Walking Crawford back
In Crawford v. Washington in 2004, the Supreme Court handed down perhaps the most significant decision on the 6th Amendment's Confrontation Clause, holding that "testimonial statements," even if they fell within a hearsay exception, were barred at trial unless the defendant had the opportunity to cross-examine the maker of the statement. The Court gave a loose definition of what constituted a testimonial statement -- an ex parte statement to a government official -- but didn't delve deeper into the question because it didn't need to. The statement at issue in Crawford -- his wife's written statement to the police as a result of a lengthy interrogation at the stationhouse -- would have fit into anyone's definition.
But the definition of a testimonial statement eventually had to be fleshed out. The Supreme Court did just that last week in Michigan v. Bryant, and in doing so, may have left little more than a skeleton of Crawford.
Bryant's facts revolved around a 2001 shooting. Responding to a call, police found the victim lying on the ground at a gas station. In response to officer's questions, he told them that he'd been shot by "Rick," who lived six blocks away. The victim died four hours later, but his statements were used to convict Bryant. The Michigan Supreme Court reversed, finding that the statements the victim made were testimonial.
The basis for that conclusion was Davis v. Washington and Hammon v. Indiana, companion cases decided by the Court in 2006 which gave further definition to what statements were "testimonial." Both involved domestic violence: in Davis, the victim had called 911 to report that her boyfriend was beating her, while in Hammon, the police responded to a disturbance call and, after separately questioning the wife, obtained a statement from her detailing how her husband had just assaulted her. The Court found the first one wasn't testimonial and the second one was, creating a "primary purpose" test: if the primary purpose of the statement was to summon police help for an ongoing emergency, it's non-testimonial, but if the primary purpose is to establish past events relevant to a criminal prosecution, it's testimonial.
That left two big issues for the court in Bryant to decide. One was whose perspective governed the determination of whether a statement was testimonial: the questioner or the declarant. Crawford had held that the latter was the focus: the statement was testimonial if "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Davis and Hammon muddied the waters a bit. In fact, it would appear that the first part of the test, the reason for summoning police help, is determined from the perspective of the victim, while the second part, interrogating the person to develop facts for later prosecution, is viewed from the vantage point of the police.
The Court decides this issue by resorting to that old favorite, "totality of the circumstances." While it doesn't use that phrase, the result is the same: in determining what the "primary purpose" of the interrogation was,
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.
The second big issue is whether there was an emergency. The Michigan Supreme Court had used a bright line: if the interrogation was directed toward what was happening now, it was an emergency, but not so if it was simply directed toward determining what had happened. Not so, said the Court. After sifting through the entrails, it concluded
At bottom, there was anongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocksand a few minutes of the location where the police found Covington.
There are several worrisome developments here. One is the expansive definition of the emergency. While the Court cautions that it's not suggesting that the emergency continued until Bryant was arrested -- which actually was a year later, in California -- a number of lower courts have espoused the view that the emergency does in fact continue until the perpetrator is apprehended. The 6th Circuit took that approach just a few months back, as I discussed here, and Bryant will reinforce that, especially in cases which involve firearms; the Bryant Court specifically noted that this was the first Crawford case involving a gun.
More troublesome is the concern I'd voiced when I blogged about the oral argument in Bryant. The hearsay exceptions have developed because courts found those statements so inherently reliable that cross-examination was unnecessary. Crawford clearly rejected that approach; as Scalia said during the oral argument in Bryant, Crawford is about confrontation, not reliability. What's more, Crawford had clearly separated the hearsay issue from the analysis: if the statement was testimonial and confrontation hadn't been provided, you never get to the issue of whether it falls within a hearsay exception.
In my post on the oral argument, I'd expressed the view that more practical-minded justices might not see the benefit of excluding a statement that is clearly reliable just because confrontation wasn't provided, and the Bryant Court edges toward that view. In fact, in one portion of the opinion they analogize the victim's statements to excited utterances, noting that the basis for the exception is that "such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation," and that "an ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency."
Secondly, the Court in Bryant seems to be moving closer to Justice Thomas' view that only "formal" statements can be considered testimonial. While the Court cautions that informality is not determinative, it's one of the factors to be considered in deciding whether the statement was the result of an "emergency."
Scalia, one of the two dissenters (Kagan recused herself), writes with the intemperance of a mother who's just been told that her baby is ugly, which, considering that Scalia was the author of Crawford and every decision on the issue since, is probably an apt analogy. To him, there is simply no question that the interrogation was not directed toward resolving an ongoing emergency: in light of the fact that the police never unholstered their guns, the claim that they were concerned about a present threat to them, the victim, or the public, rings false.
Ginsberg's dissent is much briefer, focusing on the fact that the Court has brought reliability back into the mix, but also highlights a critical problem with the case. The shooting occurred in 2001, and all of the court proceedings took place before Crawford. Thus, the parties developed a record focusing on the applicable hearsay exceptions, not whether the statements were "testimonial," and what the purpose of the interrogation was.
Ginsberg discusses another issue in the case, too. At the trial level, the prosecution argued that the hearsay exceptions for excited utterance and dying declaration applied. The judge agreed that the former did, but never ruled on the latter, and that argument wasn't pursued after that. Had it been, the state might have won on that. Crawford was based on Scalia's usual exegesis of the Constitution's historical underpinnings, and there's language which indicates that confrontation wouldn't be required if the statement fell within a hearsay exception that was recognized at the time of the Framing, such as a dying declaration.
Bryant isn't the last word this term on confrontation issues; just last week, the Court heard oral argument in Bullcoming v. New Mexico, which involves the application of Melendez-Diaz v. Massachusetts; the precise question in Bullcoming is whether an analyst can testify as to the results of tests performed by a different analyst. I'll have a discussion of that next week.