The continuing evolution of Crawford
Back in 2001, Detroit police responded to a call of a man shot at a gas station, and found Anthony Covington lying on the ground next to the door of his car, his shirt covered with blood. The officers asked what happened, and he told them he'd been shot. One asked who shot him, and Covington gave them the name "Rick" and an address about six blocks away. Covington died four hours later, but his statements to the police were used to apprehend Richard Bryant and convict him of second degree murder. Yesterday, the US Supreme Court heard arguments on whether the Michigan Supreme Court was right in holding that Covington's statements were inadmissible because they were testimonial under Crawford v. Washington.
While Crawford prohibited admitting "testimonial" statements, even if they fell within one of the hearsay exceptions, that rule wasn't accompanied by much clarity in the definition of what constituted a "testimonial statement." Besides listing the easy ones -- written statements to the police, affidavits, prior depositions -- the Court tossed out a generic definition: "the statement was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Things got more complicated with the decision in in Davis v. Washington in 2006. Davis involved a 911 call, in which the victim told the dispatcher that Davis was beating her; the Court held that the "primary purpose" of the interrogation by the dispatcher was to allow the police to respond to an ongoing emergency, not to gather facts for use at trial.
Whether the police who questioned Covington were responding to an "emergency" was the heart of the oral argument yesterday. The attorney for Michigan tried to inject a concept of formality into the equation -- the jailhouse interview with Crawford's wife, versus the 911 call in Davis -- but that didn't go very far; Roberts posed a hypothetical involving street questioning about an informant regarding a drug deal, which he said would be testimonial "despite the lack of formality," and Scalia, the author of Crawford and every subsequent opinion based on it, was even more dismissive: "Forget about formality. Formality or no formality has nothing to do with it."
The emergency aspect of the argument resonated far more with several justices, as shown by this softball from Kennedy: "Did the police know that this man was not on a rampage... that he was not taking hostages?" Scalia returned that volley as well: "Will they ever know that?" The State's argument, he contended, was that any inquiry into a violent crime could then be classified as a "response to an ongoing emergency," at least until the perpetrator is identified.
Counsel for Michigan denied this, but the absence of anything resembling a bright line was made manifest by further questioning. One possible distinction was between present and past events, but even that breaks down under closer analysis. Roberts posed another hypothetical: police respond to a shooting at a school and comes across a wounded student who tells them the principal did it (perhaps the one fantasy shared by students and principals):
It's quite different from saying this happened to some guy driving by or something like that. If it says the principal did it, it's at 10:00, it's in the school, that suggests to me more, not that the dying student or the wounded student wanted to make sure that the principal was convicted, but there is an emergency, something is happening.
Complicating the situation even more is the fact that while the two tests, "objective witness" and "primary purpose," use completely divergent viewpoints -- in the former, the focus is on the perspective of the maker of the statement, while in the latter it's on the police interrogator -- that's not necessarily the case. Footnote 1 in Davis "even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." This would seem to require a court to determine what the person being interrogated thought the primary purpose of the interrogation was.
While the oral argument did little in sorting this all out, it clearly demonstrated that several justices are having buyer's remorse about joining in Crawford. Breyer openly admitted to having "had many second thoughts when I've seen how far it has extended." While Crawford and Davis were decided unanimously, Giles v. California, another case on the subject decided in 2008, was 6-3, and Melendez-Diaz v. Massachusetts, last year's decision holding that results of scientific tests fell within Crawford's ambit, was only 5-4.
Perhaps the biggest problem is the realization of how Crawford has impacted the hearsay rule. The trial in Bryant's case occurred well before either Crawford or Davis was decided. The trial court had held a hearing on the admissibility of Covington's statements, decided that they didn't meet the requirements for a dying declaration, but that they did qualify as "excited utterances." (This was a critical problem, from the perspective of building a record; had the case occurred after Davis, the prosecutor may well have directed questioning toward showing that there was an ongoing emergency, rather than to whether Covington was "excited.") The hearsay exceptions are predicated on notion that cross-examination is unnecessary for these statements, because they are inherently reliable. As Scalia noted, though, the Confrontation Clause does not pertain to reliability, it pertains to the opportunity to cross-examine. A more practical-minded judge might decide that all this isn't worth the bother: the key issue is indeed reliability.
Whether five judges can be cobbled together for that view so as to overrule or substantially limit Crawford is an open question. Thomas has always adopted a very restrictive view what's "testimonial" -- to him, only formalized statements to the police, by way of affidavit or similar writing, would qualify. At least from their questions, Kennedy and Breyer are in open revolt. That leaves Alito and Roberts, certainly not prone to the pro-defense side of the spectrum. While the latter two joined in the opinion in Giles, they dissented in Melendez-Diaz. (In fact, Scalia garnered a majority in that case only because Thomas viewed the evidence, a lab report, as the type of "formal" evidence he believes is testimonial under the Confrontation Clause.)
In fact, it's entirely possible that if Bryant doesn't wind up limiting Crawford, it's not going to amount to anything. Since the United States participated as an amicus for Michigan, and Elena Kagan was solicitor-general during the time the brief was prepared, she's recused herself from the case. The case vote could easily be 4-4, with the Michigan court's decision being therefore affirmed without opinion.
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