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October 12, 2011 Articles

The Shifting Grounds of the Constitutional Right to Confrontation

The majority of the Supreme Court left open for interpretation how, if at all, courts should treat reliability when conducting a primary purpose inquiry.

By Emily R. Schulman and Melissa Turitz

The Confrontation Clause of the Sixth Amendment, made binding on the states by the Fourteenth Amendment, guarantees that in all criminal prosecutions, the accused shall have the right to “be confronted with the witnesses against him.” This procedural guarantee—of the right to face one’s accusers—generally requires that a defendant has the opportunity to cross-examine witnesses. Questions about the limits of the Confrontation Clause’s protection arise, however, when witnesses are unavailable for cross-examination.

In such cases, prior to 2004, the Confrontation Clause provided little additional protection to the protection already provided by the rules of evidence. In criminal litigation, as enunciated in the U.S. Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980), “reliability” was the touchstone of Confrontation Clause evaluations. Statements for which defendants did not have an opportunity for cross-examination would nonetheless be admissible if they met one of the hearsay rules’ exceptions or otherwise bore indicia of trustworthiness or reliability.

Almost a quarter of a century later, in 2004, and again in 2006, the Supreme Court revisited the Confrontation Clause and, rejecting reliability, began developing a new bright-line inquiry focusing solely on whether the statements were testimonial or non-testimonial. These decisions—Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006) (decided jointly with Hammon v. Indiana, 547 U.S. 813 (2006))—suggested a judicial revival of the Confrontation Clause. Justice Scalia, writing for the Court in both opinions, emphasized that the Confrontation Clause stood as an independent guarantee separate from the rules of evidence and promised greater predictability with the Court’s new approach.

In contrast to the Court’s promises in 2004 and 2006, the recent Supreme Court decision in Michigan v. Bryant, No. 09-150, 131 S. Ct. 1143 (Feb. 28, 2011), appears to stand as a setback to judicial efforts to provide greater predictability and differentiate the Confrontation Clause from the rules of evidence. With its renewed references to reliability, Bryant reopens the question of whether reliability is relevant to constitutional evaluations of testimony under the Confrontation Clause. And with the Bryant Court’s employment of a multifactorial evaluation, Confrontation Clause jurisprudence again becomes significantly more malleable and outcome oriented.

The consequences of Bryant for criminal defendants are considerable. Under Bryant, if faced with unavailable witnesses, defendants will be left arguing over what are considered non-testimonial statements, especially in the context of “ongoing emergencies.” Multiple factors— including the formality of the interrogation during which a statement is made, the use of a weapon, the private nature of the dispute, the existence of an ongoing emergency, and the actions and statements of both the witness and interrogator—must be examined. Defendants will face the possibility that any witness statements made to first responders, including police officers, medical responders, or 911 operators—until such time that the defendant is apprehended, or at least his or her motive, identity, and location are learned—could be considered non-testimonial. Moreover, defendants will need to assume knowledge of both the witness’s perspective and motives in making his or her statements and the first responders’ motives and perspective in taking such a statement. In any given case, the defendant may need to argue that either the primary purpose of the witness, in making the statement, or the first responder, in taking the statement, is paramount to the evaluation regarding what is testimonial.

Confrontation Clause Jurisprudence Pre-Bryant
Prior to 1980, the Supreme Court had ruled on Confrontation Clause issues but had not sought to proclaim a general doctrine for Confrontation Clause evaluations. See Ohio v. Roberts, 448 U.S. 56, 64 (1980) (“[T]he process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to map out a theory of the Confrontation Clause that would determine the validity of all . . . hearsay exceptions.”) (internal quotations omitted). In 1980, as noted above, the Supreme Court announced that “reliability” was the touchstone of Confrontation Clause evaluations. Since that time, the Supreme Court has experienced a sea change in approach, as it first rejected reliability and then attempted to provide further guidance for the courts for when statements should be considered testimonial and when they should be considered non-testimonial and subject only to the varying rules of evidence.

Indicia of Reliability
In Ohio v. Roberts, 448 U.S. 56 (1980), a defendant was convicted of forgery and receiving stolen property, among other things, partially on the basis of statements made during a preliminary hearing by a defense witness who subsequently became unavailable for trial. Id. at 58–60. At the preliminary hearing, the defense counsel questioned the witness at length but did not request to have her declared hostile or to place her on cross-examination; the prosecution never questioned the witness. Id. at 58. At trial, and on appeal, the defendant objected to the admission of a transcript of the witness’s preliminary hearing statements as a violation of his rights under the Confrontation Clause. Id. at 59–60. After the Supreme Court of Ohio held that the transcripts were inadmissible because the witness had not been cross-examined at the preliminary hearing, although the defendant had an opportunity to do so, the U.S. Supreme Court granted certiorari. Id. at 61.

The Supreme Court attempted to clarify the relationship between the Confrontation Clause and the evidentiary rules regarding hearsay. Id. at 62. It emphasized the importance of “face-to-face confrontation at trial” to test a witness’s accuracy but recognized that competing interests existed for sometimes dispensing with the requirement of cross-examination. Id. at 63–64. The root of the test defined in Roberts was whether the proposed evidence bore some “indicia of reliability.” Id. at 66. In that manner, the Court found that the rules of hearsay and the Confrontation Clause were closely bound and that for the purposes of Confrontation Clause exceptions, “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception [or] particularized guarantees of trustworthiness.” Id. at 66.

Testimonial Versus Non-Testimonial Statements
Twenty-four years later, in Crawford v. Washington, 541 U.S. 36 (2004), Justice Scalia’s majority opinion rejected Roberts and its use of “reliability” for Confrontation Clause evaluations. See Id. at 60–65. In Crawford, a defendant accused of assault and attempted murder contested the trial court’s admission of his wife’s witness statements, which were made during a recorded police interview shortly after the attack. Id. at 40–41. The wife did not testify at trial and, thus, was unavailable for cross-examination. See id. After the Washington Supreme Court unanimously concluded that the wife’s statements were admissible because they bore “guarantees of trustworthiness,” the Supreme Court granted certiorari to consider whether the statements violated the Confrontation Clause. Id. at 41–42.

The Crawford opinion explained that conditioning the admissibility of hearsay evidence only on whether it falls within a “firmly rooted hearsay exception” or bears other guarantees of trustworthiness did not adequately address the concerns behind the Confrontation Clause. See id. at 60. In the Court’s 2004 opinion, it was not sufficient for a statement to be merely reliable; the Confrontation Clause required that the reliability be tested, if a statement was testimonial, by cross-examination. Id. Thus, Crawford imposed “an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine.” Id. Although it did not provide a “precise articulation” or “comprehensive definition” of “testimonial,” Crawford was clear that out-of-court statements could be testimonial, depending on whether they were “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 52, 61 (internal quotations omitted) (including ex parte in-court testimony, such as affidavits, custodial examinations, or prior testimony that the defendant could not cross-examine; extrajudicial statements, such as depositions or confessions; or statements made where an objective witness could reasonably believe that he or she could be used at trial or for prosecutorial purposes). The Court also announced that the term unquestionably covered at least two types of statements: (1) prior testimony at a preliminary hearing, grand jury session, or former trial and (2) police interrogations. Id. at 68.

Moreover, in Crawford,Justice Scalia faulted the Roberts reliability test because the “framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations.” Id. at 63. Crawford stated that there were “countless factors bearing on whether a statement is reliable.” Id. at 63. (“Whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each one.”) Accordingly, in the Supreme Court’s view, reliability was a dangerous way to decide Confrontation Clause exceptions, because the test could result in contradictory findings, depending on the court and the weight ascribed to the various factors.

Ongoing Emergencies and the Primary Purpose Test
Two years after Crawford, Justice Scalia, again delivering the opinion for the Court, applied the testimonial doctrine announced in Crawford to two domestic violence matters in which the defendants objected to the admission of evidence as violative of the Confrontation Clause. In one, Davis v. Washington, 547 U.S. 813 (2006), a declarant/victim provided information to a 911 emergency operator, regarding a domestic dispute. During the call, the 911 operator asked what was going on, where the victim was, whether the attacker had a weapon, and the identity of the attacker. The victim answered these questions, and then informed the operator that her attacker was running away. Id. at 817. In the other matter, Hammon v. Indiana, 547 U.S. 813 (2006), the police, responding to a domestic disturbance report, found the declarant/victim outside her house. Id. at 819. The victim appeared frightened but informed the police officers that nothing was the matter In further questioning by the police, the victim told the police about the domestic dispute, while other officers restrained her husband in a separate room. Id. at 820. After the interrogation, the police had the victim complete and sign a battery affidavit describing the altercation. Id.

The Supreme Court opinion in Davis confirmed that the Confrontation Clause only applies to “testimonial” evidence; thus, the touchstone of the Confrontation Clause evaluations must be whether a statement is “testimonial.” See id. at 821–22. The Court held as follows:

Statements are nontestimonial 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. They 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.

Id. at 822.

Applying its holding to the facts in Davis, the Supreme Court found that the declarant’s initial statements to the 911 operator were not testimonial, because (1) the declarant spoke about events “as they were actually happening”; (2) the declarant’s 911 call was a call for help in regard to a real physical threat, and “any reasonable listener would recognize that [the declarant] was facing an ongoing emergency”; (3) the substance of the questions and answers were necessary to “resolve the present emergency”; and (4) the 911 call was frantic and made in an “environment that was not tranquil or even . . . safe.” Id. at 827 (emphasis in original).

In contrast, viewing the facts in Hammon, the Supreme Court found that the statements made to the police officers and in the signed affidavit were testimonial because the interrogation “was part of an investigation into possibly criminal past conduct.” Id. at 829–30. The Court observed that in Hammon, (1) there was no emergency in progress when the police arrived, and the declarant had initially told police that she was not in danger; (2) the declarant was actively separated from the defendant, who was forcibly restrained from participating in the interrogation; (3) the statements “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed”; and (4) the statements were made after the events had occurred. See id. at 830.

In differentiating the two situations, the Court emphasized that in Davis, the declarant was alone, unprotected, in immediate danger, and in the process of seeking assistance, while in Hammon, there was no such contemporary danger to the declarant, nor were there any contemporary requests for assistance. Id. at 831.

In Davis, the Court also provided guidance that statements could evolve from non-testimonial to testimonial. See id. at 829. For example, in Davis, after the victim informed the 911 operator that her attacker was running away, the operator continued to ask, and was provided with additional information, about the attacker and the context of the assault. Id. at 818. In that context, after the operator had gained the information necessary to address the ongoing emergency and after the threat to the declarant had apparently ended, the statements made in response to the “battery of questions” posed by the operator could be considered testimonial. See id. at 828–29.

Michigan v. Bryant
In Michigan v. Bryant, the Supreme Court extended the Confrontation Clause jurisprudence and applied its testimonial inquiry to a situation that involved the interrogation by the police of a gunshot victim lying in a parking lot, not domestic violence. Justice Sotomayor delivered the opinion for the Court, with dissenting opinions from Justice Scalia and Justice Ginsburg, and a concurrence from Justice Thomas.

The question in Bryant was whether statements made in the parking lot to several police officers by the gunshot victim, Anthony Covington, were admissible at the trial of Richard Bryant. Covington died shortly after his interrogation, and Bryant was prosecuted for his murder. Bryant, No. 09-150, slip op. at 1. After the trial, which included testimony from the police officers regarding Covington’s statements that identified and described Bryant as the shooter and identified the location of the shooting, the jury convicted Bryant of second degree murder. Id. Bryant appealed, claiming that the admission of Covington’s statements violated his rights under the Confrontation Clause. Id.

The Supreme Court found that Covington’s statements were not testimonial; accordingly, their admission did not violate the Confrontation Clause. It held that “the circumstances of the interactions between Covington and the police objectively indicate that the ‘primary purpose of the interrogation’ was to ‘enable police assistance to meet an ongoing emergency.’” Id. (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

The Facts of Bryant
In Bryant, police officers were dispatched to a gas station parking lot to respond to a report that a man had been shot. Id. at 2. The officers found Covington lying in the parking lot, bleeding from a gunshot wound to the abdomen. Id. At the time, the officers did not know the victim’s identity, the location of the shooting, the shooter’s identity or location, or the motives for the shooting. Id. at 25.

In the 5 to 10 minutes it took for emergency medical services to arrive, the police interrogated Covington about the shooting, asking him, among other questions, what had happened, who had shot him, and where the shooting had occurred. Id. at 2. During this time, Covington lay bleeding on the ground, appeared to be in great pain, and had trouble speaking and breathing. Id. at 29. In response to questioning by the police, Covington identified Bryant as his shooter and provided a description of Bryant’s voice. He stated that he had been shot at Bryant’s house and had then driven to the gas station where he was found. Id. at 2. Covington did not know Bryant’s whereabouts at the time of his questioning by the police.

Discussion and Application of the Law
Reviewing the history of Confrontation Clause jurisprudence, the Supreme Court stated that under Crawford and Davis, the proper inquiry for Confrontation Clause violations is whether the evidence is “testimonial.” To make this determination, the Court confirmed that courts should consider whether there was an ongoing emergency and, if so, whether “the primary purpose of the interrogation is to enable police assistance to meet [it].” Id. at 9–11 (internal quotations omitted). Because the facts in Bryant did not involve a domestic dispute, the Court found that there was a need to clarify and further expand on the “ongoing emergency” circumstances and the “primary purpose of the interrogation” inquiries that had previously been employed. Id. at 12.

The Court first confirmed that the “primary purpose of the interrogation” inquiry is objective. See id. at 12. It stated that under Davis, “the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had.” Id. at 13. The circumstances of the interrogation, including the location of the interrogation (at or near the scene of the crime), the timing of the interrogation (during an ongoing emergency or afterward), and the statements and actions of both the interrogators and the respondents are all factors to be considered in determining what the primary purpose of the interrogation would be for reasonable participants. Id. at 13.

The Supreme Court then attempted to flesh out several of the circumstances of the interrogation: (1) the existence of an ongoing emergency; (2) the statements, actions, and conditions of both the interrogator and declarant, including the medical condition of the declarant; and (3) the formality of the interrogation. It used these circumstances to determine, first, the existence of an ongoing emergency in Bryant and, second, given the ongoing emergency, whether the primary purpose of Covington’s interrogation was “to create a record for trial” or gain information necessary to address the emergency.

Existence of an Ongoing Emergency
The court stated that the existence of an ongoing emergency is the “most important circumstance,” although not the sole circumstance, for the primary purpose inquiry. Id. at 14. In the Court’s view, the existence of the ongoing emergency is important because it “focuses the participants on something other than proving past events potentially relevant to later criminal prosecution.” Id. at 14 (quoting Davis, 547 U.S. at 822, 832). The Court reasoned that, like the rationale behind the excited utterance hearsay exception, “the prospect of fabrication in statements given for the primary purpose of resolving [the ongoing] emergency is presumably diminished.” Id. Thus, these types of non-testimonial statements are permitted despite the Confrontation Clause’s requirement for cross-examination.

In Bryant, as in Davis, the Supreme Court left the boundaries of ongoing emergencies undefined. It recognized that determining whether there is an ongoing emergency is a “highly context-dependent inquiry.” Id. at 16. The Court explained, however, that the scope of the “ongoing emergency” extends “beyond an initial victim to a potential threat to the responding police and the public at large.” Id. at 12. Thus, the ongoing emergency assessment must encompass not only the initial threat to the first victim but also the potential continued threat, if any, to first responders and the public. Id. at 17. The Court made clear that the end of the violent act does not necessarily mean that the broader emergency has also ended. Id. at 27. Similarly, if the police do not know the identity or motivation of an assailant, the emergency does not automatically abate just because the first victim is secured. Id. at 17.

In this manner, the Court contrasted Davis with Bryant. According to the Court, Davis involved a confined ongoing emergency with “a narrower zone of potential victims”—in Davis, there was one victim, an identified assailant, a weaponless attack, and a known motivation. See id. at 16–17. In contrast, Bryant was “a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim.” Id. When the police arrived, nothing indicated to them whether the dispute was a private one, what the motives for the shooting were, or whether the threat had ended. Id. at 26. Because the violence was committed with a gun, the Court concluded that physical separation “was not necessarily sufficient to end the threat in this case.” Id. at 27. As a result, the Court determined that there was an ongoing emergency in existence when Covington was interrogated by the police.

The Court acknowledged that an ongoing emergency could evolve into an ended emergency. For example, if the police learned information from the declarant, showing that “what appeared to be an emergency is not or no longer is an emergency or what appeared to be a public threat is actually a private dispute,” the ongoing nature of the emergency could end. Id. at 18. Similarly, the Court stated that the ongoing emergency could terminate upon the apprehension of the suspect, his disarming, surrender, or flight. See id. The Court did not attempt to determine when the ongoing emergency ended in regard to Covington, as the interactions all took place shortly after the police found him and well before they had secured the scene of the shooting or located Bryant. Id. at 28.

Statements and Actions of Both the Declarant and Interrogator
The Court also explained that the primary purpose inquiry needed to account “for both the declarant and interrogator.” Id. at 12. The Court reasoned that a mixed inquiry is more reliable than focusing solely on one participant’s actions because that participant—either the interrogator or declarant—could have mixed motives for asking the questions or providing the answers. Id. at 21. Although it recognized that the declarant’s statements, not the interrogator’s questions, are subject to the Confrontation Clause, the Court claimed that it was best to allow courts engaged in a primary purpose test to “consult[] all relevant information, including the statements and actions of interrogators.” 23.

The Court further explained that the medical condition of the victim/declarant is relevant to the primary purpose inquiry because the medical condition of the declarant “sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one.” Id. at 17–18. Similarly, the medical condition of the declarant provides context that can assist first responders in determining “the existence and magnitude of a continuing threat to the victim, themselves, and the public.” Id.

Having concluded that there was an ongoing emergency with respect to Covington, the Court proceeded to determine, given the context of Covington’s interrogation, whether the primary purpose of the interrogation was testimonial or whether it was to enable police assistance for the ongoing emergency. Id. at 28. In doing so, it examined separately the circumstances of the inquiry from both the interrogator’s and the declarant’s perspectives.

The Court emphasized the nature of Covington’s injuries and condition, observing that he had been lying in a parking lot, bleeding from a gunshot wound to the abdomen; that his answers were interspersed with questions about when emergency medical services would arrive; and that he was “obviously in considerable pain and had difficulty breathing and talking.” Id. It concluded that “we cannot say a person in Covington’s situation would have had the primary purpose to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 29 (internal quotations omitted).

The Court also examined the circumstances of the police, emphasizing that when they responded to the report, “they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime had occurred.” Id. The Court further observed that the questions the police asked were those that would enable the police to assess the situation and the safety threat presented, reasoning therefore that they solicited the information for the purposes of the ongoing emergency. See id. at 30.

Formality of the Interrogation
Finally, the Court explained that the formality of the interrogation is another factor in the primary purpose inquiry. In the Supreme Court’s opinion, the more formal the interrogation, the less likely that there is an ongoing emergency and the more likely that “the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 19 (internal quotations omitted).

Applying this to the facts before it, the Court considered the informality of the situation and interrogation that occurred in the gas station parking lot. Id. at 31. It observed that the circumstances surrounding Covington’s interrogation were “fluid and somewhat confused.” Id. at 31. Likening the situation to the 911 call in Davis, as opposed to the police station interrogation in Crawford, the Court concluded that “[t]he informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.” Id. at 31.

The Implications of Bryant
In Davis, the Supreme Court noted that the factors differentiating Davis from Hammon were the existence of an immediate threat to the victim, who was presently unprotected by the police; the contemporary description of ongoing events; and the frantic nature of the interrogation. In light of these differences, despite the clearly domestic nature of Hammon, the distinction between Bryant and Hammon seems somewhat artificial. For all the police knew when they arrived at the gas station parking lot, Bryant could have been a domestic or familial dispute that involved a gun rather than fists and a victim located in a public place, not a residence. In both cases, the declarant was physically separated from his or her attacker and protected by a police presence during the interrogation. It is difficult to argue that either declarant was in immediate danger from his or her attacker; it seems unlikely that the attacker would have been able to break through the police protection at the scene of the interrogation to cause further injury. Similarly, in both Bryant and Hammon, the declarant discussed past events as opposed to describing a contemporary threat. While Covington required medical attention to treat his gunshot wounds, he had already fled from the threat posed by Bryant and was physically separated by time and distance from the attack. Finally, although the Bryant court described the  nature of the situation and interrogation as “fluid,” it is also clear that the interrogation took place in the presence of police and outside the presence of the attacker, as in Hammon.

It is important to note that even in Davis, where the Supreme Court found that the declarant’s initial statements to the 911 operator were non-testimonial, the Court indicated that after the attacker had fled, her subsequent statements made in the same conversation to the 911 operator were testimonial. See Davis, 547 U.S. at 828–29. The ongoing emergency interrogation had evolved into a testimonial interrogation. See id. This is so although there was still a potential threat to first responders if the attacker had chosen to return. The 911 operator did not know whether the attacker in Davis would return, possibly with a weapon, or commit other acts of violence against other members of the public as a result of his anger.

In the wake of Bryant, unpredictability in the case law is likely to increase. Although the Court claimed to have followed the precedent set in Crawford and Davis, the approach that Bryant announced resembles the multifactor “indicia of reliability” evaluation criticized in Crawford for its unpredictability. First, there is no guidance as to the weight courts should give the various factors of the primary purpose inquiry, beyond the heavy weight given to the existence of an ongoing emergency. Moreover, after Bryant, the universe of circumstances contributing to the primary purpose inquiry is still undefined, leaving it up to the lower courts or subsequent Supreme Court opinions to announce what other circumstances may play a role in determining the primary purpose of an interrogation. Second, there is no clear answer regarding the outer boundaries of an ongoing emergency. Questions still remain regarding how wide an exception Bryant creates for hearsay evidence. In the dissents by Justices Ginsburg and Scalia, it was claimed that Bryant “creates an expansive exception to the Confrontation Clause for violent crimes.” Michigan v. Bryant, Scalia, J., dissent, at 10 (quoted in Justice Ginsburg’s dissent, slip op. at 1). Third, the Bryant Court’s reference to reliability reopens the question of what relevance reliability has to Confrontation Clause analyses.

Unpredictable Results of the Multifactor Balancing Test
In Crawford, Justice Scalia complained of the unpredictability inherent in applying Roberts, objecting that “reliability is . . . amorphous, if not entirely subjective” and that “countless factors bear[] on whether a statement is reliable.” Crawford, 541 U.S. at 63. Instead, the Crawford Court chose what it considered to be a purer constitutional standard—whether or not a statement was “testimonial.” Id. In Davis, Justice Scalia, writing for the Court, attempted to clarify further what was meant by “testimonial.” Now, in his dissent from Bryant, Justice Scalia objected that “[i]nstead of clarifying the law, the Court makes itself the obfuscator of last resort.” Bryant, Scalia, J., dissent, at 1.

In Bryant, the Court’s multifactor primary purpose evaluation considered the formality of the situation, the existence of an ongoing emergency, and the actions and statements of both the declarant and interrogators. The Court, however, did not confine the “circumstances of the encounter” to just those four circumstances. Nor did it explain how the factors should be weighed if found to conflict, beyond stating that an ongoing emergency is the most important circumstance to consider. Thus, defendants and prosecutors are left to argue over what other circumstances may play a role in Confrontation Clause evaluations, and the lower courts are left to decide those circumstances and their relative weights.

In addition, the Bryant Court did not provide guidance on how to resolve scenarios of “mixed motives,” in which the declarant’s and the interrogator’s intentions conflict. For example, Bryant did not identify whose perspective is more important in the primary purpose analysis. As Justice Scalia claimed, although the Court created a mixed-motive inquiry, it did “not provide an answer to this glaringly obvious problem, probably because it does not have one.” Bryant, Scalia, J., dissent, at 3.

A court may find itself presented with a situation in which the police officers are gathering information to meet what they perceive to be an ongoing emergency, but the declarant, believing himself or herself to be safe once the police arrive, provides information “to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822. In such a case, despite the declarant’s intent, it is unclear whether his statements would be excluded as testimonial because of the police officers’ conflicting motives. According to Justice Scalia, the benefit of Bryant’s primary purpose inquiry, despite its disregard for the concerns that prompted the Confrontation Clause, is its “totality of the circumstances” approach, which “leaves judges free to reach the ‘fairest’ result.’” Bryant, Scalia, J., dissent, at 5.

No Clear Answer for What Ends an Ongoing Emergency
Questions also remain over how wide the Bryant exception is for hearsay evidence that may be admitted despite a lack of confrontation. Although the Bryant Court noted the importance of Covington’s gunshot wound, it did not confine its analysis to only those situations involving guns. Moreover, the Court noted that “[a]n emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim,” id. at 27, and that an emergency, “at least as to certain weapons,” cannot be said to “last only precisely as long as the violent act itself.” Id. The Court further commented that “an out-of-sight sniper paus[ing] between shots” does not end the emergency between during those pauses. Id. Although an ongoing emergency would seem to clearly encompass a situation in which an unseen sniper pauses between shots, to reload or target a new victim, it is unclear how much further an ongoing emergency extends. The Court noted that did not mean to suggest that the ongoing emergency in Bryant extended until Bryant’s arrest in a different state a year later, but the Court also noted that at the time of Covington’s statements, the police did not know the location of the shooter or his motives. Bryant, slip op. at 27–28. Justice Scalia argued in dissent that the police’s lack of knowledge regarding a suspect’s motive or location is a “dangerous definition of emergency,” as “[m]any individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act.” Bryant, Scalia, J., dissent, at 10.

Practically speaking, using the police’s lack of knowledge regarding a perpetrator’s motive or location could open up a much lengthier period for Confrontation Clause exceptions than the hour or less found in Bryant. If the police canvas a neighborhood the evening of a shooting, could all witness statements be considered non-testimonial? What if the search lasts longer and covers an area where the police believe a suspect, still armed, may be located? Further, what if the unidentified, un-located assailant is armed with not a gun, but a knife? Does that make the assailant sufficiently less of a threat to the public and first responders such that the situation would no longer be considered an ongoing emergency? Finally, returning to the unknown shooter identified in Bryant, what if, like the D.C. sniper, the police investigation takes much longer than one evening, and the “paus[e] between shots” is longer than a few moments? See id. at 27. At what point does the ongoing emergency end, if not when the declarant is provided with police protection or when the suspect is taken into custody or at least located?

The Role of Reliability in the Confrontation Clause Evaluation
Finally, the Bryant Court’s discussion of reliability also raises questions as to whether reliability is still a factor in Confrontation Clause evaluations and, if so, how. Reviewing the case law, the Court stated, “Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.” Bryant, slip op. at 14. It further stated that “[i]n making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” Id. at 11–12. With such statements, Justice Scalia claimed that the Court’s opinion in Bryant “is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.” Bryant, Scalia, J., dissent, at 12. More mildly, Justice Ginsburg claimed that the majority’s opinion in Bryant “confounds our recent Confrontation Clause jurisprudence” that states that reliability is irrelevant to determinations regarding whether a statement is testimonial. Bryant, Ginsburg, J., dissent, at 1.

It is not clear how, if at all, the Court considered reliability in deciding Bryant. Certainly, the Court did not state that reliability was a factor in its determination, nor did it discuss why Covington’s statements could be considered reliable. However, with its statement regarding Davis and the rules of hearsay, the majority of the Supreme Court left open for interpretation how, if at all, courts should treat reliability when conducting a primary purpose inquiry.

Keywords: litigation, criminal litigation, Bryant, testimonial, primary purpose test, Crawford, multifactor balancing test, ongoing emergency

Emily R. Schulman is a partner and Melissa Turitz is a senior associate with Wilmer Cutler Pickering Hale and Dorr LLP in Boston, Massachusetts.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).