The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.
First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one. Nobody disputes that. But the state conflates the subjective-objective question with the entirely different (I will resist the temptation to call it orthogonal) question of the perspective from which the determination should be made. For various reasons that I have summarized in several places, including this blog and my amicus brief in Bryant, I believe it is important that the determination be made from the perspective of the speaker. The state equates a speaker-oriented determination with a subjective one. But that equation does not follow: The proper question, I believe, is what the anticipation would be of a reasonable person in the position of the speaker.
Note that to say that the determination is objective does not avoid the question of asking this question: On the basis of what body of information is the determination made? It makes no sense (again, I will not review the reasons here) for that body of information to be what was available at the time to the police interrogator, even assuming there is one. Rather, the body of information should be what was available at the time to the speaker. A subjective determination would ask: What was the speaker’s purpose (or anticipation) when he or she made the statement? An objective test asks a question like this: Would a reasonable person knowing the information available to the speaker at the time anticipate the statement would be used in investigating or prosecuting the crime?
As I see it, the only way the state could have even a hope of victory is if the Court were to adopt (or implicitly apply) an interrogator’s perspective – that is, basing the determination on the information available to the interrogator at the time of the questioning. Thus, I think this case – more than Crawford, Davis, Hammon, Melendez-Diaz, or Briscoe – may provide a vehicle for deciding the perspective question. But the Court need not decide that question; it could well decide that even from the officers’ perspective it was clear from the outset that the conversation was not designed to relieve an emergency but to assist in prosecution of a crime.
The state’s second main point in its reply is that the emergency doctrine of Davis is not limited to criminal events. But even assuming that is so, it should not help the state. The victim’s statements did not – and were not reasonably calculated to – assist treatment of his medical condition. They were clearly likely to be used to assist in prosecution of the crime (and were so intended).
Finally, the state engages in a debate with Bryant over the contours of the res gestae exception to the hearsay rule. The doctrine is a 19th century creation, long post-dating the Confrontation Clause. Over the course of that century – far too late to be of assistance to the state – the courts loosened up in admitting statements made some time after the incident. Indeed, the significance of this line of cases is that at the time of the Clause and for decades after – even after the broad and newly developing rule against hearsay began to shroud the principle underlying he confrontation right – courts did not admit statements describing past criminal activity, even though the interval was very short. The fact that by the time they did start doing so they tended to talk in terms of the rule against hearsay rather than of the confrontation right is of no assistance here to the state.
