Thursday, June 11, 2009

A nice decision from Michigan on fresh accusations

The wait for Melendez-Diaz must be nearly over – Monday is another potential decision day. Meanwhile, I haven’t made any new postings for a while because there haven’t been developments that I thought were worth discussion. But now there is a nice decision, by a 4-3 majority of the Michigan Supreme Court, in the area of fresh accusations. The case is People v. Bryant (Mich. June 10, 2009), and you can see it by clicking here.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:
Davis stated that “in the final analysis [it is] the declarant’s statements, not the interrogation’s questions, that the Confrontation Clause requires us to evaluate.” The declarant here (i.e., the victim) made these statements while he was surrounded by five police officers and knowing that emergency medical service (EMS) was on the way. Obviously, his primary purpose in making these statements to the police was not to enable the police to meet an ongoing emergency of the type identified by the United States Supreme Court, but was instead to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal. That is, the primary purpose of the victim’s statements to the police was to “establish or prove past events potentially relevant to later criminal prosecution.”
Only after this passage did the court add comments from the perspective of the police. The court said: "The primary purpose of the police questioning of the victim at the gas station was to determine who shot the victim and where the shooter could be found so that they could arrest him." Now, one can quibble with that description if one takes the perspective of the officers at the very beginning of the conversation -- again, they apparently knew nothing, and they may well have worried that the shooter was on the loose nearby. But the court's statement is accurate if it is taken as a description of what the victim (or a reasonable person in the victim's position) would understand the officer's purpose to be. And the anticipation of a reasonable person in the victim's position is the critical one.

The court also rejected the state's argument that there was an ongoing emergency because the police had to stop the assailant from hurting someone else; as the court pointed out, that would almost always be true when a suspect is at large. The court quotes Jeff Fisher approvingly to the effect that emergency must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."

And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

On the whole, this is an excellent decision, and I hope other courts follow it.


Anonymous said...

Prof., in your opinion, had EMTs asked the questions in this case, would the statements be testimonial?

Richard D. Friedman said...

Interesting question. Sorry for the belated response.

In my view, the proper question to ask is what would the anticipation of a reasonable person in the position of the declarant have been. I think that in this case, even if the questions had been asked by an EMT, such a person wold have anticipated that his answers would help apprehend and prosecute the assailant. That means the answer is a communicative act made with the intention of creating evidence -- I believe that's testimonial.

Now, some courts, even if they agree with the analysis of the Michigan Supreme Court in this case, might be swayed by the (hypothetical) fact that the questioner is an EMT rather than a police officer; that certainly has atmospheric value in suggesting that what is going on is the response to a medical emergency. But I think everybody involved understands that one function performed by the EMTs in this kind of situation is to act as a conduit to law enforcement. And that isn't true now it certainly will be if a routine practice becomes that EMTs (rather than police officers) testify to accusatory statements by wounded victims.

Indeed, if EMTS but not police officers are allowed to testify to such statements, I think we'll see a distortion of practice in which EMTs take on more of the burden of "first investigation" (as opposed to "first aid"). I suspect that will have detrimental effects both on police work and on emergency medical assistance.

Anonymous said...

Please check out How Appealing. There is other news out of MI regarding an important issue discussed at this blog before.

craig bradley said...

Richard I agree with everything you say about Melendez. It clearly follows from the earlier cases and is, in any case, right. The defendant should have a shot at scientific testimony to help ensure that it's reliable. There are various reasons why it might not be. Where you and I continue to differ is on the testimonial/non-testimonial distinction. "Testimony" it seems obvious to me, is what the prosecution offers at trial as part of its case. If it offers the chemist's report then the chemist has to appear to back it up. Contrary to the dissent, it's clear this is who must be available, not the guy who calibrated the machine. But if the prosecutor uses the statement of someone in a 911 call giving any sort of information, that person is also giving "testimony" and should also be available to the defense. The intent of the person, or the intent of the 911 operator when they originally made the statement is irrelevant. Why not give the defendant the right to confront ALL witnesses as the 6th amend. provides? Craig Bradley, Indiana U. Law School

Richard D. Friedman said...

Craig, I guess I'm not sure what your definition of a witness is -- presumably not any declarant, is it?

Richard D. Friedman said...

I just realized I misstated the quotation from Jeff Fisher -- I meant" . . . would always be nontestimonial" rather than " . . . would always be testimonial." Slight change of emphasis there! I'll try to correct the main post. Dave Moran has just informed me that the Court is likely to issue a decision granting or denying certiorari on Monday.