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Another Loss for the Confrontation Clause: The Supreme Court’s Decision in Michigan v. Bryant

Kish Law LLC

In criminal trials throughout the United States, whether here in Atlanta or elsewhere, the Sixth Amendment’s Confrontation Clause protects defendants from being convicted based on out-of-court statements by people who never show up to testify. The Confrontation Clause means what it says, our clients can “confront” the evidence against them and prosecutors should not be allowed to put up one person to say what some other person told him or her. However, the Supreme Court’s relatively recent decision in Michigan v. Bryant is a step backward and lets prosecutors get convictions even when the accuser never gets on the witness stand.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court ruled that the Confrontation Clause is violated when a prosecutor uses hearsay which is “testimonial,” the hearsay is admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial. The Court in Crawford used various formulations of the term “testimonial.” Now, the most commonly adopted version defines a “testimonial” statement as one that “was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.” The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), finding that “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.”

The basics facts in the recent Bryant case are that police found Anthony Covington in a gas station parking lot. Covington claimed he had been shot by Richard Bryant outside Bryant’s house. Covington’s story was that he had then driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant’s murder trial.

The Supreme Court used the “primary purpose test” to decide whether Covington’s statements were testimonial or nontestimonial. If the “primary purpose” was to investigate a crime, then the statements are “testimonial” and thus inadmissible, unless the declarant gets on the witness stand. On the other hand, if the “primary purpose” of the session was to respond to an emergency, then the statements are nontestimonial, and can later be used by a prosecutor even if the declarant is unavailable.

In applying this test that looks for the “primary purpose”, the Court first decided that an objective, and not a subjective view, should be used by judges who are deciding whether a prior statement was testimonial or nontestimonial. According to the Court, it doesn’t matter what the officer (or the dying Mr. Covington) thought they were doing. Instead, judges should take an “objective” view of what was going on. Here, the majority decided that the police were responding to an emergency, and not merely trying to investigate a crime. Justice Scalia in his dissent calls this view of the facts a “transparently false …tale”, because in fact the cops and the dying Mr. Convington all were concerned about the same thing: making a case against the guy who had just plugged Covington with bullet holes.

Next, the Court ruled that judges should look to both the Declarant (here, the dying Mr.Covington) and the Interrogator (the 5 cops who kept asking questions like, “Who” “Where” “When” and “How long ago?”) when deciding the “primary purpose” of the session. The Supreme Court decided that judges should not look merely to what the person said, but should also see what the questioners did or did not do.

The bottom line here is that the Court’s decision in Michigan v. Bryant made it a lot easier for prosecutors to get around the Confrontation Clause. While the decision somewhat reduces the protections offered by the Sixth Amendment, we hope that judges everywhere will zealously guard our rights and not allow wholesale use of out-of-court statements in criminal trials.

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