Is a statement testimonial for purposes of the Confrontation Clause of the Sixth Amendment when the speaker talks with a trusted family member who is intentionally soliciting incriminating information and secretly recording the conversation at the behest of the police in order to create evidence for trial?

QUESTION PRESENTED The Confrontation Clause of the Sixth Amendment guarantees accused persons the right to cross-examine witnesses who make testimonial statements. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). To determine whether a statement is testimonial, the critical question is whether the primary purpose of the conversation was to create an out-of-court substitute for trial testimony. Ohio v. Clark, 576 U.S. 237, 245 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). To determine the “primary purpose,” courts consider both the purpose of the speaker and that of the Bryant, 562 US. at 367. Is a statement testimonial for purposes of the Confrontation Clause of the Sixth Amendment when the speaker talks with a trusted family member who is intentionally soliciting incriminating information and secretly recording the conversation at the behest of the police in order to create evidence for trial? i