Preliminary thoughts on the Bryant decision

Here are some preliminary observations on the opinions in Michigan v. Bryant. First, a brief review of the facts.

Responding to a 911 call, police found Anthony Covington on the ground near a service station in Detroit, profusely bleeding from a gunshot wound. As each officer arrived, he asked Covington what happened. Covington said that a man named Rick – the accused, Bryant – had shot him through a door at Bryant’s home, about six blocks away and 25 minutes earlier; Covington had managed to drive himself to the spot where he was found. Covington died several hours later of his wounds. Bryant was eventually extradited from California and tried for murder. The first jury hung, and a second one convicted him. Ultimately, the Michigan Supreme Court held that admission of Covington’s statements violated the Confrontation Clause. The United States Supreme Court has now reversed that decision, in an opinion by Justice Sotomayor. Justice Thomas concurred in the result (on the ground, expected given his prior expressions, that the statements were not formal). Justices Scalia and Ginsburg wrote separate dissents.

Now, two over-arching thoughts:

(1) I believe the decision is a very unfortunate development for the Confrontation Clause. The approach that emerges is remarkably mushy, unjustified by any sound reasoning and virtually incoherent. It leaves courts ample room in many types of cases to characterize almost any type of statement as non-testimonial. It will be easily manipulable by governmental authorities and at times may distort their behavior.

(2) I believe this decision is in large part a result of the Supreme Court’s error in unduly restricting the scope of forfeiture doctrine in Giles v. California. In this case, there was substantial evidence, easily enough to justify a finding, that Bryant had killed Covington and therefore that he himself was at least the initial cause of his inability to cross-examine Covington. Given Covington’s condition, his death within hours, and Bryant’s flight, it does not appear that there was a reasonable opportunity to mitigate the problem by arranging a deposition. Accordingly, a court easily could have held that Bryant forfeited the confrontation right – had Giles not foreclosed the possibility by holding that even a defendant who murders a witness forfeits the right only if he commits the murder for the purpose of rendering the witness unavailable. The bottom-line result of the Michigan Supreme Court’s decision – that Covington’s statements were inadmissible – is singularly unappealing at a gut level, and I think it was inevitable that courts would compensate for the unavailability of forfeiture in cases like this by narrowing the confrontation right. See my post of June 29, 2008, Reflections on Giles, Part 2: Is Giles bad for defendants?

Some more particularized comments:

For the first time, the Court has purported to give a broad, general approach to determining what is testimonial. It takes the “primary purpose” language of Davis and expands on it. Now, “primary purpose” is not simply a test to choose between whether a statement is testimonial or instead made in response to an “ongoing emergency”. Rather, it appears, the accused now has the burden of establishing that the primary purpose of the conversation in which the witness’s statements were made was to “creat[e] an out-of-court substitute for trial testimony.” Determining primary purpose is, of course, a very tricky matter, as Justice Thomas emphasized in his dissent in Davis and repeats here. Indeed, the concept is very difficult to nail down; if a person makes a statement for the purpose of creating trial testimony and also for another purpose, how do we determine which one is the primary purpose? By which one she would be more willing to give up if she had to choose? But beyond that, let’s say that we are able to analyze the situation precisely and conclude that 48% of the person’s purpose was testimonial and 52% not (sounds silly, I know, but it’s not my idea to determine which is primary); why is that not testimonial? I’ve argued elsewhere, and won’t repeat the argument here, that the real question is not purpose but anticipation. Justice Scalia’s dissent adopts this view. He tips his hat to his language in Davis by saying that for a statement to be testimonial the speaker has to intend to make a solemn declaration, but the test that carries the bite for him is whether the speaker has “the understanding that it may be used to invoke the coercive machinery of the State against the accused.”

The more serious problem is that the Court adopts what it calls “a combined approach” in determining the perspective from which the question of whether the statement is testimonial should be determined. That is, it looks to the purpose of both the speaker and the interrogator (if there is one). Now, I don’t think there is any real objection to taking all circumstances into account in determining whether a statement is testimonial, and if there is a questioner the purpose for which the questioning is conducted is certainly a factor that might affect the understanding of the speaker. But that is a different matter from what the majority does, which is to make the test an indeterminate combination of what did the speaker intend and what did the questioner intend: A court is supposed to determine “the purpose that reasonable participants would have had.”

That the proper perspective is that of the speaker – the lack of a testimonial purpose on the part of a questioner should not make a statement non-testimonial if the speaker knows she is creating evidence, and a questioner’s hope to gather evidence does not make another person’s statement testimonial (though in some cases of trickery an estoppel should operate) – is another point that I have argued repeatedly, and I won’t go through the matter again here. (For those who are interested: The majority cites my amicus brief as making an argument that it rejects, and Justice Scalia cites one of my articles, Grappling with the Meaning of "Testimonial", 71 Brook. L. Rev. 251 (2005), in agreeing with the point.)

But note two problems with the majority’s test. First, because the Court properly adopts an objective test, it cannot ask what the actual participants intended. It has to put it in terms of reasonable participants. But because it has phrased the test in terms of purpose rather than understanding, it has to ask a baffling question: What purpose would reasonable participants have had? The problem is that purpose is a matter of desire, not simply understanding, and equally reasonable people might have different desires in a given situation. So I guess what a court has to do is posit a reasonable person in the position of a participant and, drawing on all the facts of the incident, take a stab at guessing what the primary purpose of most reasonable people in that situation would be. That’s pretty awkward.

More seriously, what on earth could the majority mean by the combined purpose of “the interrogation”? Justice Sotomayor says that simpler is not always better, and that the Court is “unwilling to sacrifice accuracy for simplicity.” But accuracy in determining what? It appears to me that the majority has adopted a standard that is not only the wrong one but is really empty. As Justice Scalia points out, there is a glaringly obvious problem that the majority never touches on – what if the speaker has one purpose and the questioner another? That of course is entirely plausible, especially in cases like this one in which the statements are made right after police officers come up to a scene: It may be that the officers have little idea what is going on, whether a crime has been committed or whether there is a grave threat to the public safety, and yet the speaker knows perfectly well that a crime has been committed, that there is no imminent threat to the public safety, and that what she is about to say will provide information useful in bringing a criminal to justice but will have little value other than that.

So in a circumstance like that, what is a court supposed to do, given the Bryant decision. The majority denies that it “intend[s] to give controlling weight to the ‘intentions of the police,'” and that is good. But look what they did in this case. They emphasized at length the uncertainties and potential dangers facing the officers as they arrived at the scene. I don’t think that even so they are able to make a plausible argument that their “primary purpose” was to resolve an ongoing emergency – the officers were doing a lot of evidence gathering and not a whole lot of public protection at that point – but this is their best shot. As for the speaker, Covington, all the Court does is emphasize his dire situation at the time and pronounce conclusorily that it “cannot say that a person in Covington’s situation would have had a primary purpose to establish or prove past events potentially relevant to later criminal prosecution.” Well, why not? Badly as Covington was hurt, he was coherent in speech and seems to have been thinking straight. He was giving information describing the background and commission of a serious firearms assault. Presumably he was strongly motivated to see that the person who had shot him was brought to justice. And what else could he have been attempting to accomplish? The majority does not even offer an alternative suggestion.

So one of my concerns is that police officers will quickly learn that they can get statements characterized as non-testimonial if they testify, in effect, “I came up to the scene and didn’t know what was happening. My principal concern was securing the public safety. What this person told me was very important for that purpose.” They will also have an incentive to gather as much information as possible before the situation is fully under control; thus, the decision in this case distorts their incentives in performing their policing function. And once they do control the situation, if they can no longer make a credible contention that they had some primary purpose other than evidence gathering, then they can pass the witness – so I may continue to call the person who makes a statement while understanding its likely future prosecutorial use – on to a social worker, whose "primary purpose," of course, will be therapeutic, notwithstanding the fact that in performing that function she repeatedly learns, and relays to juries, information that turns out to be useful in prosecuting crime.

Perhaps in emphasizing some of the problems in this decision I am being unduly pessimistic. Perhaps the Court’s emphasis on the context-dependence of the determination of whether a statement is testimonial will ultimately limit the impact of the decision. Perhaps, indeed, this decision will be understood over time to be a product of the unfortunate inability of the Court to apply forfeiture doctrine to this case. Perhaps the Court’s insistence that the speaker’s intent is one consideration will become more important over time, and perhaps the Court will recognize what a giant opening for manipulation and distortion it has left by making the purpose of the questioner, when there is one, a significant factor.

What is more, there are a few good points in the decision. Establishment of an objective test was not a surprise, but the clarification is useful. The Court explicitly rejects the notion of an absolute formality requirement, even though it gives formality considerable force. It continues to preserve the possibility that statements made to persons other than government officials might be considered testimonial in some circumstances.

So we’ll have to see over time. But this decision strikes me as a giant step backwards towards a morass like that of Ohio v. Roberts, which gave the courts considerable leeway to let almost any statement in. Indeed, I have not even begun to address the jarring suggestions, which read at their most dangerous seem to augur a return of Roberts, that a factor in determining the Confrontation Clause issue may be the reliability of the statement and that hearsay law may be a guidepost in that determination. More on that later.