U.S. Supreme Court decision 2-28-11

Michigan v. Bryant            Confrontation Clause – Parameters of an “on-going emergency”

Sometimes Justice Scalia is just too much fun, especially when he is on your side. Justice Scalia wrote in dissent, “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. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent."

Facts: The deceased drove himself to a gas station after someone shot him. The police (5 officers at different intervals according to Scalia) continually questioned the deceased about the identity and location of the shooter. The deceased, well, dies a couple hours later. Nevertheless, the deceased claimed Mr. Bryant shot him at Mr. Bryant’s home. The Michigan Supreme Court found no “on-going emergency” and thus, held the statements were inadmissible testimonial statements.

Issue: Whether statements made to police constituted non-testimonial statements made to help resolve an “on-going emergency”?

Held: Yes.

Reasoning: Essentially, the Court held that if the statements were given to assist in an “on-going emergency” then those statements are non-testimonial in nature, and thus, can be admitted without violating the Confrontation Clause – nothing significantly different from Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. However, this decision is a complete bastardization of the phrase “on-going emergency.” In Davis, the Court held statements made during a 911 call about the whereabouts of an assailant during the crime constituted non-testimonial statements. The Court found so because the primary purpose of the police interrogation was to provide assistance during an emergency not primarily with investigating a crime. However, here in Bryant, the Court, gives wide latitude to the police if they simply claim “on-going emergency.” Over a couple of hours both at the gas station and at the hospital, numerous officers interviewed the deceased. No officer testified, according to the opinion, that their intentions were to track down “a murderer on the loose,” as Scalia coined. According to the opinion, the purpose of the interrogation determines whether the statements can be classified as testimonial or non-testimonial – whether the police truly want to resolve an “on-going emergency” or simply want to investigate an alleged crime. Odd, given the Court’s greater and greater disdain for any 4^th or 5^th Amendment litigation where the intentions of the officers have almost become irrelevant and inadmissible, that the Court would then direct lower courts to start examining the officer’s intentions during the interrogation.