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Reactions to the Bryant argument -- Part 2

By Richard D. Friedman

Here are further comments on the Bryant argument.

The consequences of holding this statement non-testimonial ? Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility ? not only no constitutional bar but really no bar at all.

The perspective question ? There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains ? objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker ? the person who is arguably a witness for purposes of the Confrontation Clause ? is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .

Emergency ? It's important to recognize ? as I think Peter Van Hoek, arguing for Bryant, made clear ? that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose ? certainly he gave no indication ? that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)

Dying declarations and forfeiture ? Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).

Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.

Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that ? again, assuming a predicate finding that Bryant killed Covington ? the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.

That leaves the troubling possibility that ? with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception ? some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.

Full post as published by The Confrontation Blog on October 07, 2010 (boomark / email).