Supreme Court Watch: Chance To Clarify The Scope Of "Ongoing Emergency" Statements Under The Confrontation Clause

In addressing and defining the scope of non-testimonial statements made during an “ongoing emergency,” the Supreme Court may shed light on the perspective to consider in determining testimonial statements (an objective assessment of the circumstances or the declarant's perspective); case may also reveal whether a new majority continues to support the Confrontation Clause analysis under Davis v. Washington, 547 U.S. 813 (2006), and Crawford v. Washington, 541 U.S. 36 (2004), in Michigan v. Bryant, 483 Mich. 132, 768 N.W.2d 65 (2009), cert. granted, _ U.S. _ (March 1, 2010) (No. 09-150)

Since the landmark ruling in Crawford v. Washington, 541 U.S. 36 (2004), one core, persistent issue concerns the scope and contours of “testimonial” statements. In fact, in Crawford, the Supreme Court expressly left “for another day any effort to spell out a comprehensive definition of ‘testimonial,'” recognizing “that our refusal to articulate a comprehensive definition in this case will cause interim uncertainty.” Crawford, 541 U.S. at 68 & n.10. The definition of “testimonial” statements is often dispositive since the Confrontation Clause only applies to “testimonial” statements and does not apply to non-testimonial statements.

In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court held that statements provided to meet an “ongoing emergency” are non-testimonial. Specifically, the Court drew the following distinction:

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.

Davis, 547 U.S. at 822 (footnote omitted). After Davis, one aspect of testimonial statements concerns whether the statements were provided during an "ongoing emergency" in reponses to interrogation conducted with a "primary purpose" to be used in a subsequent prosecution.

On March 1, 2010, the Supreme Court granted certiorari review in a new Confrontation Clause case. The question presented in Michigan v. Bryant is:

Should certiorari be granted to settle the conflict of authority as to whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

On Tuesday, October 5, 2010, argument will be heard in the case. Justice Elena Kagan noted during the confirmation hearing process that she would recuse herself from the case as she had previoiusly filed an amicus curiae brief as Solicitor General. See Brief for the United States of America in Support of Petitioner. Consequently, only eight Justices will hear and decide the case. If a four to four decision is issued, the opinion of the Michigan Supreme Court will be affirmed.

Michigan v. Bryant Facts

On the evening of April 28, 2001, Anthony Covington told his bother that he was going to the residence of Rick to obtain a coat that he had provided to Rick in exchange for drugs. On April 29, 2001, around 3:25 a.m., five Detroit Police Officers responded to a gas station after a report that an individual had been shot. The officers found Anthony Covington bleeding, apparently in pain, and lying on the ground next to the driver’s side door of his car. In response to questions about what had transpired, the victim said he had been shot.

When an officer asked who shot him, the victim identified the defendant, known as Rick. According to the victim, who appeared to have difficulty breathing, he went to a friend’s house, recognized Rick’s voice based on a brief conversation he had outside the back door, and then the defendant shot him. The victim gave a physical description of the defendant “as being 40 years old, 5’ 7” tall, and about 140 pounds”. Instead, the description of the defendant, according to defendant’s driver’s license, noted he “was actually 30 years old, 5’ 10” tall, and 180 pounds.” Bryant, 483 Mich. at __, 768 N.W.2d at 67.

The victim indicated that he had driven to the gas station after the shooting, which was about six blocks from the house where he was shot. The officers went to the house to locate the defendant. The officers “found what appeared to be blood and a bullet on defendant’s back porch and what the police believed to be a bullet hole in the back door,” along with the “victim’s wallet and identification … outside defendant’s house.” .” Bryant, 483 Mich. at __, 768 N.W.2d at 67. The victim died a few hours later at a hospital.

The defendant was arrested a year later in California. On the first trial, the jury hung. At the second trial, which was before the 2004 Crawford decision, the defendant was convicted of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony. The victim’s statements identifying the defendant were admitted as excited utterances under Mich. R. Evid. 803(2). No Confrontation Clause objection was raised.

The state court of appeals affirmed the conviction after concluding the statements were non-testimonial under the decision in Crawford v. Washington, 541 U.S. 36 (2004), which was decided after trial and while the appeal was pending. See People v. Bryant, No. 247039 (Aug. 24, 2004) (per curiam) (unpublished). The Michigan Supreme Court remanded the appeal after the decision in Davis v. Washington, 547 U.S. 813 (2006). See People v. Bryant, 722 N.W.2d 797 (Oct. 31, 2006). The state court of appeals affirmed the conviction after concluding the statements were non-testimonial as the primary purpose of the officers’ question was to respond to an ongoing emergency. See People v. Bryant, No. 247039 (Mar. 6, 2007) (per curiam) (unpublished). Under plain error review, a divided Michigan Supreme Court reversed after concluding the victim’s statements were testimonial and were admitted in violation of the Confrontation Clause. Michigan v. Bryant, 483 Mich. 132, 768 N.W.2d 65 (June 10, 2009).

Petitioner -- State of Michigan

The State of Michigan as Petitioner contends that that the victim statements are non-testimonial since the primary purpose in obtaining the statements was to meet an “ongoing emergency” as recognized in Davis v. Washington, 547 U.S. 813 (2006). Under this argument: Viewed objectively, the primary purpose of the officers’ interrogation of Covington, and of Covington’s responses, was to enable the officers to meet an ongoing emergency, which consisted of both Covington’s life-threatening injury and the fact that the police had no idea if a gunman was in the immediate vicinity or planning more violence, or if there were other victims. In other words, the officers’ questions concerning what had happened, who had shot Covington, and where the shooting occurred primarily served to assess Covington’s medical emergency and the danger to Covington, the officers, or others, both of which constituted ongoing emergencies at the time of the interrogation. The fact that the officers and Covington used the past tense or that Covington had already been shot when the police arrived did not negate the ongoing emergency occurring when the police responded to the scene. Brief for Petitioner the People of the State of Michigan, at 16-17. The Petitioner urged a definition of "ongoing emergency," consistent with state court ruling, which "encompasses (1) a crime still in progress, and (2) situations in which the declarant or officer is in danger, either because of a medical emergency or because the perpetrator poses a threat." Brief for Petitioner the People of the State of Michigan, at 12 (footnote and citations omitted). The Petitioner noted that if the victim had called 911 to report the shooting, the statements would be non-testimonial. See Brief for Petitioner the People of the State of Michigan, at 16 n.27; see also Petition for Writ of Certiorari, at 11 (“any 911 calls made to summon help would be admissible, whether made by the victim or someone else”). According to Respondent, after Davis, an objective standard applies, not one based on the declarant's perspective. Reply Brief for Petitioner, at 1, 2.

Respondent -- Richard Perry Bryant

Respondent Bryant notes that emergency under Davis is limited by a requirement that it be “ongoing.” Since the challenged statement described past events and did not involve a request for medical assistance, it was “inherently” testimonial. Respondent urges that a narrower definition of “ongoing emergency” should apply. As the brief summarizes:

An “ongoing” emergency exists only where the statement is part of the event itself, referring to an immediate threat of harm. Expanding the confines of the ongoing emergency standard will lead to inconsistent rulings in the lower courts, and admission into evidence of out-of-court statements, not subjected to crossexamination, that are obvious substitutes for live testimony. The Davis standard, which determines the character of statements that are the product of interrogation through review of the objective content and circumstances of each particular statement, correctly enforces the protections of the Confrontation Clause.

Brief for Respondent Richard Perry Bryant, at 7. The Respondent notes that the focus is on the declarant, not an objective assessment: “it is the statement by the declarant, and not the questions asked by the police, that must be evaluated for its status as testimonial or nontestimonial.” Brief for Respondent Richard Perry Bryant, at 13. Because there was no “ongoing” emergency at the time the statement was given to the police, the statement was testimonial and inadmissible unless subject to cross-examination at trial.

Other Briefs

Four amicus curiae briefs have been filed in the case. Some of the positions advanced in these briefs are summarized below.

Professor Richard D. Friedman, of the University of Michigan Law School, suggests that "this case may require the Court to determine the proper perspective for determining whether a statement is testimonial." He advocates a "reasonable declarant" standard: "A statement should be deemed testimonial if a reasonable person in the speaker’s position would understand that it would likely be used for prosecutorial purposes." See Brief for Richard D. Friedman in Support of Respondent, at 2, 5 (footnote ommitted).

Thirty-six states filed an amicus brief contending two bases to reverse the state supreme court decision. First, the Court may conclude that the statements lacked "sufficient 'indicia of formality' to be testimonial." In this case, the statements "were plainly lacking in formality and were not intended to substitute for live testimony." Second, the Court can recognize that an exception based on "a res gestae 'spontaneous declaration'" which it claims was recognaed at the time of the Sixth Amendment was drafted. See Brief for States in Support of Petitioner, at 8.

The amicus brief of the National Association of Criminal Defense Lawyers (NACDL) opposes the application of an exception for "a res gestae 'spontaneous declaration'" or comparable exception. The NACDL urge the Court to "hold that a statement’s testimonial status depends on its evidentiary purpose — i.e., on whether the statement, objectively viewed, was made to provide evidence in a criminal investigation or prosecution. Formality should be relevant only to the extent it sheds light on that purpose." See Brief for the National Association of Criminal Defense Lawyers in Support of Respondent, at 3, 4.

Finally, former Solicitor General Elena Kagan filed an cite>amicus brief urging that the statements be assessed from an objective view. As the brief contends, "Statements given in response to questioning that, objectively considered, is primarily aimed at enabling police assistance to meet an ongoing emergency are not properly considered testimonial. Such questioning bears little resemblance to the historical abuses that animated the Confrontation Clause, and an individual who responds to such questions does not act as a 'witness' against the accused." See Brief for the United States of America in Support of Petitioner, at 8. The statements in this case were the result of police questioning which was primarily focused on responding to an ongoing emergency.

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Tuesday’s argument is expected to illuminate many of these issues, including the scope of “testimonial” statements and what may constitute an “ongoing emergency”. For more information on Michigan v. Bryant consult the briefs and record in the case:

Michigan v. Bryant Materials

Merits Briefs

Brief for Petitioner the People of the State of Michigan
Brief for Respondent Richard Perry Bryant
Reply Brief for Petitioner (State of Michigan)

Amicus Curiae Briefs

Brief for the States of Maryland, Utah, Vermont, Hawaii, Nevada, Alabama, Arkansas, Delaware, Mississippi, Arizona, Oklahoma, Maine, New Mexico, Louisiana, Alaska, Massachusetts, Wyoming, Wisconsin, South Dakota, Texas, Minnesota, Washington, Idaho, Virginia , Colorado, Illinois, Pennsylvania, Ohio Connecticut, Kansas, Nebraska, Montana, Indiana, South Carolina, New Hampshire, and Florida in Support of Petitioner
Brief for the United States of America in Support of Petitioner
Brief for Richard D. Friedman in Support of Respondent
Brief for the National Association of Criminal Defense Lawyers in Support of Respondent