EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, March 2, 2011

Michigan v. Bryant, Part 5

Yesterday, I posted an entry about the portions of Scalia's dissenting opinion in Michigan v. Bryant in which he claimed that "[t]he Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes." Today's post focuses upon those portion of his dissenting opinion in which he claims that 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."

Scalia and Back to the Future

In the 1985 movie, "Back to the Future," Marty McFly travels back in time 30 years from 1985 to 1955 and ends up changing the future. According to Scalia's dissent in Michigan v. Bryant, the majority also went back in time about 30 years to 1980 to resurrect Ohio v. Roberts, which the Court seemingly had put a stake into in its 2004 opinion in Crawford v. Washington.

In Ohio v. Roberts, the Court had held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. Crawford v. Washington overruled this test, finding that when a hearsay statement is "testimonial," the only adequate indicum of reliability is confrontation. According to Scalia, this latter conclusion can't be reconciled with the majority opinion in Michigan v. Bryant. Scalia asserted that

According to today's opinion, the Davis inquiry into whether a declarant spoke to end an ongoing emergency or rather to "prove past events potentially relevant to later criminal prosecution..." is not aimed at answering whether the declarant acted as a witness. Instead, the Davis inquiry probes the reliability of a declarant's statements, "[i]mplicit[ly]" importing the excited-utterances hearsay exception into the Constitution....A statement during an ongoing emergency is sufficiently reliable, the Court says, "because the prospect of fabrication...is presumably significantly diminished," so it "does not [need] to be subject to the crucible of cross-examination."...

The Court announces that in future cases it will look to "standard rules of hearsay, designed to identify some statements as reliable," when deciding whether a statement is testimonial....Ohio v. Roberts...said something remarkably similar: An out-of-court statement is admissible if it "falls within a firmly rooted hearsay exception" or otherwise "bears adequate ‘indicia of reliability.'"...We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.

Of course, the Michigan v. Bryant majority claimed that such a reliability analysis could be useful to determine whether a statement was testimonial, which would be consistent with the Crawford opinion.  In other words, if the reason that a statement is admissible under a hearsay exception is because it is not given with an eye toward litigation/prosecution and thus reliable, the statement would be nontestimonial. But Scalia found this nonsensical, claiming that

The Court attempts to fit its resurrected interest in reliability into the Crawford framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator of whether "a statement is...an out-of-court substitute for trial testimony."...That is patently false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial statements alike come in varying degrees of reliability. An eyewitness's statements to the police after a fender-bender, for example, are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable.

But, here is really the heart of Scalia's grievance with the majority's opinion. According to the majority,

Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

And, according to Scalia,

The Court recedes from Crawford in a second significant way. It requires judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability....

As I understand the Court's opinion, even when it is determined that no emergency exists (or perhaps before that determination is made) the statement would be found admissible as far as the Confrontation Clause is concerned if it is not testimonial.



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