Monday, February 28, 2011
My prior post on Michigan v. Bryant dealt with two aspects of the Court's opinion. It noted that under the opinion, the Court (1) adopted an objective test for determining whether statements are "testimonial" for Confrontation Clause purposes; and (2) concluded that this test should focus upon the statements and actions of both the interrogator and the declarant.
This post focuses upon three more important aspects of the Court's opinion and how the Court decided that Covington's statements were non-testimonial.
Formality v. Informality
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] 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.
According to the Court in Michigan v. Bryant, the Supreme Court of Michigan erred in taking this language to mean "that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry." Instead, the Court found that
Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to “establish or prove past events potentially relevant to later criminal prosecution,” id., at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent....The court below, however, too readily dismissed the informality of the circumstances in this case in a single brief footnote and in fact seems to have suggested that the encounter in this case was formal....As we explain further below, the questioning in this case occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation in Crawford.
Therefore, courts applying the Confrontation Clause (at least to police interrogations) must now consider the formality or informality in encounters between declarants and officers.
Domestic Violence Cases
joined by a number of their amici, contend[ed] that the nature of the offenses charged in th[o]se two cases-domestic violence-require[d] greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial.
The Court refused to allow for greater flexibility in domestic violence cases, and many have lamented that this failure has hindered many domestic violence prosecutions. See, e.g., Tom Lininger, Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 281 (2006) ("The Supreme Court's recent interpretations of the Confrontation Clause have hindered many categories of prosecutions, but none more significantly than prosecutions of domestic violence.")
This lament is likely to increase with Michigan v. Bryant. According to the Court,
Davis and Hammon involved domestic violence, a known and identified perpetrator, and, in Hammon, a neutralized threat. Because Davis and Hammon were domestic violence cases, we focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them....
Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue.
It is easy to see several courts citing to this language in domestic violence cases to find that victims' statements were testimonial.
Weapon and the Damage Done
Finally, according to the Court in Michigan v. Bryant,
The Michigan Supreme Court also did not appreciate that the duration and scope of an emergency may depend in part on the type of weapon employed. The court relied on Davis and Hammon, in which the assailants used their fists, as controlling the scope of the emergency here, which involved the use of a gun. The problem with that reasoning is clear when considered in light of the assault on Amy Hammon. Hershel Hammon was armed only with his fists when he attacked his wife, so removing Amy to a separate room was sufficient to end the emergency....If Hershel had been reported to be armed with a gun, however, separation by a single household wall might not have been sufficient to end the emergency....
Taking into account the victim's medical state does not, as the Michigan Supreme Court below thought, “rende[r] non-testimonial” “all statements made while the police are questioning a seriously injured complainant.”...The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.
Therefore, courts applying the Confrontation Clause (at least to victim statements) must now consider the weapon used by the accused and the medical condition of the declarant when making the subject statements.
According to the court, an objective analysis revealed that the officers' interrogation of Covington was nontestimonial. Covington was seriously injured, meaning that his statements were likely either reflexive and without purpose or directed toward resolution of his medical injury. Covington did not give officers a motive for the shooting or indicate that it was merely a private dispute, meaning that the primary purpose of the interrogation was to track down Bryant and prevent him from harming Covington or others. The fact that Bryant had a gun increased the possibility of such harm and lent further support to this purpose. Finally, with regard to the (in)formality of the interrogation, the Court found that
This situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. As the officers' trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and, contrary to the dissent's portrayal,...they did not conduct a structured interrogation....The informality suggests that the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.
My Conclusion: "Testimonial" Under the Confrontation Clause & the Public Safety Exception: The Same Thing?
Michigan v. Bryant really reads to me like the Supreme Court (re)applying the analysis of the Miranda public safety exception to the Confrontation Clause. In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court found that officers do not need to give Miranda warnings when their questions are "necessary to secure their own safety or the safety of the public." According to the Court in Quarles, "We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." (emphasis added). And, in Davis v. Washington, the Court cited to Quarles, noting that
Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U.S. 649, 658-659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.
With Michigan v. Bryant, the Court seems to be saying that "testimonial" means the same in both contexts. In adopting an objective test, the Court found an objective approach "consistent with our rejection of subjective inquiries in other areas of criminal law" and cited to Quarles as one example. Later, in finding the victim's medical condition relevant, the Court basically found that "testimonial" means the same in both contexts, concluding that
Trial courts can determine in the first instance when any transition from nontestimonial to testimonial occurs,FN10 and exclude “the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”
FN10. Recognizing the evolutionary potential of a situation in criminal law is not unique to the Confrontation Clause context. We noted in Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect, ... trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” 547 U.S., at 829 (quoting New York v. Quarles, 467 U.S., at 658-659).
Finally, in finding that the Confrontation Clause test should focus upon the statements and actions of both the interrogator and the declarant, the Court concluded in Michigan v. Bryant that
The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. See New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (“Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives-their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect”)
Moreover, while the Court didn't mention it, obviously by considering the weapon used by the accused and the zone of potential victims in Confrontation Clause cases, courts will be using the analysis from public safety exception cases.
I will probably post about the dissenting opinions, including Justice Scalia's "confrontational" dissent, tomorrow. In the meantime, you can check out Orin Kerr's post about Scalia's dissent over at The Volokh Conspiracy.