Crawford, etc.

The Supreme Court has decided Michigan v. Bryant, a confrontation clause case.

Professor Friedman has this to say:

A very unfortunate result. The vote was 6-2, per Justice Sotomayor (a surprise to me); the basis of the decision was that the primary purpose of the statements was to resolve an ongoing emergency (also a surprise to me). . . . . I will write more after I have had a chance to read and absorb the opinions.

This was a 6-2 (Thomas concurs in the judgment, Scalia and Ginsburg dissent, Kagan recused) decision to vacate and remand.

I went straight to Scalia’s dissent in which he considers what I will call the faux emergency doctrine, and here’s how he starts it:

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.

On this I think Scalia is right – more work for lawyers.

The opinion is written by Justice Sotomayor. She summarizes the holding as:

We hold that the circumstances of the interaction between Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.” (Emphasis added.)

In 2006, the Court in Davis v. Washington and Hammon v. Indiana, 547 U. S. 813, took a further step to “determine more precisely which police interrogations produce testimony” and therefore implicate a Confrontation Clause bar.

There are lots of comments appearing, here is a rather pithy quick note by Prof. Kent Scheidegger.

Seven years ago, the Supreme Court revamped the jurisprudence of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004). No longer would the admissibility of a hearsay statement of an unavailable witness depend on its reliability. Instead, the statement would be excluded if it was “testimonial” in nature. If not, its admissibility is a matter for the jurisdiction’s hearsay rule. What the heck does “testimonial” mean? They would work that out later. Today in Michigan v. Bryant, the high court addressed whether on-the-scene statements from a wounded and dying shooting victim are “testimonial.” The answer is “it depends,” and it depends on quite a lot. The test is whether the “primary purpose” of the question is to deal with the emergency as opposed to gathering evidence for prosecution of the perpetrator. As in Fourth Amendment law, the circumstances to be examined are objective, not probing the subjective intent of police officers. Justice Sotomayor, for the majority of five, wrote a long and fact-intense opinion explaining why this case passed the test. Justice Thomas, splitting with Justice Scalia on this point, wrote a brief concurrence in the judgment with a simpler test. The on-the-scene questioning bears no resemblance to formal testimony or a deposition or affidavit. “This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.”

Professor Colin Miller reduces the facts to:

[T]he basics are that police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant’s house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant’s murder trial. After Bryant was convicted, he appealed, claiming that the introduction of Covington’s statements violated the Confrontation Clause, and the Supreme Court of Michigan agreed with him.

It’s a totality of the circumstances test. Slip op. at 12 – 13.

To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis, 547 U. S., at 822, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. When, as in Davis, the primary purpose of an interrogation is to respond to an “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

Justice Ginsburg would have liked a discussion of whether the dying declaration survives under Crawford.

I suspect the opinion is going to engender quite a bit of debate about retrenchment back to Roberts, too much reliance on what the police intended, etc.