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Argument recap: Court struggles to define “non-testimonial” statements

Four years ago, in Davis v. Washington, the Supreme Court held that a statement resulting from a police interrogation may be presented at trial, even if the witness is unavailable to testify, if its “primary purpose” was to meet an “ongoing emergency.”  At Tuesday’s oral argument in Michigan v. Bryant, the Justices – with Justice Kagan recused – expressed deep discontent with that opinion and seemed poised to refine it.  They repeatedly asked counsel on both sides to propose a constitutional rationale for the rule, but seemed unsatisfied with the answers.

Lori Palmer, representing the State of Michigan, contended that responses to police questioning should be admitted when the questions were designed to assess the risk at a crime scene.  Justice Scalia, the author of Davis, worried that such a rule would admit an enormous number of statements, because any questions asked by the police at a crime scene could be construed as assessing risk.  Justices Ginsburg and Sotomayor agreed that although some questions might on their face appear designed to assess risk, they might have a dual motive of collecting evidence.   Only Justices Kennedy and Alito displayed sympathy toward the police, with Justice Kennedy stating:  “you do not know if the man is running amok and threatening to shoot other people.”

In Bryant’s case in particular, Justice Scalia rejected the idea that the questions by police officers were intended to assess risk to the officers and the public.  Several of the other Justices agreed throughout the argument, adding that the police did not “look around to see if anybody was lurking in the bushes” and that few members of the public were about.

Both Justices Kennedy and Sotomayor pressed Palmer to concede that the underlying rationale for the “ongoing emergency” rule was actually reliability, because statements made with the intent of stopping an emergency are more likely to be accurate.  (Justice Kennedy admitted that this argument was rejected in an earlier case, Crawford v. Washington (2004).)  However, Palmer declined to do so.

Leondra Kruger, the Acting Deputy Solicitor General arguing on behalf of the United States, framed the admissibility criterion slightly differently: statements made to police would be excluded only if they were intended to collect evidence for a future prosecution.  As with Palmer, Justice Scalia was not satisfied with this framing, questioning any meaningful distinction between collecting evidence for a future prosecution and collecting evidence to pursue and arrest a felon.  Kruger explained that the distinction holds if pursuing and apprehending a felon would “neutralize an ongoing threat” to the public.  Scalia balked: “That’s such a phony evasion of what the purpose of a testimonial rule is.”  The threat to the public, he said, is “always going to be the case, at least when there is a violent crime.”

At Justice Kennedy’s request that she, too, articulate an underlying rationale for the “ongoing emergency” test, Kruger contended that a person in a formal interrogation will have a “focused understanding” that their testimony could be used for trial that someone who is informing the police about an ongoing emergency will not.  Chief Justice Roberts pointed out that this rationale contradicted the state’s earlier argument – i.e., that the admissibility inquiry should focus on the intentions of police officers.

Peter Jon Van Hoek, arguing on behalf of the respondent, offered his own rationale for the ongoing emergency rule:  a declarant speaking to the police during an emergency is not trying to testify.

Van Hoek met fierce resistance when he tried to confine “testimonial” statements to statements about past events.  Adopting a hypothetical suggested by Justice Alito, Van Hoek initially drew the line between two different declarations, comparing “he’s hitting me with a baseball bat,” with “he just hit me with a baseball bat and he just left.”  But after an extended discussion and series of hypotheticals between the Chief Justice and Justices Alito, Scalia, and Kennedy, Van Hoek conceded that more context would be needed to determine whether a declaration about past events was properly testimonial.

Initially, Justice Breyer seemed worried that the ongoing emergency rule might not admit enough hearsay.  When Van Hoek mentioned Crawford, which greatly constricted the availability of hearsay for trial, Justice Breyer quickly moved in: “Of course what I’m looking for now is whether there is any sense to that [exclusion of hearsay]?  What is the constitutional rationale?  I agree on joining Crawford, but I have to admit to you I have had many second thoughts when I’ve seen how far it has extended.”  Several other Justices intervened before Breyer received a response.   However, it became clear toward the end that Breyer may have been concerned about hearsay outside of the police interrogation context.

When Justice Breyer pressed Van Hoek again at the end of his argument for a deeper principle underlying the Davis exception, Van Hoek conceded that “…there is nothing more than the emergency rule.”