A twist to the Constitution's confrontation rules

The United States Supreme Court issued a ruling allowing into evidence the statement of a man made a few hours before he died despite his unavailability for the murder trial or preliminary examination of the defendant ultimately convicted of his murder. The accused had no formal prior opportunity to examine this man under oath. The case was not a dying declaration hearsay examination since the prosecutor failed to preserve that justification in the courts below.

Instead the issue before the court is whether admission, over objection, at trial was a violation of the accused's Confrontation Clause rights. Ultimately, the court re-entrenched the "primary purpose" test holding that the test requires objective analysis of the intentions of both the declarant and the police officer eliciting those statements and the existence of an on-going emergency:

"As we suggested in Davis, when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the "primary purpose of the interrogation" by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. FN13 As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public," Bryant at __.

The Court held that "all relevant circumstances" should be evaluated, "including the statements and actions of the declarant and the interrogators," Bryant at __. The Court's opinion may create potential for abuse by allowing the admission of out-of-court statements using a "context-based" objective analysis of the primary purposes of the declarant and the interrogator.

In dissent, Justice Scalia, a champion of the 6th Amendment in several recent decisions, stated:

"Crawford and Davis did not address whose perspective matters-the declarant's, the interrogator's, or both-when assessing "the primary purpose of [an] interrogation." In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: 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;*1169 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. FN1 See Friedman, Grappling with the Meaning of "Testimonial," 71 Brooklyn L.Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner from a statement to the police. See Crawford, supra, at 51, 124 S.Ct. 1354. The hidden purpose of an interrogator cannot substitute for the declarant's intentional solemnity or his understanding of how his words may be used," Bryant at __ (Scalia dissenting).

He then went on to conclude:

"The Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court's imagination, the emergency persisted for confrontation purposes at least until the police learned his "motive for and location after the shooting." Ante, at 1164.

It may have persisted in this case until the police "secured the scene of the shooting" two-and-a-half hours later. Ante, at 1164 - 1165. (The relevance of securing the scene is unclear so long as the killer is still at large-especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency.

Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a "potential threat to ... the public" persisted through those first few hours, ante, at 1156 (and if the claim is plausible here it is always plausible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers' recollection at trial of the witnesses' accusations."

"Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed.1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation-short on the facts, and short on the law."

"For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all," Bryant at __ (Scalia dissenting)."

Justice Scalia is concerned with the majority reinventing the "reliability" test of Ohio v Roberts. His words in dissent are powerful. The concern is that the "context" analysis will lead to disingenuous testimony from police officers about what was the purpose of the interrogation of a potential witness or victim at a crime scene.

If Justice Scalia's prediction is accurate, an exception for violent crimes to the protections of the constitution will create a culture in which this type of abuse can happen and happen frequently.

No matter how heinous the alleged criminal act, when the system fails to ensure that a heinous act is punished only after the proof of the act and actor are established by following the constitution, what is taken away from one is indeed taken away from us all.

Michael J. Nichols practices exclusively on complex OWI/OWID cases and other select criminal and litigation matters. He is the author of the Michigan OWI Handbook Published by West, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association's Criminal Law Sections. Justin McShane assisted with this article.

Published: Mon, Apr 18, 2011