EvidenceProf Blog

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

Monday, February 28, 2011

Michigan v. Bryant, Part 2

As noted in my prior post, the Supreme Court decided Michigan v. Bryant today. You can review the full facts of the case in the Court's opinion, but the basics are that police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial. After Bryant was convicted, he appealed, claiming that the introduction of Covington's statements violated the Confrontation Clause, and the Supreme Court of Michigan agreed with him.

As I have previously noted,

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

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. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether Covington's statements were testimonial or nontestimonial under this "primary" purpose test. Finding that they were nontestimonial, the Court reversed the opinion of the Supreme Court of Michigan and found no Confrontation Clause violation. Why, and what does the Court's opinion tell us about the Confrontation Clause going forward? Below is part one of my analysis. I wil post part two this afternoon after teaching a morning class.

Objective, Not Subjective

Well, first, one question that divided the courts in the wake of Crawford v. Washington was whether courts should apply a subjective or objective test in determining whether statements are testimonial. In other words, should courts consider whether a defendant and/or police officer subjectively believed that their encounter was producing testimonial statements, or should courts merely conduct an objective analysis of the circumstances of an encounter and the statements and actions of the parties to it? The Supreme Court in Michigan v. Bryant adopted the objective approach, finding that

it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs— e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.

The Court went on to note that

This approach is consistent with our rejection of subjective inquiries in other areas of criminal law. See, e.g., Whren v. United States,  517 U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness subjectively in light of the officers’ actual motivations); New York v. Quarles,  467 U. S. 649, 655–656, and n. 6 (1984) (holding that an officer’s subjective motivation is irrelevant to determining the applicability of the public safety exception to Miranda v. Arizona, 384 U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980) (holding that a police officer’s subjective intent to obtain incriminatory statements is not relevant to determining whether an interrogation has occurred).

A Focus Upon Both Declarant & Interrogator

Crawford v. Washington also divided courts on the issue of whether the statements and actions of only the interrogator, only the declarant, or both the interrogator and declarant are relevant in determining whether statements are testimonial. The Supreme Court in Michigan v. Bryant adopted the latter approach, finding that "the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." According to the Court,

In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers. To give an extreme example, if the police say to a victim, “Tell us who did this to you so that we can arrest and prosecute them,” the victim’s response that “Rick did it,” appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers.

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....

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution. Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim’s physical state.



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