testimonial

14. Justice Sosman stated that the SJCs approach in Gonsalves was not the middle
course, but an overly expansive reading of Crawford, eschew[ing] moderation.
Gonsalves, 833 N.E.2d at 574-75 (Sosman, J., concurring in part).
15. Morgan M. Long, Comment, Commonwealth v. Gonsalves: Erroneously Expanding
the Concept of Police Interrogation Set Forth in Crawford v. Washington to Include
Investigatory Police Interrogations, 33 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 171,
196, 208 (2006).
16. See Gonsalves, 833 N.E.2d at 552.
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according to Gonsalves.17 Furthermore, a statement not immediately

classified as per se testimonial may be testimonial in fact if a reasonable
person in the declarants position would anticipate his statements being
used against the accused in investigating and prosecuting a crime.18 Such
an extension of the term testimonial complicates the manner by which
police conduct interrogations, and furthermore, the method by which courts
analyze what constitutes a police interrogation. Far from establishing a
bright-line rule, Gonsalves muddles the already fuzzy distinctions set forth
by Crawford.

1. The Holding in Gonsalves

The court in Gonsalves19 utilized the cornerstone statement of
Crawfordwhich provides modest guidance regarding the term
testimonialas the foundation upon which it expanded Crawfords
scope: Whatever else the term [testimonial] covers, it applies at a
minimum to prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to [statements procured through] police
interrogations.20 The SJC then proceeded to reference the Supreme
Courts language21 while constructing its own definition of interrogation,
which it painted in very broad strokes indeed:22
In light of the Supreme Courts direction to regard
interrogation in its colloquial sense, rather than any technical

17. See id. at 552, 555-56.

18. Id. at 552.
19. The facts of Gonsalves are as follows. The twenty-year-old declarant had an
argument with her boyfriend, the defendant. The mother, who was elsewhere in the
residence during the argument, heard yelling and crying coming from the declarants room.
Id. After the defendant left, the mother went to the declarants room, and the declarant told
her mother that the defendant had the front of her shirt so tight she could not breathe and
also hit her. When police arrived at the residence, the declarant was still hysterical, but not
apparently injured. Id. Upon an officers questions, the declarant provided the police with
the defendants name, a description of him, and an account of what he allegedly did to her.
Id. at 552-53. In court, the declarant was not subject to cross-examination and at a later
proceeding, she became unavailable. Id. at 553. The SJC held that the statements made to
the officer were testimonial, because the court found that the officers interrogation was
driven by his development of a criminal prosecution. Id. at 561. The court found the
statements made to the mother to be non-testimonial, as no reasonable person in the
declarants position would anticipate such statements to be used against the defendant in an
investigation or legal proceeding. Id. at 561-62.
20. Crawford v. Washington, 541 U.S. 36, 68 (2004).
21. The Court stated that it was using the term interrogation in its colloquial, rather
than any technical legal, sense. Id. at 54 n.4.
22. See Long, supra note 15, at 196.
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legal sense, we hold that interrogation must be understood

expansively to mean all law enforcement questioning related to
the investigation or prosecution of a crime. . . . We conclude that
questioning by law enforcement agents, whether police,
prosecutors, or others acting directly on their behalf, other than
to secure a volatile scene or to establish the need for or provide
medical care, is interrogation in the colloquial sense. This
includes investigatory interrogation, such as preliminary fact
gathering and assessment whether a crime has taken place.23
The SJC excluded questioning by law enforcement officers to secure
a volatile scene or to establish the need for medical care, as those inquiries,
in the SJCs view, are not related to the investigation or prosecution of a
crime, and are to be considered a part of the governments peacekeeping
or community caretaking functions.24 Thus, the SJC found such
statements not to be per se testimonial, but to be evaluated on a case-by-
case basis in order to determine if they are testimonial in fact.25 Statements
that could be testimonial in fact, the SJC stated, include those out-of-court
statements made to people who are not law enforcement agents, and
statements offered spontaneously . . . regardless of who heard them.26
Applying the standards articulated in United States v. Cromer,27 the SJC
instructed that such out-of-court statements may be testimonial in fact if a
reasonable person in the declarants position would anticipate the
statements being used against the accused in investigating and prosecuting
a crime.28

2. The Impact of Gonsalves

Although the SJC envisioned that the judges of the Commonwealth
would act as engaged gatekeepers as a result of the Gonsalves
framework,29 the holding instead operates in a fashion that restricts lower
courts analyses of out-of-court statements by grossly expanding the
meaning of testimonial. Law enforcement interrogation, as defined by the

23. Gonsalves, 833 N.E.2d at 555-56.

24. Id. at 556.
25. Id. at 557.
26. Id.
27. 389 F.3d 662, 675 (6th Cir. 2004) (The proper inquiry, then, is whether the
declarant intends to bear testimony against the accused. That intent, in turn, may be
determined by querying whether a reasonable person in the declarants position would
anticipate his statement being used against the accused in investigating and prosecuting the
crime.) (emphasis added).
28. Gonsalves, 833 N.E.2d at 558.
29. Id.
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SJC, encompasses virtually any type of communication a declarant would

have with a police officer, thus immediately filtering such statements into
the per se testimonial bucket created by Gonsalves.30 Furthermore, the
SJCs construction of testimonial-in-fact statements31 problematically relies
on a reasonable person standard, which pivots the nature of a statement
upon the fulcrum of the persons subjective belief that his statement could
be used in a criminal proceeding. As Justice Sosman articulates in her
concurrence, any reasonable person might believe a spontaneous utterance
made to a police officer could be used at trial.32 The problematic nature of
the SJCs opinion in Gonsalves, both with regards to the extension of
Crawford and the creation of new standards for the terms testimonial and
interrogation, forms the basis of Justice Sosmans concurrence.

III. THE MIDDLE COURSE33: JUSTICE SOSMANS CONCURRENCE IN

GONSALVES
Justice Sosmans concurrence in Gonsalves properly reined in the
definitions of testimonial and interrogation as constructed by the SJC,
providing for alternative readings of the foregoing terms that would allow
for their application to be less expansive than that outlined by the
majority.34 Her analysis in Gonsalves is emblematic of her trademark style
of jurisprudence: the ability to correctly identify and articulate alternatives
to restrictive bright-line rules, while providing pragmatic and reasonable
approaches to any given legal issue.35
Justice Sosman labeled the exercise of determining what constitutes
testimonial or interrogation as fraught with uncertainty, highlighting
the fact that courts across the nation have struggled with the terms in the
aftermath of Crawford.36 Nevertheless, [f]ew courts, Justice Sosman
stated, have given Crawfords undefined terms the extreme interpretation
adopted today. . . . [Gonsalves] erroneously signals that . . . police
questions automatically amounted to interrogation and the statements
made in response were therefore testimonial.37 Indeed, she was joined by

30. Id.
31. Id. at 558-59.
32. Id. at 569 (Sosman, J., concurring in part).
33. Justice Sosman stated in her concurrence to Gonsalves: Pending further
clarification from the Supreme Court, we must attempt to steer the precise middle course . . .
. Todays opinion does not strike me as that middle course[.] Id. at 574.
34. See Gonsalves, 833 N.E.2d at 562-75.
35. See Abel, supra note 1, at B1 (explaining how Justice Sosman was able to resolve
legal issues in a clear and understandable manner).
36. Gonsalves, 833 N.E.2d at 562.
37. Id.
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others who found Gonsalves over-extension of the Crawford holding

problematic for the very same reasons:
Specifically, Gonsalves causes concern over the unnecessary
exclusion of statements made during the course of an
investigatory police questioning procedure. In particular,
statements that reference a facet of one of the two exceptions to
the testimonial per se rule, but were made in response to police
questioning posed for purposes other than securing a volatile
scene or ensuring the provision of medical assistance would be
per se excluded, even though highly relevant to the case.38

A. Interrogation Redefined
Justice Sosman strongly contests the over-encompassing nature of the
SJCs definition of police interrogation, particularly the inclusion of
immediate, on-scene questioning as a form of police interrogation. Justice
Sosman argues that preliminary questions stemming from an attempt to
discover what is occurring cannot correctly be termed as police
interrogations:
Such preliminary questions on arrival at the scene (What is
happening? What did he do? Where is he now?[39]) are not
intended to produce testimony but to assess the situation and
inform the officers decision as to what immediate steps they
must take. I see no unique potential for prosecutorial abuse, in
such preliminary inquiries.40
Justice Sosman distinguishes such preliminary questioning from that
which constitutes police interrogation by alluding to the SJCs own,
referenced dictionary definition of interrogation as questioning with
formality, command, and thoroughness for full information and
circumstantial detail.41 The type of structure and detail traditionally

38. Long, supra note 15, at 174 (emphasis added).

39. In Commonwealth v. Foley, decided on the same day as Commonwealth v.
Gonsalves, the SJC held that the question, Where is he?, falls within the securing a
volatile scene exception to the per se testimonial rule. The SJC held that such a question is
within an officers community caretaking function, and no reasonable person would expect
his or her response to the question to be used in the investigation or prosecution of the
crime. Although excepted from the per se testimonial rule for reasons differing from those
that Justice Sosman offers regarding this type of questioning in the Gonsalves concurrence,
the SJC did state that responses to such questions could not be labeled per se testimonial.
833 N.E.2d 130, 133 (Mass. 2005).
40. Gonsalves, 833 N.E.2d at 564 (citation omitted).
41. See id. at 555 (majority opinion) (quoting WEBSTERS THIRD NEW INTL DICTIONARY
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consistent with forms of police interrogation, and amply supported by case

law cited by Justice Sosman,42 should not implicate preliminary
assessment-related questions amounting to merely initial inquiries.43

1. The Arbitrary Nature of Interrogation, as Defined by the

SJC
Justice Sosman labels the exceptions carved out from the definition of
interrogationthose involving addressing a volatile scene or medical
needs44as inadequate, and, moreover, confusion-inducing. The overlap of
a police officers community caretaking function with criminal
investigation is unavoidable, in that inquiring, for example, about how
many blows a victim suffered, while investigatory, may also be related to
determining the victims need for medical attention.45
The crux of Justice Sosmans objections to the term interrogation,
as constructed by the SJC, is that the courts categorizing of a line of
questioning as interrogation is dependent on the answers the officers
receive to their inquiries:
[I]f the police respond to a call that a woman has been attacked
in her home by a knife-wielding intruder, they will presumably
ask the victim where the armed perpetrator isif she tells the
police that the armed perpetrator is still hiding somewhere in the
house, she has informed the police of a potentially volatile
scene (thus bringing the exchange within some caretaking
function), but if she tells the police that the perpetrator fled on
foot in a particular direction, she has given them information
pertinent only to their investigative function. . . . Interrogation
surely refers to the nature of the questioning conducted by the
police, and is not dependent on the substantive contents of the
witnesss answers to police questions.46
Justice Sosman argues that informal, preliminary questioning, by its
very nature, need not encompass a large majority of an officers interaction

1182 (1993)).
42. Id. at 564-65 (Sosman, J., concurring); see, e.g., Mungo v. Duncan, 393 F.3d 327,
335 (2d Cir. 2004), cert. denied sub nom. Mungo v. Greene, 544 U.S. 1002 (2005); State v.
Hembertt, 696 N.W.2d 473, 482-83 (Neb. 2005); People v. Corella, 18 Cal. Rptr. 3d 770,
776 (Cal. Ct. App. 2004); United States v. Webb, No. DV-339-04, 2004 WL 2726100 at *2-
4 (D.C. Super. Ct. Nov. 9, 2004);
43. Gonsalves, 833 N.E.2d at 564, 568.
44. Id. at 556 (majority opinion).
45. Id. at 565-66 (Sosman, J., concurring).
46. Id. at 566.
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496 NEW ENGLAND LAW REVIEW [Vol. 42:485

with a witness.47 Indeed, she points out that it may take very few questions
before informal inquiry becomes true police interrogation. Once the
conversation turns in this direction, she contends that such questions fall
within the purview of interrogation. Fundamentally, however, Justice
Sosman states that a line must be drawn somewhere, and . . . other courts
distinguishing between preliminary on-scene questioning and
interrogation are focusing on the appropriate distinction.48

B. Testimonial Within the Boundaries of Crawford

Justice Sosman maintains that the definition of testimonial should
be squarely within the limits of the formulation generated by the Supreme
Court in Crawford, and that lower courts must not stray from this guidance,
however unhelpful as it may be.49 In Crawford, the Supreme Court
identified the following types of statements as testimonial:
[1] ex parte in-court testimony or its functional equivalent
that is, materials such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially[;] [2] extrajudicial
statements . . . contained in formalized testimonial materials[;]
[and] [3] statements that were made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial[.]50
Justice Sosman argues that the Cromer test, upon which the majority
relies to fashion its definition of testimonial, essentially creates a
situation wherein anything said to law enforcement or government
officials that pertains to any form of criminal activity is
testimonialafter all, a reasonable person would anticipate that giving
any government official information concerning criminal conduct will
engender at least an investigation.51

1. The SJC at Odds with Crawford

The primary objection Justice Sosman levies against the majoritys
opinion is that it overextends the Supreme Courts formulation of
testimony into territory that is wholly unsupported by Crawford itself,

47. Id. at 567.

48. Id. at 568.
49. See Gonsalves, 833 N.E.2d at 568-69.
50. Crawford v. Washington, 541 U.S. 36, 51-52 (2004) (internal citations omitted)
(alteration in original).
51. Gonsalves, 833 N.E.2d at 569.
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 497

and also by lower court decisions.52 While the majority relies on Cromer
for its articulation of testimonial material, Justice Sosman notes that such a
definition is at odds with Crawford, which does not pinpoint any statement
made to a law enforcement officer as testimonial, but instead focuses on
circumstances which may lead a witness to believe his or her statements
could be used later at trial.53 Cromers articulation of testimonial
statements, Justice Sosman states, is erroneous because it confuses the
distinction between [a]ny . . . accusation or statement concerning criminal
activity for any accusation or statement made with an eye toward trial.54
Justice Sosman argues that the Cromer approach casts a variety of informal
statements as testimonial that are in fact not made for the purposes of
trial.55
Justice Sosmans analytical dissection of the majority in Gonsalves
not only specifically addressed the holes in methodology and reasoning in
the Gonsalves opinion, but also proved to be prescient. Just two years
following the Supreme Courts decision in Crawford, the Court re-
evaluated and re-defined terminology such as testimonial and
interrogation through its opinion in Davis. Davis reviews many of the
same issues and concerns surfacing in Justice Sosmans Gonsalves
concurrence, though it arrives at differing conclusions.

IV. THE SOSMAN CONCURRENCE IN GONSALVES: A VISIONARY

PRECURSOR TO (AND REBUTTAL OF) DAVIS V. WASHINGTON
After the Supreme Courts decision in Crawford in 2004, it became
clear, when viewing the landscape of disparate holdings arising from lower
courts attempting to interpret Crawford, that further guidance regarding the
terms interrogation and testimonial was necessary.56 Therefore, in
2006, the Supreme Court began the process of providing a more nuanced
and detailed explanation of, in particular, what exactly constitutes
testimonial statements in the context of police interrogations.57 In some
respects, the Davis Court addressed the very concerns elicited by Justice
Sosman, as well as a host of other lower court judges in the post-Crawford
era. The troublesome aspects of Crawford, and the extensions of the

52. See id. at 569-70.

53. Id.
54. Id. at 569.
55. See id. at 569-70.
56. See Andrew C. Fine, Refining Crawford: The Confrontation Clause After Davis v.
Washington and Hammon v. Indiana, 105 MICH. L. REV. FIRST IMPRESSIONS 11, 11-12
(2006), http://www.michiganlawreview.org/firstimpressions/vol105/fine.pdf.
57. See Roger W. Kirst, Confrontation Rules After Davis v. Washington, 15 J.L. &
POLY 635, 635-36 (2007).
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498 NEW ENGLAND LAW REVIEW [Vol. 42:485

Crawford ruling that certain courts adopted, including the SJC, were
effectively restrained by the Davis holding. However, in other ways, the
Supreme Court produced an opinion that bears philosophical similarity to
the SJCs findings in Gonsalves, while continuing along the path the Court
began in Crawford, much to the consternation of lower courts awaiting a
more lucid and explicit explanation of the definitions proposed in
Crawford. In short, perhaps due to the desire to achieve a broad majority
coalition, the Court adopted a standard for assessing what sort of police
interrogations produce testimonial statements that is so amorphous that it
is likely to lead to the same kind of unpredictability for which the Crawford
Court condemned Roberts.58

A. Justice Sosmans Gonsalves Concurrence in the Context of Davis

Davis,59 which was a consolidated opinion including the Supreme
Courts decision in Hammon v. Indiana, was concerned with the central
question of whether a statement to the police in a 911 call or at a crime
scene is testimonial.60 The Supreme Court unanimously ruled in Davis that
statements made during a 911 call in which the caller seeks emergency
assistance are not testimonial statements, but in Hammon, the Court held in
an eight-to-one decision, from which Justice Thomas dissented, that
statements to police officers investigating a crime are testimonial if there is
no ongoing emergency.61

1. Davis as Akin to Justice Sosmans Analysis in Gonsalves

In its endeavors to provide clarity and guidance on the standards
established in Crawford, Davis constructs limits around the term
testimonial, perhaps in an effort to avoid the over-expansive readings of
testimonial found, for example, in the SJCs decision in Gonsalves.
Primarily, the Davis Court sought to create a temporal boundary between

58. Fine, supra note 56, at 11-12.

59. The facts of the two consolidated cases are as follows. Davis involved a 911 call
made by a woman seeking emergency assistance, stating that she had been attacked by her
partner and identifying the assailant by name as Adrian Martell Davis. Davis, 126 S. Ct. at
2270-71. When officers arrived at the residence, they found the woman with recent injuries,
anxiously attempting to leave her home for safety purposes. Davis had already left the scene
when the officers arrived. Id. In Hammon, police arrived at the scene in response to a report
of domestic violence and found the victim somewhat alarmed, with injuries. Id. at 2272. The
alleged perpetrator, Hershel Hammon, was still at the residence. Initially, in response to
police questioning, the victim, Amy Hammon, said nothing. Id. When one of the officers
took Amy Hammon to another room, leaving the assailant in the other room with another
officer, Hammon then accused her husband of assaulting her. Id.
60. Id. at 2270.
61. See id. at 2276-78.
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 499

testimonial and nontestimonial statements to law enforcement officers.62

This, indeed, is the main concern that Justice Sosman voices in her
concurrence in Gonsalves; Justice Sosman forcefully insists that a line
must be drawn somewhere, and that all statements made to a law
enforcement officer cannot wholesale be categorized as testimonial, in
the manner that the Gonsalves holding suggests.63
In Davis, the Supreme Court also diminished the focus on a
declarants subjective belief when making a statement: The Courts . . .
holding [in Davis] ignores the declarants motive or expectation, and
focuses instead on an objective assessment of the primary purpose of the
police questioning . . . .64 Likewise, in the Gonsalves concurrence, Justice
Sosman states that an interrogation analysis must focus on the nature of
the questioning conducted by the police.65 Davis appears to shift away
from the paradigm etched in Crawford (and heightened by the majority in
Gonsalves) that one of the inquiries a court should make regarding
interrogations should be an investigation into the reasonable expectation of
the declarant:66 The Davis opinion shifted the focus from the declarants
state of mind to the officers purpose in questioning the declarant.67 In an
apparent distancing from reasoning similar to that found in the Sixth
Circuits Cromer decision,68 the Davis Court instead concentrated on the
main purpose of the interrogator as a threshold determinant of what is
interrogation, and therefore what is testimonial.69 Though she would
have differed with the Courts reasoning on such determinants of an
interrogation, Justice Sosman also endorsed a healthy distance from the
Cromer opinion in the Gonsalves concurrence.70

62. Tom Lininger, Reconceptualizing Confrontation After Davis, 85 TEX. L. REV. 271,
279 (2006).
63. Commonwealth v. Gonsalves, 833 N.E.2d 549, 568 (Mass. 2005) (Sosman, J.,
concurring in part).
64. Fine, supra note 56, at 12.
65. Gonsalves, 833 N.E.2d at 566.
66. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). Of note, however, is that other
language in Davis, conversely and confusingly, demands that courts examine the
declarants statements, not the interrogators questions. See Davis, 126 S. Ct. at 2274 n.1.
67. Lininger, supra note 62, at 280.
68. United States v. Cromer, 389 F.3d 662, 675 (2004).
69. See Davis, 126 S. Ct. at 2276 (The question . . . is whether, objectively considered,
the interrogation that took place in the course of the 911 call produced testimonial
statements.).
70. See Gonsalves, 833 N.E.2d at 571-72.
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500 NEW ENGLAND LAW REVIEW [Vol. 42:485

2. Davis as Divergent from the Sosman Concurrence in

Gonsalves
Where Davis diverges from Justice Sosmans analysis in Gonsalves is
what embodies the critical disparity between her and the Courts lines of
reasoning. Davis, like Justice Sosmans concurrence, examined the concept
of initial inquiries made by law enforcement officers upon arrival at the
scene of a crime. In Gonsalves, Justice Sosman contends that an officers
preliminary questions attempting to discover what has recently transpired
are not intended to produce testimonial statements, but are pointed at
assessing what has occurred. The Davis Court also seems to suggest that
certain statements that are the product of unstructured interactions in
emergency situations fall outside the category of testimonial statements.71
Furthermore, the types of questions the Davis Court appears concerned
with are those akin to the type Justice Sosman identifies, for example:
What is happening?
However, here, the Davis opinion is more analytically parallel to the
majority opinion in Gonsalves. The Davis Court found that while certain
statements to initial inquiries by officers could often be characterized as
non-testimonial, they can only be non-testimonial if they are statements
related to an ongoing emergency and that enabl[e] officers immediately
to end a threatening situation.72 This mirrors the majoritys disposition in
Gonsalves that statements arising from an officers securing of a volatile
scene or assessing the need for medical services can be non-testimonial.73
Because the analyses of both courts are hinged on the predicate of an
emergency occurring as the questioning is taking place, the various
diagnostic problems identified by Justice Sosman in the Gonsalves
concurrence also exist in Davis. For example, how is one to determine
when an emergency is over, and how can one distinguish between an
officers function of diffusing an emergency versus investigating a crime?
Davis, therefore, poses a troublesome paradigm, one which has
already inspired consternation and confusion among state and lower federal
courts.74 The decision has also raised the ire of Supreme Court observers

71. See Davis, 126 S. Ct. at 2273-74.

72. Id. at 2273, 2279.
73. See Gonsalves, 833 N.E.2d at 552 (majority opinion).
74. See, e.g., State v. Mechling, 633 S.E.2d 311, 321-25 (W. Va. 2006) (focusing on
circumstances under which statements were made to determine if they were testimonial);
State v. Krasky, 721 N.W.2d 916, 922-24 (Minn. Ct. App. 2006), revd by State v. Krasky,
736 N.W.2d 636 (Minn. 2007) (examining prosecutorial role and intent of nurse-
practioner hired by police to interview child victim); State v. Reardon, 860 N.E.2d 141, 142-
44 (Ohio Ct. App. 2006) (holding that statements made by robbery victim after perpetrators
had fled were non-testimonial despite the fact that scene of crime was secured because
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 501

who expected a ruling infused with more clarity:

In Davis, the decision is narrow and the consensus was largely
achieved, but the end result is not particularly clear. Stating
seven times in the opinion that it is an objective test does not
make it so. And declaring that testimonial statements are what
they are helps the lower courts not one whit when they actually
have to determine where the lines are drawn.75
Justice Thomas joined the Davis nay-sayers by arguing in his separate
opinion to Davis that an emergency could aptly encompass a situation in
which police are still attempting to determine if the defendant is a
continuing danger: Justice Thomas endorsed [a] broader view of what
constitutes an emergency when he argued . . . that Justice Scalia had
ignored the possibility that the violence could resume if the police departed
without taking any steps to prevent a recurrence.76
The unnecessary narrowness of the Davis opinion, combined with the
muddled standards set forth regarding terms demanding lucid and effective
direction, creates a situation wherein state and lower federal courts will
arrive at vastly disparate conclusions regarding interrogations and
testimonial statements.77 As a result, lower courts, in developing
frameworks to utilize for Confrontation Clause analysis, may glean useful
guidance from Justice Sosmans concurrence in Gonsalves and the
interpretations she recommends regarding interrogations and
testimonial material.

V. PRAGMATISM IN PRACTICE: JUSTICE SOSMANS CONCURRENCE IN

GONSALVES AS USEFUL GUIDANCE TO LOWER COURTS
The murky guidelines proposed in Davis and the unpredictability that
the case induces regarding the terms testimonial and interrogation
should forewarn lower courts against looking to Davis for guidance on the
Confrontation Clause. Due to the potential for multiple, divergent readings

perpetrators had not yet been arrested); Vinson v. State, 221 S.W.3d 256, 264-67 (Tex. App.
2006) (determining that domestic disturbance where defendant was still present while victim
was being questioned objectively represented an ongoing emergency and holding that
statements were non-testimonial); Andrew Dylan, Note, Working Through the
Confrontation Clause After Davis v. Washington, 76 FORDHAM L. REV. 1905, 1918-29
(2007) (identifying several divergent state cases);
75. Lisa Kern Griffin, Circling Around the Confrontation Clause: Redefined Reach but
not a Robust Right, 105 MICH. L. REV. FIRST IMPRESSIONS 16, 18 (2006),
http://www.michiganlawreview.org/firstimpressions/vol105/griffin.pdf.
76. Kirst, supra note 57, at 643.
77. See generally Dylan, supra note 74, at 1918-31 (describing courts various possible
interpretations of what can be deemed as testimonial or an interrogation).
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502 NEW ENGLAND LAW REVIEW [Vol. 42:485

of Davis,78 as a result of Davis inherent ambiguity, this section suggests

that state and lower federal courts need not feel restrained by any one
reading of Davis and should adopt the methodology found in Justice
Sosmans Gonsalves concurrence for Confrontation Clause cases.
By means of her concurrence in Gonsalves, Justice Sosman is in
sound company. Her analysis in Gonsalves is parallel to Justice Thomas79
separate opinion in Davis,80 and echoes Justices Rehnquist and OConnors
reasoning81 in their concurrence to Crawford.82 That Supreme Court
Justices of such varying persuasions and perspectives83 support approaches
similar to those outlined by Justice Sosman attests to the applicability of
her logic by even vastly disparate courts exercising different philosophies
on jurisprudence. Widespread adoption of Justice Sosmans approach in
Gonsalves would result in increased uniformity amongst decisions in
Confrontation Clause casessomething that is currently and notably
absent in the post-Crawford and Davis era.

A. Solemnity as a Marker of Interrogation and Testimony

In the Gonsalves concurrence, Justice Sosman creates fluid and
practical guidelines for the term testimony. Her analysis maintains that
when considering the nature of a declarants statements, a court must first
determine whether a formal interrogation has actually taken place.

78. See id.

79. Justice Sosman, in her concurrence in Gonsalves, cited Justice Thomass concurring
opinion in White v. Illinois, in particular his discussion that the Confrontation Clause was
aimed onlyat the discrete category of formalized testimonial materials . . . and that it
should not be construed to extend beyond the historical evil to which it was directed.
Commonwealth v. Gonsalves, 833 N.E.2d 531, 570 (Sosman, J., concurring in part) (citing
White v. Illinois, 502 U.S. 346, 365 (2006) (Thomas, J., concurring in part and dissenting in
part)). Thus, even prior to the issuing of the opinion in Davis, Justice Sosman and Justice
Thomas held similar views on testimonial statements.
80. Davis v. Washington, 126 S. Ct. 2266, 2280-85 (Thomas, J., concurring in part and
dissenting in part).
81. Demonstrating her alignment with Justices Rehnquist and OConnor, Justice
Sosman cites Rehnquists concurrence in Crawford: Rehnquist recognized the havoc that
the present uncertainty could wreak on the criminal justice system: The thousands of
[F]ederal prosecutors and the tens of thousands of [S]tate prosecutors need answers as to
what beyond the specific kinds of testimony the Court lists . . . is covered by the new
rule. Gonsalves, 833 N.E.2d at 571 n.6 (citing Crawford, 541 U.S. at 75 (Rehnquist, C.J.
with OConnor, J., concurring) (alteration in original)).
82. Crawford, 541 U.S. at 69-76.
83. See generally EARL M. MALTZ, REHNQUIST JUSTICE: UNDERSTANDING THE COURT
DYNAMIC (2003) (describing the differing approaches, contributions, and jurisprudence of
the nine Justices of the Rehnquist Court, including Justices Rehnquist, OConnor, and
Thomas).
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 503

Formality, she argues, has historically been the marker of an

interrogation for Confrontation Clause purposes, and only an
interrogation conducted with this formality, command, and thoroughness
for full information and circumstantial detail can generate testimonial
statements.84 Formality as a necessary facet of testimony is a position
supported by Justice Thomas in his concurrence to Davis. In defining
testimony, Justice Thomas quotes an 1828 edition of Websters American
Dictionary of the English Language: Testimony is a solemn declaration or
affirmation made for the purpose of establishing or proving some fact.85
Justices Rehnquist and OConnor, in the concurrence to Crawford endorse
the same definition of testimony as a solemn declaration or affirmation
that proves a fact.86
Davis and Gonsalves erroneous expansion of interrogation to
include most police questioning colors too many statements as testimonial
that would have been non-testimonial under Crawford. This is an extreme
approach that leads to troublesome consequences and is unsupported by the
history of Confrontation Clause jurisprudence.87 Moreover, the cases
holdings wholly overlook the moderate routes available and espoused by
many other jurists, such as Justice Thomas: Besides being difficult for
courts to apply, [the Davis test] characterizes as testimonial, and therefore
inadmissible, evidence that bears little resemblance to what we have
recognized as the evidence targeted by the Confrontation Clause.88 As
Justices Rehnquist and OConnor argue in the Crawford concurrence, the
Confrontation Clauses mission is to advance the accuracy of the
truth-determining process in criminal trials. The creation of an
immutable category of excluded evidence does not promote a trials
truth-finding function, which is the essence of the Confrontation Clauses
purpose.89

1. Pragmatic Approaches to Defining Interrogation and

Testimony
To uphold the principles behind the Confrontation Clause, courts
should progress towards analyses of whether police questioning has, as
Justice Sosman stated in Gonsalves, taken on some aura of formality,

84. Gonsalves, 833 N.E.2d at 564 (quoting WEBSTERS THIRD NEW INTL DICTIONARY
1182 (1993)).
85. Davis, 126 S. Ct. at 2282 (Thomas, J., concurring in part and dissenting in part).
86. Crawford, 541 U.S. at 71 (Rehnquist, C.J. with OConnor, J., concurring).
87. Davis, 126 S. Ct. at 2280-81.
88. Id.
89. Crawford, 541 U.S. at 74, 75 (quoting Tennessee v. Street, 471 U.S. 409, 415
(1985)).
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504 NEW ENGLAND LAW REVIEW [Vol. 42:485

solemnity, or (at a minimum) thoroughness,90 before deeming the

questioning an interrogation and the Confrontation Clause implicated.
If lower courts view testimonial statements as arising largely from
formal interrogations, a greater balance will be achieved than the current
situation unfolding under Davis. Achieving equilibrium is imperative, and
analyzing whether solemnity is present in an interaction is necessary such
that a mere conversation between a witness or suspect and a police
officer91 is not improperly characterized as testimonial. The approach
advocated by Davis, and by extension, Gonsalves, is needlessly
overinclusive92 and works against the notion that courts must engage with
the evidence and arrive at factual and legal conclusions of their own
accord, particularly with regards to Confrontation Clause inquiries. The
approach recommended by Justice Sosman and found within the reasoning
of Justices Rehnquist, OConnor and Thomas would result in a higher
degree of standardization and more uniformity amongst state and lower
federal court rulings on the Confrontation Clause.

B. The Purpose of Police Questioning: An Improper Focus

Davis and Gonsalves are misguided in their insistence to assign a
beginning and ending to a timeframe in which testimonial statements are
potentially occurring. Davis, with its ongoing emergency exception,93
and Gonsalves, with its exemptions for securing a volatile scene or
assessing the need for medical services,94 create a linkage between
emergency situations and testimonial statements that leads to troubling
consequences. Therefore, it will be difficult for courts to ignore an
officers claim that he believed the emergency to be ongoing when he
questioned the declarant.95 Indeed, this is one of the primary analytical
defects of Gonsalves and Davisthe heightened focus upon an existing
emergency and its presence or absence directing a courts Confrontation
Clause analysis.
As Justice Sosman states in Gonsalves, determining whether a
particular question can be justified by reference to community caretaking
even if it simultaneously overlaps with criminal investigation is no small
task, and the distinction is irrelevant to the purposes underlying the

90. Commonwealth v. Gonsalves, 833 N.E.2d 549, 564 (2005) (Sosman, J., concurring
in part).
91. See Davis, 126 S. Ct. at 2282-83.
92. Id. at 2283.
93. Id. at 2276 (majority opinion).
94. Gonsalves, 833 N.E.2d at 552 (majority opinion).
95. Fine, supra note 56, at 12.
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 505

confrontation clause.96 Justice Sosman rightfully predicts in her

concurrence to Gonsalves that there will be much hairsplitting, as
attorneys wrangle and judges attempt to separate the caretaking function
questions from the investigative questions.97 After all, can a police
officers purpose, in arriving at the scene of a crime and engaging in
questioning, truly be arbitrarily and artificially assigned to either a
caretaking or investigatory function? Can this be precisely determined by a
court of law? Gonsalves unfounded exemption for situations involving the
securing of a volatile scene or determining medical needthe equivalent of
Davis exception for ongoing emergenciesreduces many Confrontation
Clause analyses to fruitless inquiries regarding the purpose of an officers
questioning. As Justice Thomas states in his separate opinion in Davis, the
purposes of an interrogation, viewed from the perspective of the police, are
both to respond to the emergency situation and to gather evidence.98

1. Disregarding the Motives Behind Police Questioning

When examining the factual evidence regarding a police officers
questioning, courts should adopt the logic of Justice Sosman in the
Gonsalves concurrence. A courts scrutiny of any given situation should be
divorced from the notion of the purpose of an officers questions. Instead
of embarking on an analysis of whether police were responding to an
ongoing emergency, a volatile scene, or a need for medical servicesall
exercises in futility to be undoubtedly mired with inconsistent results
courts should first determine whether an officers line of questioning
approached an interrogation. Were the questions detailed, orderly, and
involving a complete account of the incident, asking specific and probing
questions to address any gaps or inconsistencies in the witnesses
answers?99 Courts must closely scrutinize the point at which the questions
being asked evolve into a structured and detail-oriented interaction: at that
crucial point, a declarants responses become testimonial.100 This method
empowers and provides courts with the ability to perform the duty to which
they are assignedthat of precise, practical examinations to determine the
nature and admissibility of testimony, instead of relegating their analyses to
overbroad categorical determinations.

96. Gonsalves, 833 N.E.2d at 568 (Sosman, J., concurring in part) (emphasis added).
97. Id. at 566.
98. Davis, 126 S. Ct. at 2283 (Thomas, J., concurring in judgment, dissenting in part);
Gonsalves, 833 N.E.2d at 565 ([Police] are performing both [caretaking and investigatory]
functions at the same time, and customarily using the same questions.).
99. Gonsalves, 833 N.E.2d at 567-68.
100. Id. at 568.
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506 NEW ENGLAND LAW REVIEW [Vol. 42:485

CONCLUSION
There is a spectrum of opinion as to what Crawford means . . . . I am
not prepared to endorse the extreme end . . . . 101

In Gonsalves, Justice Sosmans measured approach to the ever-

developing landscape of testimonial evidence is a marker of her
methodology with regards to complicated legal questions. Her
jurisprudence, in her own words, did not eschew[] moderation.102 Justice
Sosmans reputation as a jurist103 is particularly highlighted in the
Gonsalves concurrence, through her forthright and vehement critique of
any forms of the extreme edge of current jurisprudence,104 as she branded
the majoritys opinion in Gonsalves.
Justice Sosmans concerns in Gonsalves were, in some ways,
validated by the Supreme Courts discussion in Davis. However, Davis
ultimately established doctrines unaligned with Justice Sosmans
observations in the Gonsalves concurrence, namely the linking of non-
testimonial statements to so-called ongoing, emergency situations. In doing
so, Davis created a slew of complex, unanswered questions and already-
disparate lower court decisions.105 This was perhaps an avoidable outcome,
had a more moderate approach to Confrontation Clause analysis been
adopted, such as that advocated by Justice Sosman and supported by
Justices Rehnquist, OConnor and Thomas in separate Supreme Court
cases.
Justice Sosmans analysis of statements to be considered
testimonial, in the context of police interrogations, avoids the tempting
tendency of creating a bright-line rule concerning accusatory statements.
Instead of developing a rule yielding little concrete guidance, Justice
Sosman offers a methodology that would leave the courts, not the police
officers or the declarants, in control of the outcomes regarding testimonial
and non-testimonial statements. The Gonsalves concurrence is simply one
example of her trademark moderate jurists approach to the most
complicated of legal issues.
Justice Sosmans plethora of sharp and lucid decisions have left an
indelible mark on the face of Massachusetts jurisprudence, and her
towering influence106 within the margins of her insightful opinions is

101. Id. at 572.

102. Id. at 575.
103. See Swidey, supra note 11, at 24 (She comes across as fearless on the bench.).
104. Gonsalves, 833 N.E.2d at 575.
105. See Dylan, supra note 74, at 1918-29.
106. See Swidey, supra note 11, at 24.
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2008] PRAGMATISM AND THE CONFRONTATION CLAUSE 507

irreplaceable. However, it is not just her written words, but mostly her
conspicuous absence on the bench, that leaves a void in all the chambers of
Massachusetts highest court, a point SJC Justice Robert Cordy noted at her
passing: Her best thinking was never written, because it persuaded
colleagues. She kept all of us honest.107

107. Abel, supra note 1, at B1.