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Confrontation – Statements Made to Police During “Ongoing Emergency” not “Testimonial” Hearsay

Michigan v. Bryant, USSC No. 09-150

At respondent Richard Bryant’s trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot. … 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.” Davis, 547 U. S., at 822. Therefore, Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.

Crawford v. Washington, 541 U. S. 36 (2004), of course, irrevocably altered the Confrontation Clause landscape, shifting the inquiry from “reliable” to “testimonial” hearsay. Or so it was thought. The Court now, in Bryant, tosses in enough backfill that even if the terrain landmarks appear superficially different, you’re likely to find yourself in a very familiar spot at journey’s end. Until Richard Friedman posts his Fodor’s, you’ll have to take a self-guided tour:

As our recent Confrontation Clause cases have explained, the existence of an “ongoing emergency” at the time of an encounter between an individual and the police is among the most important circumstances informing the “primary purpose” of an interrogation. See Davis, 547 U. S., at 828–830; Crawford, 541 U. S., at 65. The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “prov[ing] past events potentially relevant to later criminal prosecution.” 8 Davis, 547 U. S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” Fed. Rule Evid. 803(2); see also Mich. Rule Evid. 803(2) (2010), are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990) (“The basis for the ‘excited utterance’ exception . . . is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed. 2010) (same); Advisory Committee’s Notes on Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency. 9

Crawford was supposed to have buried the Ohio v. Roberts reliability analysis, a crucial component of which was whether the statement satisfied a well-settled hearsay exception. As the blockquote above suggests, it is possible that that analysis has been slipped back in, if not in those terms. More parochially: it is possible (though far from certain) that Bryant calls into question the holding of State v. Mark D. Jensen, 2007 WI 26, ¶24 that “a broad definition of testimonial is required to guarantee that the right to confrontation is preserved.” Breadth and narrowness are simply irrelevant to the Bryant methodology – as to which, some brief remarks:

The test for a testimonial statement is, as suggested by the opening quote, objective. Thus, similar to 4th amendment analysis (it doesn’t matter what the police had in mind so long as, objectively, they had probable cause to arrest, etc.), it doesn’t matter whether the police or the declarant subjectively intended that the statement be used in court. “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.” Moreover, “the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation.”

The facts at hand present “a new context: a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim. … Thus, we confront for the first time circumstances in which the ‘ongoing emergency’ discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by ‘the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’ Id., at 822.” The Court suggests that a non-DV emergency such as this presents a public threat as opposed to the more confined threat presented by a DV altercation. “Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue.” That a dangerous weapon was in play is also highly relevant. “The physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant’s house.”

The upshot is that the victim’s statements prompted by police questioning as to what happened are deemed nontestimonial because the shooter remained at large and thus the police were presented with an “ongoing emergency.” Sound just a bit like the “public safety” exception to Miranda, New York v. Quarles, 467 U. S. 649 (1984)?

UPDATE: On Point gets results! Professor Friedman offers his first thoughts:

So we’ll have to see over time. But this decision strikes me as a giant step backwards towards a morass like that of Ohio v. Roberts, which gave the courts considerable leeway to let almost any statement in. Indeed, I have not even begun to address the jarring suggestions, which read at their most dangerous seem to augur a return of Roberts, that a factor in determining the Confrontation Clause issue may be the reliability of the statement and that hearsay law may be a guidepost in that determination. More on that later.

And Colin Miller joins the chorus (“it seems to me that the majority in Michigan v. Bryant is using the Ohio v. Roberts ‘adequate indicia or reliability’ test to determine whether statements are testimonial or nontestimonial”).

Great minds ….

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