In People v. Cage, S127344, the California Supreme Court has issued its first major decision applying Crawford v. Washington, 541 U.S. 36 (2004) as clarified in Davis v. Washington and Hammon v. Indiana.

Cage was charged with assault by means likely to produce great bodily injury. Her son, John, was taken to the hospital with a 5-6 inch gash on his face and neck. There, he told the doctor and a police officer that his mother had inflicted the wound with a piece of broken glass. Applying the "purpose" language of Davis, the court held that the statement to the police officer was testimonial but the statement to the doctor was not. By the time the officer spoke to John, the confrontation was over and medical personnel were treating him for his injury. The officer's questioning of John was investigation, not emergency response, as in Hammon. On the other hand, the doctor's simple question, "What happened?" was for the purpose of determining treatment, not taking testimony.

Defendant made the creative argument that the California law requiring health professionals to report suspected child abuse transformed this medical inquiry into testimonial interrogation. The court rejected that argument.

The California court criticized and declined to follow the decision of the West Virginia Supreme Court of Appeals in State v. Mechling, 633 S.E.2d 311 (2006). That case held that a statement to a neighbor regarding what happened, made after the emergency was over, was testimonial. The California court reads Crawford and Davis as excluding from "testimonial" statements made without the solemnity and purpose associated with testimony. Nontestimonial statements are not limited to those made during an emergency.

As the police officer's rendition of John's statement was merely cumulative, the court held 6-1 that it was harmless error under the Chapman v. California, 386 U.S. 18 (1967) standard.