Monday, March 07, 2011

Confronting imaginary emergencies

Michigan v Bryant, USSC No 109-150, 28 February 2011, continues the line of cases which purports to bring the reliability exception to the rule excluding hearsay into interpretation of the Confrontation Clause of the Sixth Amendment. See my 27 June 2008 comments on Giles v California, 554 U.S. 353 (2008). Bryant is a rather questionable decision on its facts, as Scalia J vigorously points out in his dissent.

To achieve admission of the evidence - the mortally wounded victim told the police who had shot him - the majority (Sotomayor J, joined by Roberts CJ and Kennedy, Breyer and Alito JJ, with Thomas J separately concurring) assessed the facts "objectively" from the points of view of the victim (the "declarant") and of the police who questioned him. Perhaps they were pushed to this curious approach because there was no evidence that the emergency which was necessary to escape the exclusion of the evidence actually existed: see Scalia J, slip op., pp 9–10; the majority said that the declarant and the police should have thought it did. That is, the majority held that there was an objective emergency and the declarant's objective purpose (not his actual purpose, but the purpose he should have had) was to help the police meet this emergency, so what he said was not testimonial and the confrontation clause did not apply.

The Confrontation Clause states:

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
Witnesses are those who bear testimony, and testimony means "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact": Crawford v. Washington, 541 U. S. 36, at 51.

Those of us who do not have to worry about the Confrontation Clause can still take an interest in the majority's strange reasoning. I exempt Thomas J from this criticism, as he simply focused on whether the declarant's statement was "testimonial" within the meaning of that term in the Sixth Amendment and held that it was not because the interrogation here did not have the characteristics of a formalised dialogue with indicia of solemnity. He thus avoided trying to reconstruct the primary purpose of the participants. But the reasoning that constitutes the opinion of the Court is very odd.

The Court addresses the purpose component of testimony objectively (slip op., p 13):
"... the relevant inquiry into the parties' statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties' statements and actions and the circumstances in which the encounter occurred."
This undermines the basis for the reliability exception, which is that the circumstances as perceived by the speaker who is no longer available as a witness were such as to make fabrication unlikely. But the Court would say that even if the declarant did not realise that he needed to speak urgently, he should have realised that urgency existed and accuracy was required.

Further, as Scalia J points out, the Court is giving judges the power to do what they like:

"If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If 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. Unfortunately, under this malleable approach "the guarantee of confrontation is no guarantee at all." Giles v. California, 554 U. S. 353, 375 (2008) (plurality)."

The Court recognised that the existence of an emergency was relevant, but in relation to the interrogators' primary purpose, calling this a "context-dependent inquiry". At slip op., p 22 it held:

"The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim's circumstances, which prominently include the victim's physical state." [emphasis added]

The alarming thing here is that the actual victim here did not seem to appreciate any urgency. After being shot he fled some six blocks and at a gas station 25 minutes later a 911 call was made and the police quickly arrived. Then five officers in turn questioned him about the shooting.

"[the victim's] pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked [him] how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid." [Scalia J's opinion, p 7]

Justice Ginsburg agreed with Scalia J that the declarant's intent is what counts. She noted that the issue of whether this case was one of a dying declaration was not before the Supreme Court because it had been abandoned by the prosecution in the Michigan Supreme Court. So although the Court had recognised that the dying declaration exception to the hearsay rule was an exception to the confrontation requirement in the common law inherited from England (Crawford v Washington, above), it was not necessary here to decide whether it survived the Court's recent confrontation decisions.

Bryant is a case where, as the prosecution recognised, the easy answer - that the declarant was making a dying declaration - was not available on the true facts, so the plurality had to uphold the admission of the evidence on these inconvenient facts by creating law that escapes the Confrontation Clause by pretending the statements were in response to an emergency and so were not testimonial. With the "facts" being what judges think they should have been, judges can do as they wish.