March 9, 2011
In a recent 7-2 decision, Michigan v. Bryant, No. 09-150, 2011 WL 676964 (U.S. Feb. 28, 2010), the U.S. Supreme Court continued its discussion of what constitutes a testimonial statement for purposes of the Confrontation Clause of the Sixth Amendment, which provides that the accused in a criminal prosecution has the right to be confronted with the witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the Court held that the Confrontation Clause bars an out-of-court statement by a witness that is testimonial, unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness. In that case, the admission of a wife's out-of-court statements to police officers, regarding an incident in which the defendant, her husband, had allegedly stabbed her, violated the Confrontation Clause. Subsequently, in Davis v. Washington, 547 U.S. 813 (2006), the Court held that a victim's statements in response to a 911 operator's interrogation during an ongoing emergency were not testimonial and therefore were not subject to the Confrontation Clause. However, in a companion case, Hammon v. Indiana, 547 U.S. 813 (2006), the Court held that a domestic battery victim's written statements in an affidavit given to a police officer after she was physically removed from her attacker were testimonial and therefore were subject to the Confrontation Clause.
In Michigan, in what the Court observed was the first Confrontation Clause case post-Crawford to involve a gun, the Court employed a "primary purpose of the interrogation" examination of whether the challenged statements were testimonial by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurred. Using this analysis, the Court concluded that statements made to police concerning the identity of the shooter by a man who had been shot at the home of the alleged shooter and then had driven himself to a gas station, where he lay when police approached him, were not testimonial and thus were not barred by the Confrontation Clause but were governed by state law rules regarding hearsay.
Justice Scalia, the author of Crawford, and Justice Ginsberg dissented. The dissent argued that if it was appropriate to examine the intent of any of the participants to the statements, then the focus should be on the speaker. Under the circumstances of this case, in which the victim was no longer threatened by the shooter, the dissent contended that the sole purpose for the declarant to identify the shooter was to help the police make an arrest, not to protect the victim, the police, or the public. Thus, the statement should have been designated as a testimonial statement subject to the Confrontation Clause. The dissent criticized the majority decision as having established a special exception to the Confrontation Clause for violent crime, which exception exists nowhere in the Constitution.