By Marianna Bettman
Oh-oh. A 6-2 decision from the U.S. Supreme Court, and I agree with dissenting Justice Antonin Scalia (the content of what he says, but absolutely not his tone!). I agree with him most infrequently. And in this case, even Justice Clarence Thomas, who almost always agrees with him, didn’t. I’d be really worried if Justice Scalia was the sole dissenter, but luckily Justice Ruth Bader Ginsburg agreed with him too. And Justice Elena Kagan had to sit this one out, which is why there are only eight votes. The majority decision was an important one by Justice Sonya Sotomayor, whose decisions and questioning from the bench have impressed me mightily. In this case she found herself mostly in the company of the conservative wing of the Court, while Justice Scalia was on the side of greater protection for the rights of the accused. Go figure.
Imagine this scenario. The police come upon a dying murder victim. A drug deal gone sour. The man tells the police who shot him. Then he dies. Can the police testify at the trial of the accused about what the victim said? That is exactly the issue before the high court in Michigan v. Bryant. Here’s what happened.
At about 3:30 in the morning, Detroit police responded to a radio call that a man had been shot. Responding to the scene, the police found Anthony Covington lying on the ground next to his car in a gas station parking lot with a gunshot wound to the gut. When the police asked him what happened, Covington told them Richard Bryant had shot him about a half hour earlier, through the back door of Bryant’s house. Covington was taken to the hospital by EMTs. He died a short time later. Bryant was arrested a year later in California.
The Confrontation Clause of the Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” But Covington was dead. At Bryant’s trial, police officers who had spoken with Covington told the jury what Covington had told them. Was it proper for the jury, which convicted Byrant of second-degree murder, to hear what Covington said when Bryant never had the chance to cross examine Covington? Simple question. Complicated answer.
The U.S. Supreme Court accepted the case to decide if the admission of Covington’s statements violated the Confrontation Clause. The Supreme Court of Michigan had held that they did. The U.S. Supreme Court disagreed, and reversed.
In 2004, in Crawford v. Washington, a landmark opinion of the Court authored by Justice Scalia, the Court held that to meet the requirements of the Confrontation Clause, certain kinds of out-of-court statements labeled “testimonial statements” could not be used at trial unless the person who made the statements (known in lawspeak as the declarant) was available to be cross-examined. While it gave some examples, the high Court did not define “testimonial” at the time, choosing to leave that issue for future development.
In 2006, in a pair of domestic violence case opinions also authored by Justice Scalia, the high court developed the primary purpose test to help determine if a statement is testimonial or not. It’s important to remember that if a statement is found to be nontestimonial, it can be admitted at trial and used against the accused even if the declarant isn’t at the trial and hasn’t been cross-examined. So this is a very key test.
Under the primary purpose test, statements are nontestimonial (and thus admissible) when the primary purpose of any questioning is to help police meet an ongoing emergency. So, even though the victim of domestic violence in the first case didn’t show up at the trial of the alleged perpetrator, the Court allowed into evidence the tape of a 911 call in which the victim was crying for help during the incident while it was going on. But statements are testimonial (and thus not admissible) if the primary purpose of any questioning is to help the police prove past events to help with the later prosecution of the offender. In the second of the two domestic violence cases, where the victim also did not show up at trial, the Court refused to allow the victim’s statements to police to be used against the alleged perpetrator, because when the police arrived the incident was already over, and the primary purpose of any questioning was to help the police prosecute the offender.
So, in what category were the statements of the dying murder victim in this case? To answer this question the Court first had to decide from whose perspective — police or declarant — to apply the primary purpose test, and muddied the waters in my view by deciding that it should be from both perspectives. Then the majority significantly expanded the concept of an “ongoing emergency” emphasizing that context matters greatly. Unlike the domestic violence cases, this case involved the use of a gun and a perpetrator who was still at large. Key factors the Court found highly important were the victim’s medical condition (clearly urgent here), the threat to the public of a shooter on the lam, and the lack of formality of the police questioning (disorganized and informal, suggesting that the police weren’t spending time building their case; formality of questioning at the police station is much more suggestive of a primary purpose to prosecute the offender). Putting all this together the majority found the primary purpose of the questioning was to meet an ongoing emergency. The Court held that Covington’s dying statements in answer to police questions should have been admitted in the case and heard by the jury.
Justice Thomas concurred separately to express his dislike for the primary purpose test. But he agreed that the statements did not violate the Confrontation Clause mostly because of the lack of formality of the police questioning.
Justice Scalia was scathing in dissent, even more than usual. He wrote, “today’s tale — a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose — is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however — or perhaps as an intended second goal — today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” And that’s just the first paragraph. The entire opinion goes off in this vein.
Justice Scalia believes that the primary purpose test should be evaluated solely from the point of view of the declarant, not the declarant and the police. Applying the test, he finds this “an absurdly easy case” — the dying victim made his statements to the police so they could catch Bryant, arrest and prosecute him. Justice Ginsburg agreed with him in a short paragraph of her own. Add a few paragraphs more from me, and a vote with the dissent.
Marianna Bettman is a professor at the University of Cincinnati College of Law.