In my first two posts, I explored the Bryant opinions. Today I’ll discuss what the case means for confrontation clause analysis going forward.
1. Although Crawford is intact, the Court may be creeping back towards the old Ohio v. Roberts reliability test. Slip op. at 14; id. at 15 n.9; Op. of Scalia, J. dissenting at 12. In fact, in Scalia’s view, Bryant “recedes from Crawford.” Op. of Scalia, J, dissenting at 15. This is good news for the State and bad news for defendants.
2. The two-pronged Davis inquiry for determining the testimonial nature of statements made during police interrogations also remains intact, but with a modification expanding the scope of potentially non-testimonial statements. The Bryant Court stated: “[T]here may be other circumstances, aside from ongoing emergency, when a statement is not procured with a primary purposes of creating an out-of-court substitute for trial testimony . . . . Where no such primary purpose exists, [the statements are non-testimonial].” Slip op. at 11-12. After Davis we wondered how to categorize statements for which the primary purpose was something other than meeting an emergency or establishing past facts. Bryant suggests that if the primary purpose is anything other than establishing past facts for a prosecution, the statement is non-testimonial. Again, good news for the State; bad news for defendants.
3. The Court continues to use the term police interrogation in its colloquial sense. Slip op. at 8 n.2.
4. Bryant emphasizes that the ultimate question when determining whether a statement is non-testimonial or not is: What was the primary purpose of the interrogation? In assessing the primary purpose of the statement, the following principles apply.
- The test is an objective one. Slip op. at 23.
- Whether an ongoing emergency exists is one of the most important factors to consider. Id.
- The statements and actions of both the interrogators and the declarant are relevant. Id. at 20.
- The relative formality or informality of the statement also is relevant. Id. at 19-20.
5. The “ongoing emergency” determination remains a “highly context-dependent inquiry” Id. at 16.
6. The “ongoing emergency” net is broader than some had realized. Id. at 16. In Scalia’ view, it is so broad that it carves out an “expansive” confrontation clause exception for violent crime. Op. of Scalia, J., dissenting at 10.
7. In a paper published here, I suggested factors relevant to the determination of whether or not an ongoing emergency existed. Specifically, I suggested that the following factors supported the conclusion that an ongoing emergency existed:
- The perpetrator remains at the scene and is not in law enforcement custody.
- The perpetrator is at large and presents a present or continuing threat.
- Physical violence is occurring.
- The location is disorderly.
- The location is unsecure.
- Medical attention is needed or the need for it has not been determined.
- The victim or others are in danger.
- The questioning occurs close in time to the event.
- The victim or others call for assistance.
- The victim or others are agitated.
- No officers are at the scene.
- The declarant is speaking about the events as they are occurring.
I suggested that the following factors indicate that an emergency has ended or did not exist:
- The perpetrator has fled and is unlikely to return.
- The perpetrator is in law enforcement custody.
- No physical violence is occurring.
- The location is not disorderly.
- The location is secure.
- No medical attention is needed.
- The victim and others are safe.
- There is a significant lapse of time between the event and the questioning.
- No call for assistance is made.
- The victim or others are calm.
- Officers are at the scene.
- The relevant event is complete.
Bryant validates the relevancy of many of these factors and suggests that the following questions also are relevant:
- What type of weapon was involved? Slip op at 17 & 27. Bryant noted that when the weapon consists of the defendant’s fists, the threat may be neutralized – and the emergency ended – simply by removing the defendant from the room. However, when the weapon is a gun, this may not suffice. Id. at 17. Also, when a gun is involved, the nature of the weapon may extend the emergency beyond the initial violent act (the shooting). Id. at 27.
- Had the threat been neutralized? If yes, this suggest that the emergency has ended. Slip op. at 16.
- Is the perpetrator known? If not, this may suggest that an emergency is continuing. Id.
- Did the dispute occur in a public or private location? Slip op at 12. Bryant suggests that when a dispute occurs in public, the emergency may be extended by creating a danger to responding officers and the public. By contrast, a dispute that occurs in private—such as in a home—limits the potential danger to others, and thus the scope of the emergency.
8. The Court continues to indicate that statements can begin as non-testimonial but become testimonial. Slip op. at 18.
9. Because there was no dispute in Bryant about Covington’s unavailability or whether there was a prior opportunity to cross-examine, Bryant doesn’t add to our knowledge on those issues.
10. Because Bryant involved statements to the police, the Court did not address whether and when statements made to non-police actors are testimonial. Slip op. at 10 n.3; see also Op. of Scalia, J., dissenting at 3 n.1.
11. Because the issue was not before the Court, it did not decide whether dying declarations are excepted from Crawford. Slip op. at 4 n.1; Op. of Ginsburg, J., dissenting at 1-2.
12. The line-up of Justices on confrontation clause analysis has shifted significantly, with Scalia moving from opinion author to dissenter. Given that the important Bullcoming substitute analyst case (discussed here) is still pending before the Court, we are certain to get some interesting opinions.
13. Finally, Bryant twice mentioned due process as potentially limiting admissibility. Slip op. at 4 & 24 n.13. Thus, if Crawford falls, this may be the next battlefield over admission of hearsay statements.