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.