Monday, September 5, 2011
The Sixth Amendment’s Confrontation Clause has undergone significant change in the past seven years, particularly as it relates to hearsay statements made in response to police interrogation or its functional equivalent. Prior to Crawford v. Washington, 541 U.S. 36 (2004), the rule of Ohio v. Roberts allowed such statements to be admitted upon a mere showing of reliability. The amorphous nature of the Roberts rule eventually led to its demise; under Roberts, courts frequently attached different meanings to the same reliability factor, and often reached opposite outcomes on virtually identical facts.
In overruling Roberts, Crawford’s stated goals were to curtail judicial discretion and to prevent testimonial evidence from reaching the factfinder without the benefit of adversarial testing. See Crawford, 541 U.S. at 67-68 & 54. Just seven years later, the Court’s more recent rulings in this area, most notably Michigan v. Bryant, 131 S.Ct. 1143 (2011), have revived those very deficiencies. Reminiscent of Roberts, Bryant notes more than ten factors to distinguish “testimonial” from “non-testimonial” statements. Bryant further instructs courts to consider “all relevant information” and to decide each case “in context,” a classic totality-of-circumstances approach bearing striking similarities to the Roberts framework.
Justice Scalia, the author of Crawford, was one of only two dissenters in Bryant. Justice Scalia’s dissent bemoaned the opinion’s overall influence on Confrontation Clause jurisprudence, and particularly noted the ease in which the majority’s standards can be manipulated to reach desired outcomes. See Bryant, 131 S.Ct. at 1170 (Scalia, J., dissenting).
Bryant was decided on February 28, 2011, so there is now more than six months of lower court case law applying Bryant. A comparison of recent cases confirms Justice Scalia’s fears. For example, post-Bryant cases have drawn opposite inferences from the same Bryant factor: the declarant’s dire medical condition. In addition, one post-Bryant case, People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. June 28, 2011), distinguished Bryant based upon the precise wording of the questions asked, yet the two factual scenarios were nearly identical in all other respects.
In both Bryant and Clay, police responded to the call of a man having recently been shot. In both cases, police discovered the man in dire medical condition, mortally wounded and lying on the ground. In both cases, the shooting victim died shortly after speaking with the police. Yet, the Clay court distinguished Bryant based upon the nature of the questions asked, ignoring most other factors set forth in Bryant. For example, the Clay court downplayed the informality of the encounter by relegating it to a footnote, a factor the Bryant Court found significant. See id. at *10 n.1. In its attempt to divine the primary purpose of the interrogation, the Clay court reasoned that the officer’s inquiry, “Who shot you? I don’t think you are going to make it. Who shot you?” was more akin to “Tell us who did this to you so that we can arrest and prosecute them,” the testimonial example noted in Bryant, than to a general inquiry beginning with “what happened?” Accordingly, the Clay victim’s response was deemed “purely accusatory,” hence testimonial. Id. at *7.
Clay illustrates how slight changes in an interrogator’s wording can change the Sixth Amendment outcome. Presumably, had the officer simply asked the declarant “a general battery of questions” (even including questions aimed at discovering the identity of the assailant, as in Bryant), the declarant’s response would become magically non-testimonial. Uttering questions such as “what happened?” rather than “who shot you?,” or posing questions about the identity of one’s assailant within “a general battery of questions,” is an incredibly easy distinction for interrogating officers to manipulate. It also makes the Constitution turn on trivialities. Notably, the Clay court had the benefit of a dying declarations argument that had been preserved on appeal. Thus, the Clay court, unlike the Bryant Court, did not need to stretch the concept of “ongoing emergency” to reach the same overall outcome.
Other courts analyzing interrogations nearly identical to Clay have reached the opposite outcome. For example, in State v. Calhoun, 657 S.E.2d 424 (N.C. Ct. App. 2008), a pre-Bryant case, the court deemed non-testimonial the statements of a shooting victim identifying his assailant. As in Clay, the declarant in Calhoun, who was found motionless after having been shot, was asked just one question: who shot him. In response, the declarant stated it was “Chico” and “Worm.” The victim was then asked to squeeze the interrogator’s hand to confirm that “Chico” and “Worm” were the shooters, and the declarant did so. This was the extent of the interrogation. However, in contrast to Clay, the court deemed the declarant’s statements non-testimonial. The Clay court would presumably disagree, as the officer’s sole question in Clay, “who shot you,” was nearly identical to the sole question posed in Calhoun.
Another recent case, Graure v. United States, 18 A.3d 743 (D.C. Ct. App. 2011), further illustrates the malleability of the Bryant test. In that case, defendant Vasile Graure was prosecuted for having set fire to a strip club. Club employee Djordjevic, the eventual out-of-court declarant, confronted Graure as he entered the club carrying gasoline and a lighter. As the two struggled, Graure was able to pour and ignite the gasoline, and Djordjevic was “completely covered in flames.”
Minutes later, club manager Kathleen Lazorchack saw Djordjevic emerge from the building. According to Lazorchack, Djordjevic was “[c]harred from  head to toe.” Indicating a concern for his own welfare, rather than some hypothetical desire to address an ongoing emergency, Djordjevic told Lazorchack not to touch him. At this point, Lazorchack asked, “how did this happen?” Id. at 752.
Djordjevic responded, “I saw that man coming back with a can and I tried to stop him.” Another club employee, Talebnejad, then asked Djordjevic, “what happened?” Djordjevic explained that “the guy” came back to the club and tried to burn it, and that Djordjevic had tried to stop him. Id. at 751-52. Witnesses later described Djordjevic as “very frantic” and “in shock.” Id. at 755.
Djordjevic was still in the hospital at the time of Graure’s trial, and the trial court introduced the statements Djordjevic made after exiting the club. The United States Court of Appeals for the District of Columbia affirmed. Id. at 755. After noting three Bryant factors – the weapon employed, the victim’s medical condition, and the informality of the situation – the court stated that “all of the factors . . . identified in Bryant support a conclusion that [the] statements were not testimonial.” Id. at 757 (emphasis added). According to the court, “[w]hat had injured the visibly burned Djordjevic was fire, a weapon that could have continued to pose a threat to those in or near the club.” Moreover, “the situation did not involve formal or structured questioning.” Finally, “Djordjevic’s medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’” Id. at 757-58.
While Graure’s ruling is plausible, the declarant, Djordjevic, likely had no purpose whatsoever in answering the simple questions posed by his superiors. Djordjevic was “in shock” at the time and seemed to be focused on caring for his wounds rather than the danger posed by the defendant. Indeed, it seems that Djordjevic, who acted bravely in attempting to stop the defendant from entering the club, had by this time shifted his focus away from the defendant and toward his own wounds, as would be expected under these circumstances.
One could also question whether Djordjevic’s interrogator’s had any purpose other than to simply understand what had happened. Talebnejad had gone home to his apartment about ten minutes after Graure was kicked out of the club, and returned to the club after he received a call about the fire. Id. at 752 n.7. Moreover, Talebnejad testified that he asked Djordjevic “what happened” simply because he “just wanted to know what happened.” Id. at 758 n.18. It would be natural for Talebnejad, a manager at the club who did not witness the event, to simply wish to know what had occurred. Like a commuter who drives past the scene of an accident, the simple desire to understand what had caused the accident is neither a purpose directed toward future prosecution nor one intended to address an “ongoing emergency.”
Bryant, Clay, and Graure each involve statements made by a crime victim within minutes of the criminal event. The victim’s statements in each case were made in direct response to preliminary investigative questions. In all three cases, the court speculated as to the likely purpose of a reasonable victim in the circumstances of the actual victim. In all three cases, it is possible that a similarly-situated declarant would envision prosecution, would be motivated by ending the threat from the assailant, would have multiple motivations, or even no motivation at all. Various scenarios are also possible for the interrogators in each case.
In seeking to uncover which of the above purposes was the primary one, the Bryant Court believed “[t]he questions the [officers] asked – ‘what had happened, who had shot him, and where the shooting occurred,’ – were the exact type of questions necessary to allow the police to ‘assess the [emergency] situation.” Id. at 1165-66. Clay distinguished Bryant despite strong similarities in the overall factual scenarios, reasoning that the officer’s “evident reason” for asking “who shot you” was to give the declarant “his final opportunity to bear witness against his assailants.” 2011 WL 2570701 at *7. Faced with the same type of generalized questions deemed significant in Bryant and highlighted in Clay, the Graure court could have invoked this factor to support its ruling, but it did not. Rather, the Graure court emphasized only three of the Bryant factors, ignoring several others, yet stating that “all of the factors . . . identified in Bryant support a conclusion that Djordjevic’s statements were not testimonial.” Graure, 18 A.3d at 757. This analytical method, where any and all factors might be relevant in any given case, permits a court to reach whatever result it desires.
Judicial manipulation of the Bryant framework is further illustrated by comparing how Bryant, Clay, and Graure treated the dire medical condition of the declarant. On this factor, the Bryant majority believed that “a person in Covington’s situation would [not] have had a ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution.’” Bryant, 131 S.Ct. at 1165. The Graure court agreed, reasoning that the declarant’s “medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’” Graure, 18 A.3d at 758. The Clay court drew the opposite inference from nearly identical facts. According to Clay, when a declarant’s medical condition is grave, the declarant might instead believe that the situation presents “his final opportunity to bear witness against his assailants.” Clay, 2011 WL 2570701 at *7. Justice Scalia advanced a similar argument in his Bryant dissent, see Bryant, 131 S.Ct. at 1171 (Scalia, J., dissenting). Either inference seems reasonable.
In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator. I have written an article proposing a bright-line rule to replace Bryant’s factors test. You can download the full article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606
Marc C. McAllister
Associate Professor of Law, Florida Coastal School of Law