Tuesday, March 1, 2011
Yesterday, I did two posts (here and here) about the Supreme Court's latest Confrontation Clause opinion: Michigan v. Bryant. Those opinions addressed the majority opinion. Today, I tackle Justice Scalia's "confrontational" dissent. In his dissent, Justice Scalia claims two things: (1) that "[t]he Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes; and (2) that the majority is retreating from Crawford v. Washington, 541 U.S. 36 (2004) and reverting to Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford rejected "as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause." Oh, and he also makes a third claim: The majority are idiots. This post focuses upon Scalia's first claim.A Declarant-Focused Inquiry
As I noted yesterday, the majority in Michigan v. Bryant found that "the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation" and are relevant to the question of whether the declarant's statements are testimonial According to Scalia,
The declarant's intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused....That is what distinguishes a narrative told to a friend over dinner from a statement to the police....The hidden purpose of an interrogator cannot substitute for the declarant's intentional solemnity or his understanding of how his words may be used.
A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation.... An inquiry into an officer's purposes would make no sense when a declarant blurts out “Rick shot me” as soon as the officer arrives on the scene. I see no reason to adopt a different test-one that accounts for an officer's intent-when the officer asks “what happened” before the declarant makes his accusation.
Scalia and the Stay Puft Marshmallow Man
Scalia found that the majority's dual-focused inquiry was especially problematic because it allowed the majority to substitute the officers' motivations for the declarant's motivations on false grounds. Scalia noted that
The Court also wrings its hands over the possibility that “a severely injured victim” may lack the capacity to form a purpose, and instead answer questions “reflexive[ly].”...How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court's proposed answer-to substitute the intentions of the police for the missing intentions of the declarant-cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more....
The only virtue of the Court's approach (if it can be misnamned a virtue) is that it leaves judges free to reach the “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial.
In Scalia's view, Covington's mind wasn't a blank slate. Instead, he must have been thinking of something, like Dr. Raymond Stantz thinking of the Stay Puft Marshmallow Man in Ghost Busters. And what he was thinking of was Bryant's ultimate prosecution. According to Scalia,
Looking to the declarant's purpose (as we should), this is an absurdly easy case....From Covington's perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation...” had ended six blocks away and 25 minutes earlier when he fled from Bryant's back porch....Even if Bryant had pursued him (unlikely), and after seeing that Covington had ended up at the gas station was unable to confront him there before the police arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington was surrounded by five armed police officers. And Covington knew the shooting was the work of a drug dealer, not a spree killer who might randomly threaten others....Covington's pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid. They instead primarily asked questions with little, if any, relevance to Covington's dire situation. Police, paramedics, and doctors do not need to know the address where a shooting took place, the name of the shooter, or the shooter's height and weight to provide proper medical care. Underscoring that Covington understood the officers' investigative role, he interrupted their interrogation to ask “when is EMS coming?”...When, in other words, would the focus shift to his medical needs rather than Bryant's crime?
Moreover, Scalia found that even a focus upon the officers' statements and actions made clear that their purpose was apprehending Bryant so that he could be prosecuted. For Scalia,
this is an absurdly easy case even if one (erroneously) takes the interrogating officers' purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None-absolutely none-of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters. To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?
For these reasons, Scalia concluded that "[t]he Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes."