Emily Johnson-Liu
It has now been seven years since Crawford v. Washington1 sketched the broad outlines of a new approach to confrontation. This spring, in a case called Michigan v. Bryant,2 the finer details are beginning to emerge, and not everyone is happy about it. The case is both significant and surprising. It is significant because it sets out the test that courts must now use to determine whether the Confrontation Clause bars admission of an out-of-court statement to law enforcement, and it is surprising because it resurrects the rationale for confrontation that most readers thought Crawford made irrelevant.
The starting point for Bryant
Bryant, like Crawford and Davis/Hammon3 before it, deals with statements made to law enforcement, so it begins with those precedents. Because the text of the Sixth Amendment’s right to confrontation applies to “witnesses against” the accused, Crawford reasoned that those who function as witnesses (i.e., those whose out-of-court statements at trial are “testimonial”) must be in the position of a witness—on the witness stand, subject to cross-examination.4 Statements made during police interrogations, such as the recorded, Mirandized, stationhouse interview at issue in Crawford, qualified as “testimonial,” requiring confrontation or the witness’s unavailability and a prior opportunity for cross-examination.5 But Crawford left unanswered what types of statements made to law enforcement would be testimonial and thus subject to confrontation.6
Then in Davis, the court offered a circumstance where statements to law enforcement would not be testimonial: when the primary purpose of the interrogation was to enable police to respond to an ongoing emergency.7 There, the court agreed the statements of a domestic violence victim were nontestimonial when they came in a 911 call reporting an ongoing assault. But in the companion case Hammon, the court found another domestic violence victim’s statements testimonial when they were made to a responding officer after the immediate threat from her husband had been neutralized.8 When the judges considering Bryant attempted to apply these two precedents, they were in sharp disagreement, even about whether there was an ongoing emergency.
The facts in Bryant
Around 3 a.m., police were dispatched to a gas station on a report of a shooting. As officers arrived, they went directly to Anthony Covington, who had been shot in the abdomen and who was lying next to his car in the parking lot. He was in a lot of pain and had difficulty breathing. Each officer asked Covington, “what happened,” “when,” “who shot you” and “where?” Covington told them that Richard Perry Bryant had shot him about 25 minutes earlier at Bryant’s house. He said he had been talking to Bryant through the back door of the house and when he turned to leave, he had been shot through the door. He then drove himself to the gas station. This conversation took about five or 10 minutes and ended when paramedics arrived. Covington died at the hospital a few hours later. His statements to police were admitted at Bryant’s trial for murder over objection that they violated his right to confront Covington.9
The new test
A five-judge majority on the Supreme Court, led by Justice Sonia Sotomayor, held that Covington’s statements were nontestimonial.10 The majority adopted a test for future cases to distinguish which statements to law enforcement are testimonial. Under the test, courts must consider the circumstances of the encounter, the questions and statements of the participants, and their actions and ultimately determine the primary purpose of the interrogation, as viewed by reasonable participants at the time (favoring neither the perspective of the declarant nor the interrogator).11 The circumstances of the encounter include whether there is an ongoing emergency (which should heavily influence the “primary purpose” question)12 and the level of formality to the conversation. The court observed that while formality makes it more likely that both the questioner and declarant knew the statements were produced for a later trial, informality will not by itself render a statement nontestimonial.13
The majority’s approach is significant because it clarifies that resolving an ongoing emergency, while an important factor, is not the only purpose of a conversation with law enforcement that will render such statements nontestimonial.14 As long as the purpose of the conversation is something other than making or procuring an out-of-court substitute for trial testimony, the statement will be nontestimonial.15 Surprisingly, the court added that the hearsay exceptions (think present sense impression, excited utterance, statement for medical diagnosis or treatment, and statement against interest) may provide such “other” purposes,16 resulting in a statement that is admissible despite the lack of confrontation. This idea incited venom from Justice Antonin Scalia, who dissented in Bryant and authored both Crawford and Davis.17 Undoubtedly, the idea is reminiscent of the very scheme rejected in Crawford, where confrontation could be dispensed with if a statement fell within a “firmly rooted” hearsay exception or had “particularized guarantees of truthworthiness.”18 Scalia was disturbed still further by the majority’s references to reliability—a concept he may have thought Crawford banished from the court’s vocabulary.19 The majority reasoned that because the right of confrontation exists to thwart fabrication, it is logical that confrontation (much like the hearsay rules) should give way when the circumstances make the chances of fabrication significantly less likely.20 Because the utility of confrontation is quite low in such circumstances (as when everyone’s focus is on the emergency), it makes sense that the Confrontation Clause would not bar admission of the statement.
How Bryant differs from Roberts
This may very well be a shift away from Crawford’s focus on confrontation for its own sake, but it also reflects a concern that two of the justices expressed during oral argument in Bryant, a concern that there should be a rationale to undergird why certain statements are testimonial and others are not.21 In Bryant, reliability justifies why nontestimonial statements are exempt from confrontation. Despite Scalia’s cries to the contrary, this is entirely consistent with Crawford. Even Crawford recognizes that the Confrontation Clause’s “ultimate goal is to ensure reliability of evidence.”22 And each time Crawford appears to make reliability irrelevant, it does so with the limitation “[w]here testimonial statements are involved.”23 Unlike Ohio v. Roberts, the Bryant test is more than simply replacing confrontation with reliability or trustworthiness. Under Bryant, the judge is to determine the overriding purpose of the conversation with law enforcement. If the primary purpose is something other than creating an out-of-court substitute for trial testimony, then the person making the statement is not being a witness against the accused, and thus the statement is outside the scope of the confrontation right, as Crawford and Davis indicate. The primary purpose of the interrogation—not vague notions of reliability as Scalia contends24—is what determines if a statement is an out-of-court substitute for trial testimony. At the same time, if the primary purpose of the interrogation is something like resolving an emergency (rather than creating evidence for trial), it makes sense that such nontestimonial statements would be beyond the reach of the Confrontation Clause because the purpose of confrontation (to ensure reliable evidence) has already been satisfied.
Regardless if the majority view can be fully harmonized with Crawford, it is the view that ultimately prevailed, along with the suggestion that the hearsay exceptions might provide a primary purpose that would render a statement nontestimonial. Prosecutors would do well to consider this angle, especially as we have to meet a hearsay exception for admission of most out-of-court statements anyhow. But given that Bryant applies only to statements to law enforcement,25 the expansion of the “primary purpose” test into hearsay-exception purposes is unlikely to open the floodgates to admission of out-of-court statements. In the right case, however, a domestic violence victim and a responding police officer might engage in part of their conversation for the purpose of medical treatment. Another reason that looking to the hearsay exceptions is unlikely to make more statements admissible is because the “primary purpose” test is determined not from the perspective of the declarant or the interrogator but from a “combined approach.”26 So it will not be sufficient for a reasonable declarant to lack a testimonial purpose (such as when the declarant is still under the stress of a startling event) if a reasonable officer would have had the primary purpose of producing a substitute for trial testimony.
Finally, prosecutors should think broadly about a possible ongoing emergency and ask whether all potential threats to potential victims have been neutralized at the time of the declarant’s statements to the police. Even in the context of domestic violence cases, the court in Bryant holds the door open to the possibility of an ongoing emergency after the defendant has stopped assaulting the victim and has left the premises. It might make a difference if the defendant knew police were called or if there were a significant risk that he might return to assault the victim again. In Bryant, although the officers did not act as if they were worried about a possible gunman at the gas station, the majority held that there was still an ongoing emergency. And, in case of doubt (such as whether the dying victim would have had the primary purpose of creating a substitute for trial testimony), the court seemed to err on the side of the witness having a nontestimonial purpose.
Although Bryant has filled in more of the details and readjusted the course that Crawford originally set, how the majority’s test will work in application still remains to be seen. What is clear is that Justice Scalia is no longer firmly at the helm, and that is likely to be good news for prosecutors.
Endnotes
1 Crawford v. Washington, 541 U.S. 36 (2004).
2 Michigan v. Bryant, 131 S. Ct. 1143 (2011).
3 Davis v. Washington, 547 U.S. 813 (2006) (decided jointly with Hammon v. Indiana).
4 Crawford, 541 U.S. at 51.
5 Crawford, 541 U.S. at 68-69.
6 Id.
7 Davis, 547 U.S. at 822.
8 Davis, 547 U.S. at 829-30.
9 Bryant, 131 S. Ct. at 1150-51.
10 Bryant, 131 S. Ct. at 1150.
11 Id. at 1162.
12 Id. at 1162.
13 Id. at 1160.
14 Id. at 1155 (“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.) Many had read Davis as setting out a dichotomy of possible purposes: either enabling police to meet an ongoing emergency (which would make the statements nontestimonial) or creating a record for trial (which would make them testimonial). See Davis, 547 U.S. at 822.
15 Bryant, 131 S. Ct. at 1155 (“Where no such primary purpose [of creating a substitute for trial testimony] exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.”).
16 Actually, the court states that the hearsay rules “will be relevant” in making the primary purpose determination. Id. at 1155.
17 Bryant, 131 S. Ct. at 1174 (Scalia, J., dissenting) (calling majority opinion “a gross distortion of the law” that provides an “illogical roadmap” and arrives at an “incoherent” result by employing “a thousand unprincipled distinctions.”)
18 Ohio v. Roberts, 448 U.S. 56, 66 (1980).
19 Justice Scalia wrote in Crawford that the right of confrontation “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004).
20 The court writes, “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.” Bryant, 131 S. Ct. at 1157.
21 Oral argument in Michigan v. Bryant, 2010 WL 3907894, at *27 (Justice Kennedy), *34-35 (Justice Breyer), *37-38 (Justice Kennedy), also available at www.oyez.org/cases/20102019/2010/2009_09_150/argument.
22 Crawford, 541 U.S. at 61.
23 Id., 541 U.S. at 61, 68.
24 Bryant, 131 S. Ct. at 1175 (Scalia, J., dissenting).
25 See Bryant, 131 S. Ct. at 1155 n.3.
26 Bryant, 131 S. Ct. at 1160-61.