Michigan v. Bryant, Part 6

March 3, 2011

Yesterday, I posted an entry about Justice Scalia accusing the majority in Michigan v. Bryant of retreating from Crawford v. Washington, 541 U.S. 36 (2004) and reverting to Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford rejected “as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” In today’s post, I wanted to explain the way in which I think that the majority resurrected Ohio v. Roberts. In Davis v. Washington, the Court held that

Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

I think that the general assumption was that this language created a dichotomy. If the primary purpose of an interrogation was to enable police assistance to meet an ongoing emergency, statements made during that interrogation were nontestimonial. If, at the time of the interrogation, there were no (longer) such ongoing emergency, THEN the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution and statements made during that interrogation were testimonial.

According to Michigan v. Bryant, there is no such clean dichotomy. Instead, the Court held that

Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, the primary purpose of an interrogation is to respond to an “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the scope of the Clause. 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. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

In other words, according to Bryant, if, at the time of an interrogation there was no (longer) such ongoing emergency AND the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution THEN statements made during that interrogation were testimonial. Moreover, according to the majority, in these non-emergency situations, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”

The majority then goes on to note that the logic for deeming statements made during ongoing emergencies nontestimonial 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…” are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood….An ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency. ^FN9

FN9. Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest).

In other words, a statement is non-testimonial if it, in effect, has adequate indicia of reliability. According to the majority, reliability seemingly can be inferred if the statement falls within a hearsay exception that covers statements that, by their nature, are made for a purpose other than use in prosecution (This is similar to “firmly rooted” hearsay exceptions under Ohio v. Roberts). In other cases, there may be other circumstances surrounding a statement to make it nontestimonial (This is similar to Ohio v. Roberts allowing for the admission of hearsay with particularized guarantees of trustworthiness). Thus, 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. In fairness, the conception of reliability that the majority is using seems different from the conception of reliability uses in Roberts, but is it meaningfully different? At this point, I don’t think so, but I guess I will have to see what lower courts do with Bryant before reaching any final conclusions.

-CM