Tuesday, May 11, 2010

State-side amicus briefs in Bryant

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.


paul said...

The "emergency" that the cops need to immediately address upon seeing the victim bleeding out from a gunshot wound is protecting the public from the perpetrator -- nothing more, nothing less.

To accomplish that goal the cops need to know only two things: (1) Who did it? and (2) Where can he/she be found?

In order to protect the public, the cops don't need to know the details as what happened that led up to the shooting.

Statements by the bleeding victim (1) identifying the perpetrator and (2) providing information on his whereabouts should be deemed nontestimonial, under the Davis primary purpose/ongoing emergency test. It doesn't matter if the victim subjectively believed that he was providing the cops with information that could be used in a subsequent case against the gunman, or if a reasonable victim in his position would have had such an understanding.

Statements providing details about what happened that led up to the shooting should be deemed testimonial, regardless of the state-of-mind of the cops or the victim (or their reasonable surrogates).

This "Who did it?/Where is he?" rule comports with Crawford & Davis. It is simple to understand. And it is easy for trial judges to apply to a wide variety of factual situations with consistency and uniformity.

If the Time Square bomb had gone off. And people were maimed. The victims statements at the scene to responding cops (1) describing who did it and (2) providing whatever information they could about his whereabouts (i.e., the direction he fled, on foot or in a vehicle, etc.) are needed to prevent harm to the public at large, in much the same way the cop's question in Quarles was needed to protect the public from a loaded gun.

With respect to the amicus submitted by the 35 states, I thought the Court in Crawford said that if a historical exception for testimonial dying declarations exist it is sui generis? If that is the case, why argue for the application of a historically-based excited utterance/res gestae exception? And, in any event, any such exception would only apply to statements made "immediately upon the hurt" being received. In Bryant, according to this amici, 30 minutes expired between the gunshot and the statements.

The Solicitor General recognizes that the Court will, once again, probably continue to take baby steps in its development of the testimonial doctrine. Thus, they don't ask the Court to use Bryant to issue any broad doctrine. Instead, they stick with a simple application of the Davis test and future case-by-case development.

Richard D. Friedman said...

I agree with Paul regarding the excited utterance argument in the states' brief. But I don't think his test squares with the legal issue at hand. A victim identifying the person who assaulted him some time before and is not at the scene is presumably trying to bring that person to justice. That's acting as a witness. Paul's test would satisfy the standard of "Let in just enough evidence to make sure the defendant can be convicted." I expect I'll have more to say in an amicus brief.