Federal Evidence Review

Supreme Court argument highlights challenge in drawing a meaningful line between non-testimonial statements obtained during an “ongoing emergency” and testimonial statements obtained for prosecution, in Michigan v. Bryant, 483 Mich. 132, 768 N.W.2d 65 (2009), cert. granted, _ U.S. _ (March 1, 2010) (No. 09-150)

Last week, on October 5, 2010, the U.S. Supreme Court heard the Confrontation Clause oral argument in the case which concerns the contours of when statements provided to law enforcement responding to an “ongoing emergency” are testimonial or not after Davis v. Washington, 547 U.S. 813 (2006). (Listen to the Michigan v. Bryant oral argument.) The following passage in Davis framed the parameters of the issue:

Statements are non-testimonial 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.

Davis, 547 U.S. at 822 (footnote omitted; emphasis added).

Candidly, Petitioner State of Michigan, though counsel Lori Palmer, acknowledged during the argument that it was satisfied with the Davis standard:

We are not trying to question or in any way change the test already set forth by this Court in Davis. We agree with that test. We simply disagree with the application by the lower court of that test here and the limitation it put on it.

Bryant Transcript, at 16:13-17. The question posed in the case concerns what factors and standard should be adopted to discern when statements are the product of an ongoing emergency or investigation. Some of the key points noted during the oral argument are highlighted below:

Where To Draw The Line?

A number of Justices asked how the line should be drawn between non-testimonial statements obtained during an “ongoing emergency” and testimonial statements obtained for prosecution purposes. See, e.g., Bryant Transcript, at 35:12-13 (“What, in your view, is the correct line and why, most importantly why?”) (Breyer, J); id. at 43-44 (noting “we need to know where to draw the line”) (Alito, J). The Justices posed a number of hypothetical situations which illuminated the difficulty in enumerating a concrete standard.

Petitioner State of Michigan also observed that questions from law enforcement “can have dual purposes and often will. You have to look at the primary purpose here.” Bryant Transcript, at 5:17-19. At the conclusion of the argument, Justice Sonia Sotomayor summarized the positions advanced:

So the issue here is how do you define that dividing line between emergency and non when the police officers are just asking questions that by their nature are always going to be testimonial, because they are going to use or try to use whatever is said later. So in discerning the primary purpose, I think your adversary is saying, you can't go by what the police officer are asking, because they are going to be asking dual motive [questions] always. You have to look to what the Declarant tells you. And is he or she telling you something that suggests an emergency?

Bryant Transcript, at 59-60.

As another factor noted during the oral argument, the point was generally acknowledged that the scope of the “ongoing emergency” may be dictated in substantial part on whether the incident involved a violent crime. However, Justice Antonin Scalia, who authored the opinions in Crawford v. Washington, Davis v. Washington, Giles v. California, and Melendez-Diaz v. Massachusetts, was troubled that a violent crime would provide law enforcement greater opportunity to interrogate and to admit the uncross-examined statements provided at trial. Bryant Transcript, at 17-18; see also id. at 21:22-23 (wondering when the need to neutralize an ongoing threat does “not exist in the case of a violent crime?”) (Scalia, J), 22:10-15 (“So if you use a gun, a knife, or a machinegun, whatever the victim says gets admitted into evidence, because the police could -could be not -- not trying to get evidence, but just trying to safeguard society against the -- the felon on the loose?”) (Scalia, J).

Much of the argument centered on how to determine whether the inquiry of the officers was primarily focused on an “ongoing emergency” or an investigation. Justice Scalia suggested that if the officer asked, “What happened?”, the interrogation would likely be testimonial; if the officer instead questioned, “What is happening?”, the inquiry would be on the ongoing emergency. Bryant Transcript, at 13:7-9; id. at 13:11-13 (“To ask what happened is to ask the declarant to describe past events, which is testimonial.”) (Scalia, J). The Petitioner noted that whether the statements were testimonial or not depended on the context in which the statement was made, and that such a “bright-line rule” proposed by Justice Scalia could not be established. Bryant Transcript, at 13:14-15.

Justice Ruth Bader Ginsburg noted the difficulty in determining whether the primary purpose of the police interrogation was to respond to an ongoing emergency since the same questions could be used to argue that the questioning was motivated by an ongoing emergency or investigation:

Well, how do you know that? Because they would ask the same very questions if what they wanted was testimonial evidence. So you can -- you can characterize that set of questions either way. What would lead us to pick one rather than the other?

Bryant Transcript, at 25-26.

Respondent Richard Perry Bryant, though counsel Peter Jon Van Hoek, urged the Court to adopt a narrower standard of “ongoing emergency” based on whether the event was ongoing or was a past event. See, e.g., Bryant Transcript, at 53-54, 55. Under the Respondent’s proposed definition of “ongoing emergency,” a non-testimonial statement may result “when there is some indication from the statement made by the witness that … there is some immediacy.” Bryant Transcript, at 57:5-9; see also id. at 44:17-21 (“I think that in the absence of any statement by the witness alleging that there is any current ongoing imminent danger, if the witness only gives a statement that relates to past completed events, then it's not a showing of -- of an ongoing emergency.”). Without any indication of immediacy, the statements would be testimonial and therefore inadmissible without cross-examination under the Confrontation Clause. Chief Justice John G. Roberts, Jr. questioned the efficacy of the proposed standard: “what do you do with the statement ‘The guy in the gas station shot me’? Is that purely past or is that an ongoing emergency?” Bryant Transcript, 44:21-25. Respondent answered, “That statement standing alone I would say that that is past, purely past.” Bryant Transcript, 45:1-2.

As Justice Samuel Anthony Alito, Jr. queried, “can there be an ongoing emergency where the statement … recounts something that has occurred, not something that is occurring?” Bryant Transcript, at 44:13-16. The Respondent answered affirmatively to a question from Justice Alito “that the police have to have specific evidence that there is an immediate threat of physical violence that they need to respond to.” Bryant Transcript, at 53:11-15.

Justice Stephen G. Breyer, who joined the Crawford, and Davis majority opinions, twice noted he did not anticipate how far Crawford would be used to exclude statements. See Bryant Transcript, at 34:11-16 (“I agree[d] on joining Crawford , but I have to admit to you I have had many second thoughts when I've seen how far it has extended….”); 52:10-18 (“I will admit that I did not foresee the scope of Crawford .”).

Whose Perspective?

In assessing whether a statement is testimonial or not, one critical issue concerns whether to consider the perspective of the questioner or the declarant or both. What role does the police officer’s questioning serve? This issue is based, in part, on footnote one from the Davis decision, where the Supreme Court noted, in part:

[O]f course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.

Davis, 547 U. S. at 823 n.1.

On the proper focus and perspective, Justice Alito asked: “In a situation like this, do you think it's meaningful to ask what the primary purpose of the victim was when he responded to the police and said who shot him?” Bryant Transcript, at 7-8. Justice Sotomayor noted that “in Davis, the issue is: Why was the declarant talking? What you were trying to do was to figure out whether the declarant was seeking help or attempting to get someone arrested.” Bryant Transcript, at 7:5-8. Justice Scalia responded, based on Davis, “it's the purpose of the declarant, not of the questioner.” Bryant Transcript, at 7:21-22. Justice Scalia clarified that “ultimately the statements” are evaluated to determine whether “they are testimonial or not.” Bryant Transcript, at 12:17-19. Petitioner’s counsel explained:

I think what happens is the interrogator's statements are not what are going to be determined to be testimonial or non-testimonial. They provide a glimpse into the context. So we can determine whether those statements that are at issue are testimonial or non-testimonial.

Bryant Transcript, at 12:5-10. However, the Petitioner noted the challenges in determining the intent of the unavailable declarant. Bryant Transcript, at 8:12-16 (“any time you ask the Court to delve into the subjective intent of someone who is not present and cannot testify and cannot tell you, it necessarily complicates things.”). When asked by Chief Justice Roberts about the footnote, Acting Deputy Solicitor General Leondra R. Kruger, arguing as amicus curiae in support of Petitioner, generally concurred:

In the end it's the Declarant's statement that the Confrontation Clause requires us to examine…. We read footnote 1 to be an acknowledgement that answers given in response to police interrogation do not constitute the universe of possible testimonial statements, that testimony can indeed be volunteered as was Lord Cobham's letter, for example, in Sir Walter Raleigh's treason case, but in the end Davis, I think, quite properly focuses on the primary purpose of the interrogation.

Bryant Transcript, at 30:9-11, 30:13-20. The Respondent also urged that the focus should be on the content of the statement by the declarant. Bryant Transcript, at 35:16-19 (“where it is the response of a citizen to questions from a police officer, that you look primarily, as footnote 1 indicates, to the content of that statement”).

Role Of Reliability

Justice Anthony M. Kennedy asked about the “rationale for admitting” the statements, since Crawford had rejected a formulation based on the reliability of the statement. Bryant Transcript, at 26:21-24. He wondered whether the “so-called emergency exception,” under Davis , was essentially supported by a reliability rationale. Bryant Transcript, at 37:21-24, 38:8-9, 38:12-13 (“Isn't there a reliability component that underlies this whether we like it or not?”). Justice Scalia responded to this line by noting that the exceptions under the Confrontation Clause were not based on a reliability standard, as Justice Kennedy suggested, but on “the opportunity to cross-examine.” Bryant Transcript, at 42:14-19.

Applicability Of The Dying Declaration Exception

The availability of a dying declaration exception under the Confrontation Clause remains an open issue after Giles v. California, 554 U.S. _, 128 S.Ct. 2678 (2008), and Crawford, 541 U.S. at 56 n.6 (“Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.”) (citations omitted).

Some Justices wondered whether the dying declaration exception could apply in the case. For example, Justice Alito asked whether a dying declaration would be barred under Crawford. Bryant Transcript, at 35-36; id. at 36: (“What does that tell you about the understanding of the scope of the confrontation right at the time when the Sixth Amendment was adopted? Because a dying declaration may very well be testimonial under -- is likely to be testimonial under the Crawford test.”) (Alito, J).

Justice Ginsburg noted that while the prosecutor elected the excited utterance hearsay exception at trial, which occurred before the Davis decision, could the dying declaration exception been asserted instead? Bryant Transcript, at 19:21-25. The Petitioner responded, “Absolutely.” Bryant Transcript, at 20:1. Justice Ginsburg asked Respondent the same question, and the Respondent ultimately stated that while the issue remains open “there is no need to reach that question in this case because this is not a dying declaration case.” Bryant Transcript, at 42:12-13; see also id. at 36:1-3 (“We don't have to deal with that question in this case because this is not a dying declaration.”).

Formality Of Setting As A Factor

Petitioner State of Michigan argued the victim statements in response to police questioning lacked the formality suggested in some of the Court’s cases. Bryant Transcript, at 3-4; 3:10-11 (“Formality is indeed essential to testimonial utterance”); 59:12-18 (“I would just like to reiterate that the underlying principle as this Court has said repeatedly in Crawford and in Davis is formality, and that's what the purpose of any inquiry should be in looking at the scene whether there is an emergency or not or Declarant's view or not, it all comes down to formality akin to a magisterial examination.”). However, some of the Justices did not appear convinced that the formality of the questioning was a governing factor. See, e.g., BryantTranscript, at 4:5-11 (“Well, it can't all be the formality of the context.”) (Roberts, CJ); id. at 4:19-21 (“Forget about formality, in other words. Formality or no formality has nothing to do with it.”) (Scalia, J).

Recusal

Justice Elena Kagan recused herself from the case since she had signed the amicus curiae brief filed by the United States in support of the Petitioner. Consequently, if the Bryant opinion results in a four-to-four ruling by the Supreme Court, then the Michigan Supreme Court judgment, reversing and remanding the case for retrial, would be affirmed. The Bryant opinion will be issued during this Term of the Court.