Monday, February 28, 2011
Bryant reversed
I have been out of electronic contact most of the day; presumably many readers already know that the Supreme Court reversed the decision in Michigan v. Bryant. A very unfortunate result. The vote was 6-2, per Justice Sotomayor (a surprise to me); the basis of the decision was that the primary purpose of the statements was to resolve an ongoing emergency (also a surprise to me). Justices Scalia and Ginsburg wrote separate dissents; Justice Scalia said that the decision leaves Confrontation Clause doctrine in “a shambles”. I will write more after I have had a chance to read and absorb the opinions.
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9 comments:
I find this language particularly stunning:
"This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements 'relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition' are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood....An ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency."
Isn't this exactly what Crawford ruled against?
This language is also troubling:
"But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause."
Based on the language of the decision, I'd say they are laying the ground work to start moving back to Ohio v. Roberts.
I'll say more later, but: Yes, that sentence about standard rules of hearsay as a guidepost is very jarring. Why are they relevant unless the need is to determine whether the statement is reliable? I'm not sure what to make of the other passage. Maybe it is an attempt to introduce an excited utterance exception into Confrontation Clause law, maybe not. It is true that the emergency doctrine results in giving a pass to many of the same statements that fall within the excited utterance exception.
More later.
I think in some critical ways Scalia and Ginsburg have it right. For me the strangest part was not the big issues of the case but the resurrection of reliability, i.e. that confrontation is sometimes not required "because the prospect of fabrication in statements given for the primary purpose of resolving [an] emergency is presumably significantly diminished..." (and the rest of the reliability discussion in III.B.). That seems to be a retreat back towards the Roberts reliability notion, but the majority opinion does not seem to treat it as such - it just mentions it and moves on. As Scalia and Ginsburgy note in their separate dissents it seems to distort Davis and Crawford without explanation.
Crawford's short-lived expanding universe is shrinking into the very narrow black hole of Raleigh's case.
Looks like the Melendez-Diaz dissenters found their fifth vote. Will Justice Kagan join the party in Bullcoming?
There can be no doubt, the analyst in Bullcoming who scribbled ".21 BAC" from the machine is no Cobham.
What Justice Sotomayor wrote on pages 11-12 (before the "Deciding this case also requires" transition) is a tremendous blow to anyone advocating for a broad interpretation of the term "witnesses" in the CC.
Mr. Bullcoming has a huge uphill (if not insurmountable) battle.
At least the Court gave him a heads-up by handing down Bryant before oral argument.
Your thoughts, Prof. Friedman?
I will try to post a set of comments on the majority opinion within the next 24 hours. But I will say now that, unfortunate as this decision is, it has little or nothing to do with Bullcoming. There is no doubt in that case that the statement in issue was prepared for use in litigation.
I agree that the substance of Bryant does not speak to the issue in Bullcoming. As the Prof says, the "primary purpose" of the statement in Bullcoming is not really at issue (the Court would have to overturn Melendez-Diaz to find a non-testimonial purpose). However, Bryant appears to indicate that the majority of justices will be gunning for ways to get around Crawford/Melendez-Diaz. I would be not at all surprised if the Court turns to evidentiary law to support a conclusion that surrogate testimony is good enough for CC purposes. Further, I think any future case bringing a Crawford/M-D challenge to statements introduced as expert basis evidence (FRE 703 and state equivalents) is probably dead on arrival.
Many scholarly commentators on the Volokh Conspiracy bog (volokh.com) agree with me that the far-reaching language in Bryant will impact Bullcoming. (Something that my previous postings on The Confrontation Blog predicted would occur.)
First, the objectively assessed primary purpose of the analyst writing ".21 BAC" (after the police asked him to analyze the suspect's blood sample) was not to establish or prove "past" "events" potentially relevant to later criminal prosecution.
His ".21 BAC" statement was made contemporaneously (or near contemporaneously) with the machine-generated result. It was not a recording of a "past" event as that term was used in Bryant, Davis, Hammon, Giles or Crawford.
Also, there was no interaction between two humans resulting in an "event," as that term is used in Crawford and its progeny.
Finally, and I believe most importantly, there is absolutely no resemblance between the machine-generated circumstances that resulted in the creation of the analyst's ".21 BAC" statement and the circumstances in Raleigh's case. (See Bryant @ page 11, in particular footnote 4, and Justice Thomas' concurring opinion adopting the "resemblance test," that I argued for in an amicus brief in People v. Cage (2007) 40 Cal.4th 965.)
The analyst who wrote ".21 BAC" was not a CC "witness." His statement was not testimonial.
Similarly, the results obtained by a DNA analyst (concerning the presence of DNA on crime scene evidence and its match to a defendant), a ballistics expert (concerning the match between a weapon and a bullet found at the crime scene), and/or a pathologist (concerning a victim's cause of death) are nontestimonial statements by persons who are not "witnesses" (conventional or otherwise) within the meaning of the CC. None of them remotely resemble Raleigh's accuser, Lord Cobham, or the circumstances that produced his accusatory ex parte statements.
Bullcoming will be a 7-2 opinion in favor of New Mexico. In light of Justice Kagan's comments at her confirmation hearing regarding Justice Scalia and his so-called wooden approach to the CC, I believe she will join the Bryant majority. Justice Kennedy will write the opinion overruling Melendez-Diaz.
I don't believe it for a minute. The analyst's report as to what he did and what the machine showed is essentially the same as the report in Melendez-Diaz. Sotomayor has already shown no disposition to overrule that case.
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