Friday, September 9, 2011
In my last entry, Post-Bryant Case Law Confirms Scalia’s Fears, I discussed the ease in which the primary purpose test can be manipulated to reach desired outcomes. This post addresses the test’s inability to determine the testimonial or non-testimonial nature of interrogations involving multiple concurrent purposes.
The inability of the primary purpose test to account for multiple concurrent purposes was one source of contention in Bryant. In that case, the majority rightly noted that police and victims of violent crime often act with more than one purpose. See Michigan v. Bryant, 131 S.Ct. 1143, 1161 (2011). Moreover, it would be rare for a person involved in such a volatile situation to announce his intent before speaking. Thus, a test that asks a court to divine the “primary purpose” of a hypothetical similarly-situated individual from among potentially several unstated purposes is nothing but “an exercise in fiction.” Id. at 1167 (Thomas, J., concurring).
Despite the difficulties inherent in determining an individual’s “primary purpose,” the Bryant majority confidently concluded that the responding officers’ sole purpose was to assess the alleged “ongoing emergency” that existed at the time, despite no direct evidence of that intent. See id. at 1165-66. But this is just part of the analysis, as Bryant also requires courts to consider the declarant’s purpose, which promises to compound the analytical difficulty. See id. at 1170 (Scalia, J., dissenting) (“Now courts will have to sort through two sets of [potentially] mixed motives to determine the primary purpose of an interrogation;” moreover, “[Bryant] creates a mixed-motive problem . . . where the police and the declarant each have one motive, but those motives conflict.”).
By analogy, courts considering forfeiture-by-wrongdoing arguments have recognized that people often commit acts with multiple motives. For example, in United States v. Martinez, the United States Court of Appeal for the District of Columbia rejected the defendant’s claim that a would-be witness was killed in retaliation for his involvement with the police, rather than to prevent his future trial testimony. 476 F.3d 961 (D.C. Cir. 2007). According to the court, defendant’s “argument is based on a false either-or dichotomy,” as “intending both to exact revenge and to prevent the informant from disclosing further information and testifying” are purposes that “often go hand-in-glove.” Id. at 966. See also State v. Alvarez-Lopez, 98 P.3d 699, 704-05 (N.M. 2004) (“The State ‘need not . . . show that [defendant’s] sole motivation was to procure the declarant’s absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) (same); Vasquez v. People, 173 P.3d 1099, 1104-05 (Colo. 2007) (en banc) (same).
As in the forfeiture-by-wrongdoing cases, lower courts applying the primary purpose test have recognized the possibility of multiple concurrent purposes. An Oregon case, State v. S.P., 215 P.3d 847 (Ore. 2009) (en banc), is particularly instructive.
In S.P., the Oregon Supreme Court examined hearsay statements of a three year-old sexual abuse victim, N, made to staff members at a local “Child Abuse and Response Service” (“CARES”). The CARES evaluation team consisted of a pediatrician, a social worker, two Department of Human Services workers, and a Sheriff’s Deputy. As the Deputy observed the evaluation through a one-way mirror, a social worker elicited information from N that implicated defendant Youth in various crimes.
At Youth’s trial, the juvenile court ruled that most of N’s statements were non-testimonial, thus admissible in the absence of confrontation. Id. at 850. The Court of Appeals reversed, and declared N’s statements testimonial. State v. S.P., 178 P.3d 318 (Ore. Ct. App. 2008). According to the intermediate appeals court, the CARES interview served two “primary” purposes: to obtain information for a medical diagnosis and to preserve evidence for prosecution. Id. at 329-330.
Like the lower court, the en banc Oregon Supreme Court viewed the case as one involving the “concurrent and coequal” primary purposes of medical diagnosis and preservation of criminal evidence. S.P., 215 P.3d at 864. As a result, the court resolved the case by examining “whether the declarant’s statements were the equivalent of ‘testimony.’” Id. Examining “all the circumstances,” including “the knowledge and intentions of all persons involved in the interrogation,” id. at 865 (a standard arguably consistent with Bryant), the court reasoned that “N made his statements in a formal setting, in response to structured questions about past events with potential serious consequences for [Y]outh.” Id. at 864. According to the court, “witnesses do go into court to describe past sexual misconduct, and that is exactly what N did at CARES.” Id. Thus, “[f]rom a functional standpoint, N’s examination was similar to the ex parte examinations condemned in Crawford,” in that “N acted as a witness; he bore testimony against [Y]outh.” Id.
Cases involving multiple concurrent purposes raise several important and unresolved issues, including (1) whether more than one “primary” purpose is possible under the Bryant test; (2) if not, how to determine whether a forensic or medical diagnosis purpose is the “primary” one; and (3) more broadly, how to resolve interrogations conducted by non-police actors. See Bryant, 131 S.Ct. at 1155 n.3 (“Davis explicitly reserved the question of ‘whether and when statements made to someone other than law enforcement personnel are ‘testimonial’ We have no need to decide that question in this case either . . . .”). These are each significant issues that are already creating splits among the courts.
Marc C. McAllister