Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause: Continue reading
Tag Archives: testimonial
This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. App. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them. Continue reading →
In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis. Continue reading →
In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions. Continue reading →
The U.S. Supreme Court’s new Crawford confrontation clause rule has had significant impact in child victim prosecutions, largely because of problems with getting children to testify. One frequent Crawford question that arises in these cases is: Are a child’s statements to a social worker testimonial? In a paper here, I explore the testimonial analysis and other Crawford issues. However, on this particular question, there is no North Carolina law on point. Recently a former N.C. judge, now serving on the 4th Circuit, provided some guidance in United States v. DeLeon, __ F.3d ___ (4th Cir. May 15, 2012).
In DeLeon, the defendant was convicted for murdering and assaulting his eight-year-old stepson Jordan. Jordan died while under the defendant’s exclusive care. An autopsy showed that Jordan died from hemorrhaging due to a lacerated liver and that he had bruising on his face, torso, and buttocks. All of the injuries resulted from blunt force. The medical examiner determined that Jordan’s death was a homicide. The government’s theory was that the defendant—who had a history of using corporal punishment—struck Jordan, lacerating his liver.
At trial the government introduced extensive evidence of the defendant’s physical punishment of Jordan. It also presented evidence that about five months before his death, Jordan and his family met with Beth Thomas, a social worker and treatment manager at the Air Force Family Advocacy Program (FAP). A teacher referred Jordan to the FAP after noticing a bruise on his forehead. The FAP is a medical program; one of its purposes is preventing and treating child abuse. Jordan told Thomas that the defendant punished him by spanking him with a hand and belt and forcing him to hold a hammer for several minutes while leaning down. When Thomas asked about the forehead bruise, Jordan said that the defendant punished him by forcing him to lie on the floor while the defendant kneeled and stood on Jordan’s back. After meeting with Jordan and his family, Thomas concluded that only “minor physical” abuse had occurred. She had several subsequent meetings with the family to provide counseling and parenting advice.
After the defendant was convicted, he appealed arguing that his confrontation clause rights were violated when the trial court admitted Jordan’s statements to Thomas. The Fourth Circuit began by noting that whether there is an ongoing emergency is a key factor in the testimonial analysis. Here, it concluded, no emergency existed. It noted that Jordan’s forehead injury occurred several days earlier and there was no basis to conclude that either Thomas or Jordan intended to develop information to respond to an ongoing emergency. The court was careful to note however that it was not suggesting “that ensuring a child’s safety and removal from an abusive home could never present an ongoing emergency.” Instead it found that the facts presented did not support such a finding.
The court next rejected the defendant’s argument that nature of the FAP made Jordan’s statements testimonial. The court noted that although part of the force’s medical command, the FAP uses both medical and security personnel and requires reporting and investigation of allegations of family abuse. In fact, Thomas testified that she occasionally worked with law enforcement. However, the court rejected the argument that the FAP’s reporting requirements and security component were determinative of whether Jordan’s statements were testimonial.
The court then proceeded to an objective analysis of the primary purpose and circumstances of the interview. It noted that Thomas did not have, nor did she tell Jordan that she had, a prosecutorial purpose. Thomas was not employed as a forensic investigator but rather as a treatment manager. Additionally, there was no evidence that Thomas recorded the interview or sought to preserve Jordan’s answers for use at trial. Rather, Thomas used the information to develop a treatment plan and she continued to provide the family with counseling afterwards. These actions are consistent with her testimony that her “primary purpose [was] to provide the treatment and assistance that the family needs.” Acknowledging that an evaluation of the primary purpose of Jordan’s statement was more difficult, the court rejected the notion that a child’s age is determinative. Instead, it held that a child’s age is just one relevant factor. It found it significant that Thomas never told Jordan that his answers would be reported to the authorities, and there was no evidence that Jordan thought that would occur. It concluded:
[W]e are satisfied . . . that the primary purpose . . . [was] not . . . the preservation of evidence for a future criminal prosecution. A review of the circumstances of the meeting reinforces our conclusion. Jordan came to the meeting with his family . . . . Although protocol required that Thomas meet with each family member independently, no effort was made to separate Jordan from [the defendant] in the waiting area. Thomas also did not meet with Jordan in an interrogation room or at a police station but instead spoke with him in her office in a building that housed the FAP, as well as other mental health service providers. In short, the interview between Thomas and Jordan simply does not bear the hallmarks of a testimonial interrogation.
Importantly, the court noted, this was not a case where the social worker was an agent of law enforcement. Thomas did not respond to a law enforcement request and no criminal investigation was ongoing. Also there was no evidence that the discussion was videotaped or otherwise preserved as evidence or that anyone else listened in on or secretly observed the meeting.
For those involved in child abuse prosecutions, DeLeon is significant. It holds that notwithstanding the lack of an ongoing emergency and the fact a social worker may have a reporting requirement, statements made to a social worker still can be non-testimonial. This is big news.
Although the U.S. Supreme Court’s opinion in Michigan v. Bryant may have signaled a loosening of that Court’s interpretation of the key term “testimonial” as used in the Crawford confrontation clause analysis, a recent N.C. Court of Appeals decision suggests that our courts aren’t so inclined. Recall that under Crawford, testimonial statements by people who don’t testify at trial are inadmissible unless the State establishes unavailability and a prior opportunity to cross-examine. Bryant was the Court’s latest decision exploring the meaning of the key term “testimonial.” In a series of blog posts here, here, and here, I analyzed that important case. In a nutshell, Bryant held—over a bitter dissent by Justice Scalia—that a homicide victim’s statements to responding officers were nontestimonial.
The recent court of appeals decision was State v. Glenn, decided April 17, 2012. Here are the facts: Around 3 am, while the victim was looking for a cab, a vehicle pulled up and a male driver asked the victim if she needed a ride. Believing the vehicle to be a cab, the victim got in. She then discovered that the vehicle was not a cab and that the driver was naked from the waist down. When she tried to exit the vehicle, the driver called her a name and grabbed her shirt. Although the victim was able to escape by jumping out of the vehicle, she was dragged by it and sustained injuries. The defendant was charged with kidnapping, assault, and indecent exposure. At trial, the State offered statements by another woman (“the declarant”) who had previously accused the defendant of raping her at knifepoint. In that out-of-state case, the defendant was convicted only of menacing. Because that declarant was deceased at the time of the defendant’s trial in the Glenn case, an officer was allowed to testify, over the defendant’s objection, to the declarant’s statements. The officer testified that when responding to a 911 call at a Waffle House restaurant, he encountered the declarant crying and visibly upset. She told the officer that while she was waiting at a bus stop a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt collar and told her to get in the vehicle. The victim complied because the driver had a knife. The driver then took her to a parking lot where he raped and then released her. The victim then walked to the Waffle House. This proved effective evidence and the defendant was convicted. He then appealed, arguing that the trial court erred by admitting the declarant’s testimonial statement. The court of appeals agreed. The court began by distinguishing the case before it from Bryant in three respects:
- Circumstances surrounding the questioning. The court noted that when the officer approached the declarant, there was no ongoing assault, the declarant had no signs of trauma, and no suspect was present. The court noted that although the officer did not initially know what continuing danger the perpetrator might pose, there was no evidence that he searched the area for the perpetrator or secured the scene. Based on the officer’s questions and the declarant’s refusal of medical care, the court concluded that the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” It concluded: “even if [the officer] believed there was an ongoing emergency when he arrived . . . , [the declarant’s] statement transitioned from a nontestimonial statement into a testimonial statement after [the officer] determined that no ongoing emergency existed.”
- Ongoing danger. The court found no indication that the defendant would return to the area to harm the declarant. Additionally, it noted, unlike the Bryant defendant who had a gun, here the perpetrator possessed only a knife. On this basis, the court found that there was no threat to the officer. As to a threat to the public, it concluded that the defendant’s motive was sexual and “[t]his sexual motive, unlike the unknown motive of the shooter in Bryant, did not suggest an immediate threat to the public at large.”
- Circumstances of the encounter. Next, the court turned to the circumstances of the encounter, noting that because only one officer was involved in the questioning the circumstances “were more like an interview, and unlike the circumstances in Bryant where several officers asked questions.” The officer asked what happened and the declarant narrated the relevant information. The court concluded that because the declarant declined medical attention, the primary purpose of her statement could not have been to obtain such help. It stated: “[the declarant] seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In this regard the court noted that the declarant said that she wanted to prosecute the suspect. Turing to the declarant’s responses, the court quickly concluded that “[t]here was no evidence presented that the primary purpose of her statement was for any other reason than to apprehend defendant.”
Having distinguished Bryant, the court found the case before it more like the N.C. Supreme Court’s pre-Bryant decision in State v. Lewis (holding that a victim’s statements to a first-responding officer were testimonial). Finally, the court held that the trial court’s error in admitting the testimonial statement was not harmless beyond a reasonable doubt and it ordered a new trial.
What’s most interesting to me about Glenn is that I view Bryant as a slight “loosening” of the standard for testimonial evidence. Recall that in Bryant, Justice Scalia—the godfather of Crawford—ended up in the dissent, bitterly arguing that the victim’s statements at issue were testimonial. But the majority disagreed, holding that they were nontestimonial and not covered by Crawford. And in fact some of the very same conduct that the Glenn court pointed to as evidence of a testimonial statement did not so persuade the Bryant Court. For example, in Bryant, the fact that the officers failed to search the scene for the perpetrator did not prevent the Court from concluding that the victim’s statements were nontestimonial. However, by relying on Lewis–a pre-Bryant decision—without qualification the Glenn court implicitly rejected the notion that Bryant represents an easing of the testimonial analysis.
What’s that I hear? It might be a collective prosecutorial groan.
“It’s the economy, stupid,” was a catch phrase in Bill Clinton’s successful 1992 presidential campaign. I have my own catch phrase, but it’s for trying drug cases. Here it is:
|“It’s testimonial, stupid.”|
Nearly everyone is having a difficult adjustment to the new confrontation clause regime after the U.S. Supreme Court’s Crawford decision and its barrage of opinions since that case was decided. And even after all of this case law, there are still a lot of uncertainties. But here’s one thing we know for sure: forensic reports identifying a substance as a controlled substance are testimonial. For emphasis, let me repeat that: forensic reports identifying a substance as a controlled substance are testimonial. That was the clear holding of the U.S. Supreme Court’s bombshell of an opinion in Melendez-Diaz. Why is that significant? It’s significant because only testimonial statements are subject to the Crawford rule. And under the Crawford rule testimonial hearsay statements may not be admitted at trial unless the State shows unavailability of the declarant and a prior opportunity to cross-examine.
The N.C. Court of Appeals’ recent decision in State v. Burrow, highlights the trouble people are having with the new rules. Burrow was drug trafficking case involving oxycodone. The case was tried in 2011, long after Crawford and Melendez-Diaz were decided. In order to prove that the substance at issue was in fact oxycodone, the State offered a SBI forensic report so identifying the substance. But neither the preparer of the report nor a substitute analyst testified at trial. As it became clear on appeal, this was a mistake. The report is testimonial and thus subject to the Crawford rule. In Burrow, there was no evidence that the SBI analyst was unavailable or that there was a prior opportunity for cross-examination. Not surprisingly, the court of appeals held that under these circumstances admission of the report violated the defendant’s confrontation clause rights.
To be sure, a lot of issues remain open about application of the Crawford rule. One such issue is whether a substitute analyst who testifies to an independent opinion can rely on a report prepared by a non-testifying witness. In North Carolina, the answer to that question is yes. But as I discussed in a post here, the U.S. Supreme Court will decide that issue this term.
I’ve read that in Clinton’s 1992 campaign, the slogan “It’s the economy, stupid” was posted in his campaign offices and was often repeated to keep campaign workers on message. I’m not sure my slogan will make it into Wikipedia, but remembering it will help you in your drug cases. So repeat the mantra: “It’s testimonial, stupid.”
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.
In my last post, I looked at the majority opinion in Bryant. Today, I’ll discuss the other opinions, focusing on Scalia’s dissent. In my final post on this issue, I’ll wrap up with a discussion of what the case means for evolving confrontation clause law.
As noted in my last post, Justice Sotomayor wrote the majority opinion, holding that the victim’s statements to the responding officers were non-testimonial. Justice Kagan took no part in the consideration or decision of the case. Justice Thomas concurred, agreeing that the statements were non-testimonial but arriving at that conclusion because he believed they lacked sufficient formality, not because there was an ongoing emergency. Thomas, as he has done before, criticized the majority’s primary purpose test as creating uncertainty for the police and for the lower courts. Opinion of Thomas, J., concurring at 1. In his opinion, the majority’s test is an “exercise in fiction,” that “yields no predictable results.” Id. According to Thomas, a better approach is to consider the extent to which the interrogation resembles those historical practices that the confrontation clause was meant to address. Id. at 1-2. In his view, assessing the formality of the statement does just that.
Scalia bitterly dissented in Bryant. The first paragraph to his dissent sets his tone:
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.
Op. of Scalia, J., dissenting at 1.
As a preliminary matter, Scalia disagreed with the majority’s focus on the intent of the declarant and the interrogator. According to Scalia, when assessing the primary purpose of the interrogation, only the declarant’s intent matters. Id. at 2. Looking at Covington’s purpose, he found the case “absurdly easy.” Id. at 5. Scalia noted that upon arriving at the scene, five different officers questioned Covington about the shooting, with each asking: what happened, who did it, and where did it occur. They also asked follow-up questions about the perpetrator’s description and the exact address and description of the home where the shooting occurred. From Covington’s perspective, Scalia argued, his statements had little value except to ensure Bryant’s arrest and prosecution. When Covington made his statements, he knew the emergency had ended when he fled Bryant’s house and that it was entirely “beyond imagination,” id. at 6, that Bryant would again open fire while Covington was surrounded by five armed officers. Scalia believed that rather than suggesting an ongoing emergency, Covington’s medical situation actually reinforced the testimonial character of his statements. According to Scalia, Covington understood the police were focused on investigating a past crime, not his medical needs. The officers did not ask him how he was doing or meaningfully attempt to assess his wounds or administer aid. Instead, they asked questions having no relevance to his dire situation. Underscoring that Covington understood the officers’ investigative role, he interrupted their questions to ask when medical help would arrive. Or, as Scalia out it, “When, in other words, would the focus shift to his medical needs rather than Bryant’s crime?” Id. at 7. Scalia concluded: “Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.” Id. at 8.
Scalia further criticized the majority opinion, arguing that even if the officers’ perspectives were relevant, the primary purpose was still clear: to establish past facts relevant to a prosecution. He noted that none of the officers’ actions suggested that they perceived an imminent threat. They did not draw their weapons; they did not immediately search the gas station for potential shooters; and none asked the question that would have been critical had they truly feared for their safety: Where is the shooter? In Scalia’s view, the majority opinion’s application of the law to the facts “creates an expansive exception to the Confrontation Clause for violent crimes.” Id. at 10.
Finding the majority’s decision to be a “gross distortion of the facts,” Scalia further criticized it as a “gross distortion of the law.” Id. at 12. In his view, the majority opinion, improperly brought the reliability standard back into confrontation clause analysis. He further criticized the majority opinion for “reced[ing] from Crawford” in another way: by requiring judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability. Id. at 15. In Scalia’s view, such rules do violence to the Framers’ design. Id. at 16.
Justice Ginsburg also dissented, agreeing with Scalia that Covington’s statements were testimonial and that it was the declarant’s intent that matters. Op. of Ginsburg, J., dissenting at 1.
In my next post, I’ll explore what Byrant means for confrontation clause analysis.
On February 28, 2011, the United States Supreme Court decided Michigan v. Bryant, its latest Crawford case. In an opinion written by Justice Sotomayor, the Court held that a homicide victim’s statements to responding officers were non-testimonial. In this post, I will explore the majority opinion. In my next post, I will summarize the other opinions, focusing on Scalia’s dissent. In my final post, I’ll look at Bryant’s implications for future cases.
The facts of Bryant are as follows. At around 3:25 a.m., Detroit officers responded to a dispatch indicating that a man had been shot. They arrived at the scene and found Covington lying on the ground next to his car at a gas station, with a gunshot wound to his abdomen. He appeared to be in great pain, and spoke with difficulty. The police asked what happened, who shot him, and where the shooting occurred. Covington said that “Rick” shot him at around 3 a.m. He explained that he spoke with Bryant at Bryant’s house and when he turned to leave, he was shot. He then drove to the gas station. This conversation lasted about 5-10 minutes, ending when emergency medical services arrived. Covington died within hours. After speaking with Covington, the police called for backup and went to Bryant’s house. Although Bryant was not there, they found blood and a bullet on the back porch, an apparent bullet hole in the back door, and Covington’s wallet and identification outside the house.
At Bryant’s pre-Crawford murder trial, the State introduced Covington’s statements to the officers as excited utterances (no foundation was established for a dying declaration). Bryant was convicted and the case went up to the Michigan Supreme Court. That court reversed the conviction, holding that Covington’s statements were testimonial and their admission violated Crawford. The United States Supreme Court granted certiorari.
To put the legal issue in context, recall that Crawford v. Washington, 541 U. S. 36 (2004), held that testimonial statements by declarants who do not testify at trial may not be admitted unless the State establishes unavailability and a prior opportunity to cross-examine. In the Court’s later decision in Davis v. Washington, and Hammon v. Indiana, 547 U. S. 813 (2006) (“Davis”), it refined the meaning of the term testimonial, as it applies to police interrogations. Davis held:
(1) Statements are non-testimonial 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; and
(2) Statements 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.
Noting that both Davis and Hammon were domestic violence cases, the Bryant Court recognized that case at hand required it to provide additional clarification on the ongoing emergency prong of the Davis primary purpose analysis.
The Court held that when determining the testimonial nature of a statement, a court must assess the primary purpose of the interrogation by objectively evaluating the statements and actions of the declarant and the interrogator, in light of the circumstances of the interrogation. The relevant circumstances include objective facts, such as where the interrogation occurred. However, the existence of an emergency or the parties’ perception that one is ongoing, “is among the most important circumstances . . . in determining whether an interrogation is testimonial.” Slip op. at 14. The Court explained that “statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.” Id. at 23-24. It also clarified that the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.
Turing to case at hand, the Court noted that its analysis was complicated by the fact that because the case was tried pre-Crawford, there was no record of the primary purpose of the interrogation. Nevertheless, the Court examined the circumstances of the interrogation and concluded: “At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington.” Id. at 27. On these facts, the Court determined that “[t]he potential scope of the dispute and therefore the emergency . . . stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public.” Id. Significant to its analysis was the fact that the assailant used a gun.
Having determined that an ongoing emergency existed, the Court considered the statements and actions of Covington and the police. Based on Covington’s condition and statements, the Court could not conclude that a person in his situation would have had a primary purpose of establishing or proving past events relevant to a criminal prosecution. As for the police, they responded to a call about a shooting without knowing why, where, or when the shooting had occurred, the location of the shooter, or anything else about the crime. The questions they asked were necessary to assess the situation and the threat to them, the victim, and the public. In other words, the Court determined, they solicited information to meet an ongoing emergency. Finally, the court evaluated the formality of the statements, concluding that the interrogation was more similar to the 911 call in Davis than the stationhouse interview in Crawford. Thus, it held: because the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the primary purpose of the interrogation was to enable the police assistance to meet an ongoing emergency, Covington’s statements were non-testimonial.
Having summarized the majority opinion, my next post will explore the other opinions.