Opinion recap: Court expands a hearsay exception
On Monday, by a vote of six to two (with Justice Kagan recused), the Court held that testimony by police officers at a murder trial regarding the dying victim's identification of the defendant did not violate the defendant's rights under the Confrontation Clause. Because the "primary purpose" of the victim's statements was to enable police to respond to an ongoing emergency, the Court explained, they were admissible at Bryant's trial.
In its earlier Confrontation Clause cases, the Court had held that statements made to the police to meet an "ongoing emergency" are "nontestimonial" and therefore can be presented at trial even if the defense cannot cross-examine the declarant, as guaranteed by the Confrontation Clause. But it was clear from oral argument back in October that the Court was searching for a more refined test to distinguish all such "nontestimonial" statements from "testimonial" statements that must be excluded unless the witness can take the stand. The lawyers on both sides of this case offered various formulas: the Court could consider, for example, the "reliability" of the statement, the motivations of the interrogators and/or the speaker, the "formality" of the interrogation setting, and even the past or present tense of the statement. Ultimately the Court embraced all of these factors as part of a contextual inquiry into the primary purpose of the statement.
The Court provided two rules to guide the inquiry. First, the primary purpose test considers the perspectives of both interrogators and the interrogated. In other words, a witness can answer even questions asked in good faith in a way that makes their primary purpose testimonial. Second, the test is objective: to determine primary purpose, courts should look at the purpose that reasonable actors would have in eliciting or giving the statement, rather than at the actual motives of the parties. If the statement was made to meet an ongoing emergency, its primary purpose will usually be innocent. Whether the emergency is "ongoing" even after the crime is completed, the Court explained, turns largely on the extent of the continuing public danger "“ an assessment that could depend on the weapon used in the crime, the likelihood that the assailant will strike again, the medical condition of the victim, and other case-specific circumstances.
The Court cited two previous cases as illustrations of the outer limits of the "ongoing emergency" idea. First, it explained that a 911 call made during a domestic disturbance in Washington v. Davis was clearly nontestimonial because the violence was ongoing. By contrast, a domestic violence victim's responses to a police interrogation at her home after the beating had ended in Hammon v. Indiana were clearly testimonial because all danger had ended. Bryant, the Court continued, falls in between Davis and Hammon. The victim's identification of Bryant was nontestimonial because it was made in an informal setting and in an effort to assist an ongoing emergency "“ the threat posed to public safety by a shooter on the loose. When the police found and questioned the victim, they did not know the whereabouts of the shooter, or whether he posed a threat to the victim, themselves, or others.
Justice Thomas filed a brief opinion concurring in the judgment. He criticized the primary purpose test as creating "uncertainty . . . for law enforcement and the lower courts," but he agreed that the victim's statements were nontestimonial because the police questioning of him "bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate."
Justice Scalia filed a bitter dissent in which he accused the majority of cutting a sweeping and impractical exception into the Confrontation Clause. (While not generally known as a defendant's champion, Justice Scalia is a staunch defender of the Confrontation Clause. By contrast, Justice Sotomayor has come down regularly on the defendant's side since her confirmation to the Court in 2009.)
Scalia contends that asking trial courts to consider the perspectives of both interrogator and interrogated is impractically complex because of the possibility of a conflict of motives between parties. To avoid conflict, he would have courts consider only the purpose of the declarant. The key to this analysis, he contends, is whether the statement resembles testimony, defined as a "solemn declaration of past events." Statements made during an emergency that describe events while they are happening, like the 911 call at issue in Davis, are the rare exception to the Confrontation Clause because the declarant is clearly seeking help, rather than aiding the prosecution. The existence of an ongoing threat is therefore irrelevant unless it affects the declarant's purpose.
But, Scalia continues, on either his view or the majority's, Bryant's case is "an absurdly easy" one. In naming his assailant, the victim could have had no motive other than securing Bryant's arrest and prosecution. He was in critical medical condition from a gunshot wound, but the identity of the shooter could not bring him medical attention any sooner. Similarly, the police who arrived at the scene were seeking information that might lead to an arrest, not responding to an emergency.
At bottom, Justice Scalia's dissent reflects his concern that the Court's new rule will provide police with an incentive to deprive future defendants of their Confrontation Clause right. If interrogators know that statements they take from witnesses at the crime scene can be used at trial even if the witnesses later become unavailable to testify, they will routinely interrogate witnesses just in case.
Justice Ginsburg also filed a short, separate dissent.
Recommended Citation: Erin Miller, Opinion recap: Court expands a hearsay exception, SCOTUSblog (Mar. 6, 2011, 5:52 PM), http://www.scotusblog.com/2011/03/opinion-recap-court-expands-a-hearsay-exception/