Supreme Court (Again) Revisits the Confrontation Clause

The Supreme Court case I am following most closely this year is Michigan v. Bryant. This issue in this case is whether the Confrontation Clause in the Sixth Amendment prohibits the prosecution from using a statement by a shooting victim describing the events, including the identity of the shooter, to the police.

This is another follow-up case to Crawford v. Washington. In Crawford the Court held that the Confrontation Clause prohibits prosecutors from using out of court "testimonial" statements, unless the speaker is available for cross-examination.

The problem with Crawford is that the Court did not provide a good definition of "testimonial." I am interested because I helped author an amicus curiae on behalf of the National District Attorneys Association in Davis v. Washington. In Davis, the Supreme Court held that responses to questions with the primary purpose of enabling police to provide assistance during an ongoing emergency are not testimonial and, therefore, may be used by prosecutors even if the speaker is not available to testify during the trial. The Davis case involved a 911 operator asking a domestic violence victim questions about an assault by her boyfriend. The boyfriend had just fled the scene. The Court in Davis concluded that 911 calls are primarily intended to allow the police to obtain information about events as they are occurring or recently occurred, so that they can respond appropriately to protect life and property. In other words, the confrontation clause is not implicated when the police ask questions designed to resolve an emergency instead of learn what had happened in the past.

The Bryant case involves the response of the Detroit police to a shooting at a gas station. When the police arrived, the victim was bleeding from a gunshot wound to the abdomen. He told the officers that he had been shot by a man named "Rick." He also provided a physical description of the shooter and the location of Rick's home, where the shooting had occurred. The victim died, but the police were able to introduce these statements, along with other corroborating evidence, to obtain a second-degree murder conviction.

I believe that the Court should find that use of the statements did not violate the Confrontation Clause. As in Davis, the statements in this case were intended to enable the police to respond to an ongoing emergency. By asking basic questions of the victim – who, when, why – the officers were able to determine what type of response was needed. For example, they could determine if there was an armed and dangerous robbery suspect fleeing the gas station, or whether there was a domestic disturbance, or whether a sniper was loose in the area.

During oral argument, the Justices, especially Justice Breyer, seemed concerned about establishing a rule that whenever police "come across a victim of a crime and ask him questions, it's going to be admissible." This is probably true, but it does not seem to me to raise a constitutional problem. Instead, trial courts should be able to determine the primary purpose of police questioning from the context.