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Argument preview: The Court considers the Confrontation Clause again

Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to cross-examine any witness who testifies against him.  In limited circumstances, witness statements can be presented at trial even when the witness is unavailable for cross-examination.  In Davis v. Washington (2006), the Supreme Court held that a statement by a witness is “non-testimonial” – such that the Confrontation Clause is not violated if a defendant cannot cross-examine that witness – if it is “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”

On October 5, in Michigan v. Bryant (09-150), the Court will consider whether a statement made to police officers by a shooting victim who later died was properly admitted at the murder trial of respondent Richard Bryant.


In 2001, Detroit police officers responding to a call found Anthony Covington lying beside his car at a gas station with a gunshot wound in his abdomen.  In response to questioning, Covington indicated that he had been shot six blocks away and thirty minutes before by a person named “Rick,” and had driven himself to the gas station.  He gave the address of Richard Bryant’s residence as the scene of the crime.  Covington was eventually taken to a hospital, where he died several hours later.  At Bryant’s murder trial, Covington’s statements to police were admitted as “excited utterances,” and Bryant was convicted.

Bryant appealed his conviction on the ground that the prosecutor’s use of Covington’s statements at trial violated his Confrontation Clause rights.  The Michigan Court of Appeals upheld Bryant’s conviction, but the Michigan Supreme Court reversed.  The state filed a petition for certiorari seeking review of the state court’s decision; the Court granted the petition on March 1, 2010.

Michigan’s arguments

In both its petition and its brief on the merits, Michigan asserts that the “ongoing emergency” required by Davis is not limited to the crime itself, but instead also extends to other emergencies resulting from that crime, including “situations in which the declarant or officer is in danger, either due to a medical emergency or because the perpetrator poses a threat.”  Here, Michigan contends, Covington’s wound created an ongoing medical emergency.  Moreover, even after paramedics were dispatched, another emergency persisted: an unknown, armed perpetrator who posed a further threat to the officers, the victim, and the public in general.  To assess the level of danger and effectively defuse it, the police needed to know at least whether the shooter was in the vicinity, whether he intended further violence, and whether he had shot anyone else.  Their interrogation of the victim about the nature and location of his shooting was intended to elicit that information; indeed, the victim’s statements in response to the police questioning helped law enforcement officials to capture the shooter.

In the state’s view, whether a statement by a witness was made to “meet an ongoing emergency” turns on the circumstances under which the interrogation happened, rather than on the substance of the statement.  Thus, a statement is classified as “testimonial” if it is “given with a view toward recording the declarant’s version of events that have already transpired, for purposes of memorializing them.”  By contrast, Covington’s identification of “Rick” and the place of the shooting was a “spontaneous statement” made during, and as part of, the emergency.

Bryant’s arguments

In his brief on the merits, Bryant counters that an emergency is “ongoing” only if a crime is in progress.  In particular, he emphasizes the facts of his case:  Covington had told police that the shooting had occurred nearly thirty minutes ago, several blocks away.  Nor did the actions of the police reflect any sense of any emergency on their part:  the police did not draw their weapons or attempt to secure the gas station, they did not call for assistance until they reached Bryant’s residence, and they did not attempt to question anyone other than Covington at the station.  The only emergency that had existed was the shooting itself, and that crime had concluded by the time the police arrived at the gas station.

Bryant criticizes the state’s interpretation of an “ongoing emergency” – as extending to situations in which a perpetrator is still at large – as overly expansive; in his view, it could exempt from cross-examination any witness statements made under police interrogation while a perpetrator is still at large.  Instead, he contends, an inquiry into whether a statement is testimonial should turn on the substance of the witness’s statement and his motivation for providing the statement, rather than on the questions he was asked or the circumstances in which he was questioned.  Thus, a witness statement is testimonial if it merely provides a narrative of past events and does not seek assistance to meet a current or imminent threat.  In this case, because Covington simply narrated facts about past events only, without seeking help from police, his statements were testimonial.

In its last case involving the Confrontation Clause – its 2009 decision in Melendez-Diaz v. Massachusetts, holding that the admission of laboratory reports prepared by a state forensic analyst, without testimony from the analyst, violated the Confrontation Clause – the Court was closely divided in a somewhat unusual line-up:  Justices Stevens, Souter, Thomas, and Ginsburg joined a majority opinion by Justice Scalia, while Justice Kennedy wrote a dissent that was joined by the Chief Justice and Justices Breyer and Alito.  With the retirements of Justices Stevens and Souter and the recusal of new Justice Elena Kagan (who as Solicitor General was counsel of record in an amicus brief on behalf of the United States), the views of Justice Sonia Sotomayor – who has served as both a prosecutor and a trial judge – may play a key role in the disposition of the case.