Sheila K Hyatt*
Sylvia Crawford and her husband, Michael Crawford, were both present and implicated in the stabbing of the victim. Sylvia was interrogated by police and she gave a tape recorded statement that contradicted the self-defense claim raised by her husband. When Michael Crawford was tried for the assault, Sylvia did not testify against him under the state law of spousal privileges, but the prosecutor offered the tape recording into evidence. As we all now know, the United States Supreme Court determined in Crawford v. Washington that the admission of the tape recording violated Michael Crawford’s Sixth Amendment right to confront the witnesses against him. The Court held that Sylvia’s “testimonial” statements, derived from a police interrogation eliciting evidence for a criminal prosecution, were inadmissible against the defendant when he had no opportunity to confront and cross examine her.
Change one fact: Suppose the tape recording was not made by the police in an interview room, but by an undercover officer wearing a wire in the waiting room of the station house. The undercover officer posed as just another citizen, engaged Sylvia in conversation about their respective predicaments, and interrogated Sylvia in a friendly but serious way about what had happened. Is the tape recording now admissible?
According to the Tenth Circuit (and other circuits as well), the answer is yes.
In United States v. Smalls, the defendant Smalls and two others, including Glenn Cook, were implicated in the prison murder of a suspected snitch. Another inmate became a confidential informant (CI), was fitted by FBI agents with a recording device and placed in a cell alone with Cook. The CI “amiably” conversed with Cook about the murder, and asked, among other questions, “Who was the ringleader?” and “What did the black dude (referring to defendant Smalls) do?” Cook’s answers incriminated himself as well as defendant Smalls (he stated the black dude “held down his feet”). The prosecution sought, in a pretrial motion, to have the tape recording admitted against Smalls in his trial for the murder. Cook was unavailable to testify and the defendant argued that admission of the tape violated his right to confront his accusers.
The Tenth Circuit ruled that Cook’s tape recorded statements were nontestimonial and not subject to the Confrontation Clause. It relied on language from Davis/Hammon, where the Supreme Court said, “[s]tatements made unwittingly to a Government informant” or “statements from one prisoner to another” are “clearly nontestimonial.” Other circuits had reached the same result, reasoning that declarants talking to undercover agents or confidential informants could not be “bearing testimony” or expecting that their statements would be available for use prosecutorially. In Smalls and the other cases, the decision turned on the declarant’s purpose in speaking: even if the government’s primary purpose was to elicit evidence for prosecution, the statements were not testimonial if the declarant was unaware that he was being questioned by law enforcement for information that could potentially be used in a trial. And the government is free to deceive the declarant about that.
If the focus is exclusively on the declarant’s purpose, which may be freely manipulated by the government, what of Crawford’s central premise? Crawford states:
[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.
Crawford also says:
Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse-a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate [just because a hearsay exception exists].
If the Confrontation Clause is meant, at least in part, to prevent the government from using ex parte, uncross-examined statements purposefully elicited against a defendant, then why should statements collected by the police in disguise be treated differently than statements collected by the police in uniform?
If the only salient consideration is whether the declarant believes the statement will be available for use at a later trial, then the police do not even need to go undercover or get secret recordings. All they have to do is lie.  Just sit Sylvia Crawford down in the police interrogation room and say, “By the way, don’t worry about what you say about Michael. You don’t have to testify against him, and we won’t be able to use this tape recording or anything you tell us at his trial.” Based on this deception, Sylvia would not expect her statement to be used prosecutorially, so it would be nontestimonial, and it would be admissible against Michael without cross examination. The problem here is not the (im)propriety of deceiving an accomplice into believing her statements would not be available for use at a trial. The problem is that the government’s lie to the declarant can destroy the defendant’s right to confront his accuser. And that result hardly seems consistent with Crawford’s concern about the potential for abuse when the government is involved in the production of evidence.
* Professor of Law, University of Denver Sturm College of Law.
 Crawford v. Washington, 541 U.S. 36 (2004).
 According to Crawford, testimonial statements are, inter alia, “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52.
 According to Davis v. Washington, 547 U.S. 813, 822 (2006),
the term “testimonial” is defined as follows: “[Statements] are testimonial when the circumstances objectively indicate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” The defendant’s right to confrontation under the Sixth Amendment prevents the admission of testimonial statements made by declarants who are unavailable for cross examination.
 605 F.3d 765 (10th Cir. 2010).
 The ability to admit both Cook’s and Sylvia Crawford’s statements under the hearsay rules depends on the application of the hearsay exception for statements against interest. See Fed. R. Evid. 804(b)(3); Wash. Evid. R. 804(b)(3).
 Cook was being tried separately for his own role in the murder and would exercise his Fifth Amendment privilege not to incriminate himself.
 The Court of Appeals left open whether every statement on the tape would be admissible as against Cook’s interest under Fed. R. Evid. 804(b)(3), but suggested that the statements which so qualified were not rendered inadmissible just because they also happen to inculpate a codefendant. Smalls, 605 F.3d at 782.
 Davis v. Washington, 547 U.S. 813, 825 (2006).
Id. at 825 (citing Bourjaily v. United States, 483 U.S. 171, 181-84 (1987) and Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion)).
 Accord United States v. Saget, 377 F.3d 223 (2d Cir. 2004), United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) (recognizing that a declarant's statement unwittingly made to a confidential informant wearing a wire is not testimonial); United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008); United States v. Udeozor, 515 F.3d 260, 270 (4th Cir. 2008); United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006); United States v. Hendricks, 395 F.3d 173, 182-84 (3d Cir. 2005).
 Crawford, 541 U.S. at 40.
 Id. at 50.
 Id. at 56, n.7.
 This is the position vociferously maintained by Justice Scalia. In the latest confrontation clause case, Michigan v. Bryant, No. 09-150, 2011 WL 676964, at *10 ( U.S. Feb. 28, 2011), the majority concluded that the “primary purpose” of a police interrogation could be determined by objectively reviewing the entire context of the encounter, which would include the purpose of the interrogators. But the issue in Bryant was the distinction between crime scene statements made to help police respond to an ongoing emergency and those made to help police solve the past crime for use in prosecution. Justice Scalia’s dissent excoriated the majority approach as inconsistent with Crawford, but did acknowledge that the majority’s approach might have one “virtue”: “If the dastardly police trick a declarant into making an incriminating statement against a sympathetic defendant, a court can focus on the police’s intent and declare the statement testimonial.” Id. at *22 (Scalia, J., dissenting), available at http://www.supremecourt.gov/opinions/10pdf/09-150.pdf.
 “Virtually all interrogations--or at least virtually all successful interrogations--involve some deception. As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator.” Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1168 (2001). While misstatements of law are perhaps considered more carefully, see 2 Wayne R. LaFave et al., Crim. Proc. § 6.2(c) (3d ed.) at nn.137-139, the cases disapproving of those deceptions all concerned the voluntariness of a defendant’s confession, not the admissibility of a witness’s statement.