Monday, October 11, 2010
Audio recording in Bryant
I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.
Thursday, October 07, 2010
Reactions to the Bryant argument -- Part 2
Here are further comments on the Bryant argument.
The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.
The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .
Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)
Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).
Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.
Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.
That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.
The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.
The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .
Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)
Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).
Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.
Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.
That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.
Wednesday, October 06, 2010
Reactions to the Bryant argument -- Part 1
I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I’m posting this so I don’t have to wait til I’ve written everything.
More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.
Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.
There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.
The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.
Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.
History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).
It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.
Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.
Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.
That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.
More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.
Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.
There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.
The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.
Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.
History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).
It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.
Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.
Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.
That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.
Tuesday, October 05, 2010
Bryant Transcript
The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.
Sunday, October 03, 2010
Bryant argument on Tuesday
Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter.
First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.
The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.
The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.
In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.
Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.
It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.
As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.
Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.
First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.
The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.
The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.
In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.
Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.
It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.
As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.
Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.
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