When a Guarantee No Longer Is . . .

To really appreciate the measure of intellectual dishonesty employed by the United States Supreme Court in its February 12, 2011 opinion, Michigan v. Bryant, 562 U.S. ____ (2011), one need not take my word for it; all that is needed is a cursory review of Justice Scalia’s dissent. Scalia does not politely voice his disagreement with the majority; he flat out calls them out, stopping just shy of calling the majority a bunch liars. He says for example, that the majority’s interpretation of the facts is, “so transparently false that professing to believe it demeans this institution. Id. at ____. And “[i]n its vain attempt to make the incredible plausible . . . today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Id. at ____.

In Bryant, the victim was shot and killed, but before dying he managed to make a series of statements to five different police officers about the identity of the shooter and the location of the shooting. His statements to the officers were admitted at trial and the alleged shooter was convicted of second degree murder. Following Crawford and Davis, the Michigan Supreme Court reversed the conviction holding that the admission of the statements violated the Confrontation Clause of the United States Constitution. The United States Supreme Court vacated the ruling of the Michigan Supreme Court and remanded the case for a determination of whether the statements were otherwise admissible under the state’s hearsay rules.

The Court held that the admission of the out of court statements did not violate the Confrontation Clause because they were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Id. at ____.

The significance of the Bryant decision, as explained by Justice Scalia, is that rather than using the intent of the declarant to determine the testimonial nature of the statement, it now requires a trial court to engage in a convoluted analysis of the intent of both the interrogator and the declarant in order to determine if the primary purpose of the interrogation was to diffuse an ongoing emergency. In doing so, Justice Scalia reasons that the Court has created a mechanism by which a court can determine the admissibility of the statement by first determining, “[i]f the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome.“ Id. at ___.

Justice Scalia advocates the use of a “declarant-focused inquiry.” Id. at ___. Under this approach a statement is testimonial, if the declarant knows that the statement is “potentially relevant to a later criminal prosecution should one ensue.” Id. at ____.

While it strikes me that Justice Scalia’s approach is far more logical and simpler, I can’t help wonder whether the better approach is to examine the purpose of the proffered statement. As every first year law student knows, hearsay, by definition, is an out of court statement offered to prove the truth of the matter asserted. In determining the admissibility of an out of court statement, the court must first determine if it is offered to prove the truth of the matter asserted. It strikes me that if an out of court statement tends to prove a material fact (such as identity or venue) then the statement is testimonial and the protections of the Confrontation Clause are implicated.

Regardless of which of these approaches one chooses, as articulated by Justice Scalia, the fact remains that this opinion leaves the guarantee safeguarded by the Confrontation Clause as, “no guarantee at all.” Id. at ____.

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