What is the test for making a testimonial statement in a criminal case?

As we discussed in the companion case of People v. Lopez, supra, __ Cal.4th at page ___ [p. 13], the prosecution's use of testimonial out-of-court statements "ordinarily violates the defendant's right to confront the maker of the statements unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination." Although the high court has not agreed on a definition of "testimonial," testimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. The high

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court justices have not, however, agreed on what the statement's primary purpose must be.