The Supreme Court handed down Michigan v. Bryant today, and it voted 6-2 (with Kagan recused) to allow police officers to testify about what a mortally wounded crime victim told the police about the identity and description of his shooter. The case involves the Confrontation Clause, and the issue is whether the statement of the individual who was not present and could not be cross-examined (being dead and all) could be admitted. The Court held that the statements could be admitted because they were not “testimonial” — their primary purpose was to enable police assistance to meet an on-going emergency. Justice Sotomayor wrote the majority opinion joined by Roberts, Alito, Kennedy and Breyer. Justice Thomas concurred, and both Justices Scalia and Ginsburg dissented.
The case seems destined to be known in part for its absolutely blistering solo dissent by Justice Scalia. Yes, it’s blistering even by Justice Scalia standards, perhaps because he was writing just for himself. I may as well get to that, as everyone else will. Here’s Scalia’s introduction:
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.
Also from the opinion:
[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Con- frontation Clause jurisprudence, at least where emergen- cies and faux emergencies are concerned. . . .Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by follow- ing today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.
And the conclusion:
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the proce- dures that our Constitution requires. And what has been taken away from him has been taken away from us all.
Byung Kyu Park says:
Um, I thought death-bed statements were one of the exceptions to the hearsay rule and were admissible. What was new about this case that wasn’t addressed before?
February 28, 2011, 2:03 pmOrin Kerr says:
From Footnote 1 of the majority opinion:
February 28, 2011, 2:07 pmSteve says:
The Court argues that even though the shooting had been completed, there was an “ongoing emergency” because no one knew whether the shooter was likely to kill someone else, whether he might pose a threat to first responders, etc. This reminds me of the widely accepted argument in the terrorism context which says that even if an act or attempted act of terrorism is in the past, we may still set the Constitution to one side while we interrogate the perpetrator because we urgently need to find out if other attacks are planned, etc.
I’m not saying there is no logic to this argument but it strikes me as a new, possibly post-9/11, paradigm. I don’t think the common law acknowledged the theory that every completed crime necessarily implies the possibility of additional crimes to be committed in the future, such that due process must take a back seat.
Having said all that, it seems like a procedural quirk that this case didn’t wind up as a routine dying declaration case. “The Supreme Court of Michigan held that the question whether the victim’s statements would have been admissible as ‘dying declarations’ was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances.”
February 28, 2011, 2:11 pmGov98 says:
I really admire Justice Scalia, have for a long time.
This opinion however does not reflect well on him. Even Thomas would not have gotten him from Point A to Point B.
He got a lot of good Confrontation Clause cases that went 5-4 with him writing, but the writing was on the wall in those cases, that it wasn’t going to get very far. He even did a great deal of good bringing the Confrontation Clause back to having useful and genuine meaning.
However, he let his interpretation of the Confrontation Clause be read a little bit too much in to what wasn’t said in his opinions. It’s no shock to see his interpretation not adopted. What is a little shocking is to see his not best behavior in accepting it.
February 28, 2011, 2:11 pmugh says:
Wouldn’t everything just make more sense if the Court did decide this case under the dying declaration exception even if it isn’t “properly before” the Court? Can’t the Court merely instruct the parties to argue that aspect?
And what is this Roberts case that Scalia is alluding to?
February 28, 2011, 2:14 pmByung Kyu Park says:
Ah, Thank you.
February 28, 2011, 2:15 pmOne Man's View says:
I pity the advocates in Bullcoming v. New Mexico — a confrontation clause case to be argued on Wednesday. Before this, I thought Bullcoming a slam dunk winner (his case looks an awful lot like Melendez Diaz). Now its a crapshoot.
February 28, 2011, 2:16 pmPass the Constitutional Mustard says:
That dissent was downright confrontational.
February 28, 2011, 2:17 pmOrin Kerr says:
I pity the advocates in Bullcoming v. New Mexico — a confrontation clause case to be argued on Wednesday. Before this, I thought Bullcoming a slam dunk winner (his case looks an awful lot like Melendez Diaz). Now its a crapshoot.
Interesting point. Although if anyone is ready for this, it’s Jeffrey Fisher, who I believe is arguing Bullcoming.
February 28, 2011, 2:20 pmA Non-E Mous says:
I imagine that he wrote it, then Justice Ginsburg opted not to join it. (As opposed to Justice Scalia setting out with the intention of writing it alone.) Justice Ginsburg’s incredibly brief dissent agrees with every point that Justice Scalia makes, while sanitizing it of its acidic value. She then adds a paragraph which, which even she admits, is actually irrelevant to the Court’s decision.
February 28, 2011, 2:21 pmSoronel Haetir says:
I wish the court would have passed on this for now and let the dying declaration hearing go ahead. The prosecution at time of trial had absolutely no reason to keep pressing on that issue, as they had their testimony admitted. Why now should the court make this fanciful leap just because the have a case in front of them? vacate the cert grant and see what happens with the hearsay remand (or is that entirely forfeited because after prevailing on a different ground, the prosecution didn’t keep trying to get the evidence admitted that way? If so, that is an entirely stupid rule of procedure. A party should be presumed to have preserved all unaddressed arguments when one of several favorable alternatives is accepted).
February 28, 2011, 2:24 pmMDubs says:
I sympathize with Scalia’s concern that the majority is letting pragmatic considerations eat away at the more absolute, arguably more brightline rule articulated in Crawford. I thought the Court might be headed in that direction when Scalia failed to get a majority for part II(D)(2) of Giles, wherein he took a “damn the practical consequences” approach to the Confrontation Clause. I guess I was right.
I think the ugly truth is that many judges see no purpose in the Confrontation Clause independent of the concerns that animate the hearsay rules. As a result, I would expect to see many more cases where the Court pokes holes in the Confrontation Clause in situations where the traditional hearsay rules would otherwise let the evidence in.
February 28, 2011, 2:26 pmSteve says:
Justice Scalia, making my point:
February 28, 2011, 2:27 pmGov98 says:
Interesting point. Although if anyone is ready for this, it’s Jeffrey Fisher, who I believe is arguing Bullcoming.
The problem for Bullcoming is, is that Thomas has NEVER expressed as expansive a view as Scalia, and Thomas may very easily peel off given the testimony of the supervisor. Confrontation has always been on shaky ground if you’ve ever read Thomas’ Concurrances, because he pretty much says Testimonial only applies to sworn declarations etc.
February 28, 2011, 2:43 pmOrenWithAnE says:
I wish Ginsburg had “Joined in the dissent, except that she wishes that Justice Scalia would take it down a notch.”
February 28, 2011, 2:43 pmKenveeB says:
This case struck me as a fairly straightforward application of Davis’s ongoing emergency rule. When the police come onto the scene where a person has been shot by an unknown person for an unknown reason, then it’s completely obvious the police will ask questions like “who shot you?” and “what does he look like?” for the purposes of figuring out what happened and responding to any ongoing threat. I don’t think any person in those circumstances would think that the purpose of the questioning is to set up a prosecution instead of respond to an emergency. It’s no different than a 911 call in that regard — yes, you might know that the statement could eventually be used to prosecute the guy, but you know the point of it is to fix the current problem.
I also agree that this should’ve been an even more straightforward application of the dying declaration principle. It’s a pity that wasn’t preserved. (I haven’t read the Michigan decision, so I don’t know if that was a bad ruling by the state court or a bad idea by the prosecution. But a pity regardless.)
February 28, 2011, 2:50 pmJohn Fever, MD says:
I wish Ginsburg had “Joined in the dissent, except that she wishes that Justice Scalia would take it down a notch.”
I would have preferred something like, “I join in the dissent, except for the parts that humiliate my colleagues for the silliness they have sponsored here. Such humiliation should be handled in private.” But, you’re probably right, Scalia has the more “appropriate” opinion in my view. However, his tone, while understandable, is a bit disappointing in this context.
To hit on a larger point, what should a Justice do when he/she feels her colleagues are completely off the rails in a given area of the law? Particularly so if the pattern persists over multiple cases and the results are substantial. That’s not necessarily a defense of this Scalia approach here, but I suspect the issue is a lot more difficult in practice than many would allow. Telling reasonable people they are being unreasonable- and trying to advance your argument and the same time- is not easy.
February 28, 2011, 2:54 pmKilroy says:
I hate agreeing with Thomas, but he does make for the simplest, more straight forward, and common sense test.
February 28, 2011, 2:58 pmChicago says:
Funny — didn’t Jeff argue Crawford itself?
February 28, 2011, 3:01 pmBrian Thomson says:
Perhaps the prosecution dropped the dying declaration argument because it was weaker. From the decision:
Dying declarations are admissible only if the victim believed he was dying when he made them. His anxious anticipation of EMS would support the conclusion that he believed he might survive.
February 28, 2011, 3:02 pmJust Dropping By says:
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution.
There’s a really snarky rebuttal to this statement that incorporates the phrase “new professionalism,” but I have a brief I need to get done today, so I’ll leave the heavy lifting to someone else.
February 28, 2011, 3:03 pmJosh Blackman says:
I have a recap of the opinion, and in particular Justice Scalia’s stinging dissent here: http://joshblackman.com/blog/?p=6221
February 28, 2011, 3:04 pmColin Miller says:
Here are my first two takes on the opinion:
First Take
Second Take
February 28, 2011, 3:24 pmFmrADA says:
I think this is right. The prosecution would have had to lay down foundational testimony in order to offer the statement as a dying declaration. If that foundation wasn’t laid at trial, there isn’t any re-do provision in criminal law. That’s a direct effect of the double jeopardy clause. The prosecution is stuck with its record, absent a mistrial.
But this just puts the focus back on the unworkable Crawford rubric in the first place. Thomas is correct that the “primary purpose” test is super wobbly. This reminds me of the search-and-seizure cases about when an officer can look in your backpack or an automobile’s back seat. Rules that come out differently based on very subjective line-drawing aren’t doing anyone except criminal defense lawyers any favors.
The confrontation clause actually has a vibrant life in co-defendant cases. The problem for the prosecution is that if you try two accomplices together, where one has made a post-Miranda confession, you end up with a situation in which the confession is admissible against defendant #1 and inculpates defendant #2, but defendant #2′s attorney can’t force defendant #1 to testify because defendant #1 has an iron-clad fifth amendment privilege not to testify against himself. Thus the two rights conflict with each other and the prosecution is forced to forgo introducing the confession, to try the defendants separately, or to impanel two jury panels (one for each defendant, and with one panel not hearing about the confession).
In my view, the confrontation clause jurisprudence should focus on reliability of the deceased’s statement, and then permit any kind of confrontation against the officer or other witness who heard the statement and testified to it. That’s where the majority seems to be headed.
February 28, 2011, 3:30 pmAndrew says:
In other words, straight back to the procedure that was in place under the reliability standard of Ohio v. Roberts, which Crawford overruled.
February 28, 2011, 3:34 pmColin Miller says:
Or, according to the vast majority of courts, the prosecution can just substitute a neutral pronoun for defendant #2′s name without any problem.
February 28, 2011, 3:43 pmDonM says:
Elementary probability suggests when the witness has a certain probability of being wrong (intentionally or unintentionally) and then a police officer acting as witness to the first’s testimony also has a different probability of being wrong, the combination required makes the reliability of the combined statement lower. The jury may perhaps be able to assess reliability of a witness that is before them, but would not be expected to able to assess reliability of a witnesses/police officer’s ability assess reliability. Of course if that was key, an experiment of the P.O.’s ability to assess reliability could have been performed. (say 12 persons, 6 of which tell lies, getting all right would be 2^12 or one chance in 4,096 if the officer has no ability). Another thing to consider is some people’s propensity to lie when excited, meaning that excited utterances, entered as legal hearsay should be graded down by the jurors, and perhaps even judges.
Judges should permit jurors to assess reliability, as jurors are triers of fact. In this case, the ability to determine if the primary witness was reliable, may have been worse for police officers considering the witness was injured, afraid, and the police officers were at least distracted by the “ongoing emergency”.
Again, Justice Thomas shows that he is the great man on this court.
February 28, 2011, 3:58 pmDjDiverDan says:
Two problems with this. First, dying declarations require proof that the declarant knew that he was dying. Second, and more fundamental, is the the Constitutional Limits of the Confrontation Clause are not coextensive with the Hearsay Rule. There are lots of things that might be admissible as evidence under various exceptions to the hearsay rule, but still testimonial in nature so as to be excluded under the Confrontation Clause.
While I’m not terribly bothered by the result reached by the majority in this case (primarily because, based on other evidence which was admissible, I’m pretty sure the Defendant “got his just desserts”), I also think that Scalia is right on the substance of the Confrontation Clause issue. Would the Court have reached the exact same result if the Police had gone to the alleged shooter’s house and found: (1) no bullet hole in the door; (2) no blood or bullett on the porch; and (3) no wallet or ID of the victim in the house? And if the Defendant was inside watching TV when the Police came, and he answered the door and told the Police ” I have no idea what you are talking about – I haven’t seen the victim in weeks.” Should the Defendant be convicted based solely on the supposedly non-testimonial “excited utterance” of a dying victim which is wholly uncorroborated by any physical evidence?
February 28, 2011, 4:03 pmCrazyTrain says:
I liked Ginsburg’s dissent — I could see her getting Scalia’s draft and just thinking there was no point in asking him to tone it down so she just decided to write separately saying she agreed with him.
February 28, 2011, 4:07 pmFmrADA says:
Yup. At least with respect to deceased declarants. Does this offend anyone’s view of the framers’ intent? I’m not saying that living declarants should not be subject to cross-examination merely because a police officer took down their testimony.
Now that’s something I wasn’t aware of when I was still prosecuting. Can you point me to an example? In return, here’s a blurb on a recent case in NY holding (although harmless) that confrontation was violated by just such a “pronoun” statement because the jury is not dense.
February 28, 2011, 4:08 pmhttp://lawprofessors.typepad.com/evidenceprof/2011/02/under-the-brutondoctrine-at-a-joint-jury-trial-the-admission-of-a-codefendants-confession-that-facially-incriminates-anothe.html
FmrADA says:
You mean: should a prosecutor bring a case based solely on a victim’s statement that is demonstrably false in at least two respects, uncorroborated by two more, and corroborated by nothing? I would hope for more prosecutorial integrity than that. And if not, then a better jury. And if not that either, then the problems in that county can’t be solved by the confrontation clause.
February 28, 2011, 4:15 pmNunzio says:
Anyone think this case would’ve come out differently if the victim had lived but refused to testify at trial?
Under the majority’s approach, the result will be the same.
February 28, 2011, 4:22 pmanon says:
This blog and the comments are a good example that a good blog is valuable because of the comments, not in spite of the comments.
Thank you all.
February 28, 2011, 4:26 pmOrenWithAnE says:
Or perhaps Ginsburg realizes that reasonable Justices may disagree (strongly!) about the law and that on occasion what may seem to own to be the correct view may seem to another to be entirely unhinged.
As such, “take it down a notch” is more of a functional exhortation.
February 28, 2011, 4:32 pmKL says:
Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? Federalist 48
February 28, 2011, 4:38 pmRepeated violations of these parchment barriers have been committed by overbearing majorities in every State.
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1937&Itemid=285 Writings of James Madison 269, 272 (G. Hunt ed. 1904)
Joe says:
The dispute between Scalia and Thomas on the true meaning of original understanding in this context is in itself interesting. Scalia provides a more “in the spirit of the provision” approach based on the reality of current police procedures that were not in place at the time of the Founding.
Scalia’s dissent is excited. For instance, if police were worried that the shooter was still nearby and could attack again, why wouldn’t they ask the person who would provide them key information? This also wasn’t hours after the events. The shooter wasn’t in some other county (he could have been blocks away). The idea he wouldn’t attack with cops around is not really convincing these days either. But, it is so patently obvious, right?
This sort of over the top hand wringing is disturbing. I do see Sotomayor v. Scalia sparring for years to come.
February 28, 2011, 4:47 pmMJW says:
If most murderers’ goal was not to kill a specific person, but instead to kill as many people as possible, Scalia would have no point. So since terrorists who, say, plan to bomb an airplane are seldom after that particular plane, but would as soon blow up another plane or a building, Scalia does not make your point.
February 28, 2011, 4:55 pmRoy Englert says:
As for the upcoming Bullcoming argument:
First, I think the advocates’ need to assimilate the result of Bryant into their thinking is probably why the Court took the very unusual step of issuing an opinion in an argued case on an argument Monday.
Second, Bullcoming is exactly like Melendez-Diaz — except, arguably, in the respect Justice Thomas (the controlling fifth vote in the majority in Melendez-Diaz) thought important, namely the formality of the analyst’s statement. So the outcome of Bullcoming has always been in doubt. Today’s opinion undercuts New Mexico’s position, in part, by reaffirming the test of Hammon v. Indiana, but bolsters New Mexico’s position, in part, by suggesting that the coalition of Melendez-Diaz dissenters plus Thomas plus Sotomayor may be a new majority in some (many? most? all?) cases of this sort.
Third, Jeff Fisher, who argued Crawford v. Washington, is indeed is very worthy advocate to represent Bullcoming. Jeff’s successes in this area in particular, and in other areas as well, are impressive. But New Mexico has a fine advocate too: its Attorney General, Gary King, a Ph.D. chemist as well as a lawyer. It should be a good argument.
February 28, 2011, 4:59 pmJay says:
The “new professionalism” was a reference to the behavior of police officers, not arguments made years later by a state’s lawyers.
February 28, 2011, 5:00 pmJay says:
The state lost before the Michigan Supreme Court. SCOTUS would never have taken the case on the state’s petition to reargue the issue of whether it had waived the dying declaration argument. It’s not even a federal question.
February 28, 2011, 5:02 pmSteve says:
Well, the terrorist is in custody, so it really doesn’t matter if he’d like to blow up some other plane. If the idea is that he might have accomplices, well sure, and so might any violent criminal.
Regardless, you seem to have taken my point to be something I did not actually say. There might be empirical support for the notion that we should set aside the Constitution in order to question every terrorist on the theory that there might be more attacks coming. But that sort of logic, which I referred to above as a new paradigm, is prone to mission creep. The case we’re talking about is an example of such, as Scalia aptly explains.
February 28, 2011, 5:03 pmMark N. says:
The part of the dissent that attacks a fake commitment to judicial minimalism seems like a pretty direct jab at Roberts/Alito, since the other four members of the majority don’t really profess to be judicial minimalists to begin with.
February 28, 2011, 5:03 pmPubliusFL says:
The Court says:
Just ask Susan Smith, Bethany Storro, Richard Heene, Charles Stuart, Bonnie Sweeten, etc.
February 28, 2011, 5:07 pmReaderY says:
The trial court made a mistake by not ruling on whether the statements were dying declarations or not. The Supreme Court should have addressed this mistake directly, perhaps by remand if possible for a determination of whether the statements were dying declarations.
If they were dying declarations, a traditional exception to the hearsay rule, Confrontation Clause law would not have been difficult and the statements would have been permitted under Crawford.
This said, I am otherwise inclined to agree with the dissent. Attempting to bend the Confrontation Clause to get around the trial court’s failure to make the appropriate determination is dangerous and a road the Court should have avoided starting down on. Justice Scalia’s dissent in Maryland v. Craig represents an important contribution to the legitimacy of Supreme Court jurisprudence, and subsequent relevations involving coaching of children to testify against alleged abusers underscores the importance of confrontation as a basic element of what it means to have a fair trial.
February 28, 2011, 5:35 pmReaderY says:
In short, I agree squarely with Justice Ginsburgs dissent. Dying declarations are a tradional hearsay exception surviving Crawford. If the prosecution in fact abandoned its right to claim the statements were dying declarations as a matter of Michigan state law and the point was made sufficiently clear below that remand for clarification is not available, then I would have to agree with Justice Ginsburg that the prosecution abandoned its right to have the statements admitted.
February 28, 2011, 5:44 pmDavid M. Nieporent says:
Well, the snark would more appropriately be directed at you in this case, for thinking snark to be a substitute for reasoning. Nothing in this case involves any wrongdoing or malfeasance on the part of police, so the “new professionalism” isn’t implicated in any way.
February 28, 2011, 5:46 pmNL says:
Man, this guy would’ve been pissed if he had read that “Necessary and Proper” concurrence to Raich that undermined Lopez and Morrison. That was another example of judicial reasoning to justify a predetermined result, even though it seriously confuses and circumvents legal precedent. Surely such a scathing dissenter could never brook such a betrayal as the Raich concurrence.
…wait.
February 28, 2011, 5:53 pmCrazyTrain says:
Yeah, let’s try to figure out what Queen Mary would have done and if it resembles that, it’s “testimonial”. Very simple indeed!
February 28, 2011, 5:55 pmCrazyTrain says:
Nope. There were 6 votes in the majority.
February 28, 2011, 6:00 pmBill says:
Typo in Scalia’s dissent. Should be “just desserts,” not “just deserts.” Or maybe he was punning about the Court’s deserting the Crawford decision.
[EV says: Maybe I'm missing the joke in your comment, but the traditional phrase is indeed "just deserts," i.e., those things that are justly deserved. Using "just desserts" in such a context, I believe, remains nonstandard (except as a joke.)]
February 28, 2011, 6:02 pmCrazyTrain says:
Fixed. I don’t think Justice Alito really purports to be much of a minimalist either. I am sure he said something boilerplate that could be read that way (ie, “judges should only decide issues before them”) in his confirmation hearings, but so did everyone else — Roberts is the guy who seems big on “minimalism”.
February 28, 2011, 6:03 pmCrazyTrain says:
And such a move by the Supreme Court would exceed its jurisdiction. The Michigan Supreme Court held, as a matter of state law, that the prosecution waived that argument. The US Supreme Court has no business telling the Michigan Supreme Court that it was wrong on its own law.
February 28, 2011, 6:05 pmGov98 says:
Nope. There were 6 votes in the majority.
Maybe I can’t count, but I count Breyer, Kennedy, Alito, and Roberts in Dissent…since 9-4 =5…I’m not sure where the 6th vote is.
February 28, 2011, 6:14 pmGov98 says:
Also regarding Melendez-Diaz, Stevens has since been replaced as well as Souter. Sotomayor and Kagan taking their spots.
How well does anyone here think Scalia did to “win friends and influence people” in the set up for New Mexico v. Bullcoming…in fact, one can easily think that Scalia has seen the writing on the wall from the conference in the Michigan case that Melendez-Diaz is going to be undone hence the “unrespectful” dissent, but it certainly doesn’t seem that he’s won Sotomayor to his side, or helping his side.
February 28, 2011, 6:32 pmAdam Sullivan says:
Civil liberties be damned – the state needs power in an emergency to protect all. And of course those powers should extend all the way to the courtroom so that the public can be assured of a restful sleep once the criminals have been locked away.
Works in China.
February 28, 2011, 6:43 pmWorks in Iran.
Why not here?
Roy Englert says:
There were only 5 votes in the majority in Melendez-Diaz: “SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.”
In fairness to the commenter who believes there were 6, however, he is in good company if he has trouble keeping track of Justice Breyer’s votes in this line of cases. At one point in the oral argument in Michigan v. Bryant, decided today, the following appears in the transcript: “JUSTICE SCALIA: I think your answer, counsel, is that we decided that in Crawford, from which Justice Breyer dissented.” Later: “JUSTICE SCALIA: Roberts. I’m sorry. Roberts, which — Reynolds was the Mormon case — which was about 25 years old or so when Crawford was decided, yes, hearsay was your protection, and that was it. But if by what you mean is in the past, Crawford examined the past, and its conclusion as to what the past said is quite different from what Justice Breyer now says, although he joined Crawford.”
February 28, 2011, 6:49 pmScalia smacks down Court says:
[...] Orin Kerr @ VC < confrontation clause, criminal procedure, evidence, Scalia, SCOTUS, testimony > « [...]
February 28, 2011, 7:10 pmGlen says:
More classics from Scalia’s dissent:
Cases like this show the true colors of the Justices.
Roberts, Kennedy, Breyer, Alito and Sotomayor: “We don’t need no stinkin’ Constitution.” We’re judges – we decide.
February 28, 2011, 7:42 pmJoe says:
Roberts, Kennedy, Breyer, Alito and Sotomayor: “We don’t need no stinkin’ Constitution.” We’re judges – we decide
As compared to interrogating a man in a hospital as he screamed in agony. How did Kennedy (Breyer, to a less extent) do there vis-a-vis Scalia?
[CHAVEZ V. MARTINEZ]
Sotomayor’s first dissent was respecting defendants’ rights. Scalia’s defense of constitutional liberty is not totally consistent. Other examples can be shown. His vote here is admirable, but let’s not get silly.
[A bit harsh, but I'm just using the Scalia model, toning it down a bit.]
February 28, 2011, 7:54 pmColin Glassey says:
I think the “on going emergency” exception based on the Davis ruling would seem to fit this situation. Personally I appreciate Scalia’s efforts to “save” the confrontation clause. However, with a man lying on the street, bleeding out, asking him “Who shot you?” and “What did he look like?” seem like reasonable questions. Does anyone really think that a person in that situation would think “OK, time to frame that OTHER guy whom I’ve always hated…”
The Michigan S.C. seems to take an unduly narrow reading of the Davis rule. My sense is the majority opinion here is reasonable.
February 28, 2011, 8:17 pmMJW says:
And if there were reason to believe the violent criminal’s accomplices were at the very moment endeavoring to kill other people, then the sort of emergency Scalia dismisses in the quoted section would certainly exist.
Scalia’s sole point in the paragraph you quoted was that it’s unreasonable to assume that because someone has committed a murder, a state of emergency exists because he or she would be ready to murder again. That’s precisely the point I addressed. If your point wasn’t that it’s unreasonable to assume that a terrorist involved in one plot would likely be involved in others, perhaps you should have quoted a different section from Scalia’s opinion.
February 28, 2011, 8:31 pmAnon21 says:
Why?
February 28, 2011, 9:07 pmSoronel Haetir says:
What if it’s a matter of mistake rather than malice? Plenty of the folks proven not to have committed the original crime were helped on their way to conviction by way of faulty witnesses (most of them testifying in good faith). If the declarant were to die under such circumstances the jury would likely be even more ready to believe that testimony than if it were presented in person by a comperable victim who happened to survive.
I think Scalia very much had the right of if when he said that the statements were made with the intent of starting the machinery of the state in motion against Bryant. They were not made, as with a 911 call, for the purpose of summoning rescue from an ongoing situation.
Admitting the statements made here is extremely dangerous because there is absolutely no way to test the truth of what is being offered (only the truth that the statements were in fact made).
February 28, 2011, 10:11 pmU.Va. Grad says:
I think it’s fair to say that the police were lying about their purpose for questioning the victim. The majority didn’t just invent that story out of thin air.
February 28, 2011, 10:17 pmSoronel Haetir says:
AFAICT the officers weren’t even really questioned on the point of why they were asking the questions they did. Given the law at the time of the crime and the time of the trial it wouldn’t have even been seen as an issue (remember, both were before Crawford). Just as the trial judge rightly ruled for the prosecution on the admissibility of the statements.
So yes, the majority did pretty much make up their fanciful tale in order to get the statements admitted.
February 28, 2011, 10:24 pmbahari says:
WCitations please! See Gray v. Maryland, 523 U.S. 185 (1998)
February 28, 2011, 10:47 pmJay says:
I don’t think it’s fair to say they were “lying;” I think the problem, as Scalia notes, is that cops in a situation like this surely have multiple purposes most of the time, and courts are able to emphasize the one they prefer in retrospect.
February 28, 2011, 11:29 pmOrenWithAnE says:
To which I think Holder’s “two team” interrogation technique is a particularly well-suited adaptation.
I don’t think the police questioned the man with any legal doctrine in mind at all. Their “purpose” was added in by the State later, as is customary in these cases.
The cops do what they are trained to do, the DA tells them why they did it later.
February 28, 2011, 11:41 pmEric Muller says:
We already know one thing about the Court’s next Confrontation Clause opinions: there is bull coming.
March 1, 2011, 12:09 amD.O. says:
And why this should matter? Whether the statement is testimonial or not depends on the statement itself, the person who gives it, and surrounding circumstances, not on what were in the heads of other people. Now, if police told the victim that they need his statement to apprehend/convict the guy it is important, but otherwise they intentions should not matter.
March 1, 2011, 1:01 amCornellian says:
One doesn’t often see a Scalia/Ginsburg combo as the 2 in a 6-2 decision.
March 1, 2011, 1:05 amwhit says:
it’s hardly new. let me give you an example from my academy oh so many decades ago…
criminal in possession of a handgun (robbery, whatever he is suspected of is irrelevant… he is running with a handgun) is chased by the cops, and at some point during the chase drops the gun.
by the time the cops catch him, the gun is gone. He’s in custody. need the cops mirandize him before asking him where he dropped the gun?
no
there is a continuing danger to the public (little kid finds the gun in his backyard) and that outweighs miranda.
March 1, 2011, 1:09 amOrenWithAnE says:
Yeah, they used to have JPS on defendant’s rights cases.
March 1, 2011, 1:18 ambSoronel Haetirb says:
Whit,
That hypo is far more contemporaneous than this. It is almost entirely within the bounds of the carve out created by the progenitor ongoing emergency situation case where the cops asked their suspect “where’s the gun?” basically immediately after subduing him.
At some point the emergency situation needs to be considered over even if it’s not resolved. I think the cop’s behavior in this case, as Scalia writes, pretty much points out that the emergency portion of the crime was over.
Now, I can imagine these same facts, a man found in a gas station parking lot, 20 to 30 minutes after being shot, and having the same sequence produce not-testimonial evidence. Say for instance “The guy who did this is holding my girl hostage at ….”. The goal there would in all honesty be to end an ongoing situation.
March 1, 2011, 9:00 amJoe says:
Anon21 says:
Joe: The idea he wouldn’t attack with cops around is not really convincing these days either.
Why?
Because certain criminals do not stop attacking when police are around. Police in fact have been known to be hurt in the process.
I listened to the oral argument and looked over the opinions. I still find it curious that Scalia seems to be assuming “obviously the danger is passed and they are merely investigating the crime.” Why? The shooter might be six blocks away. Wow. Six whole blocks! The majority and dissent also seem to be talking past each other on the time. Reading the majority, you get the idea the shooting might have happened minutes earlier. Scalia says about 1/2 hr. So, bleeding guy, shooter blocks away, shot very recently.
I am with Alito (and Kennedy) — I don’t understand the line being drawn by the defendant/dissent as to ongoing emergency vs. investigating the crime. If someone who shot someone minutes before (how long? who knows? you have to ask first) is blocks away (a minute away by car, a few minutes on foot … maybe closer since the guy was shot), it sounds like a possible ongoing emergency. I don’t know where the line is, but 1/2 hr and a few blocks away might not be it.
March 1, 2011, 9:27 amJoe says:
Yeah, they used to have JPS on defendant’s rights cases.
Scalia usually votes with Thomas, including when textual or originalist rulings help defendants. Here they split, which is somewhat atypical. Ginsburg has now recently dissented alone with … Thomas, Sotomayor and Scalia.
March 1, 2011, 9:30 amSoronel Haetirb says:
It’s not so much a distinction about emergency vs non-emergency as it is a distinction based on the purpose of the statements. For the dissent, as soon as the statements become about something other than rescue or mopping up the immediate scene the statements should be considered testimonial.
March 1, 2011, 9:40 amIspep Teid says:
Ignorance: The Emergency
March 1, 2011, 12:32 pmFmrADA says:
But this is precisely the problem with how the Crawford cases work. If the victim lives, then he testifies in court and there’s no confrontation problem. But if he dies, so sorry dear members of the public… his dying declaration (or excited utterance) would USUALLY be admissible because the law considers it prima facia reliable, but it was “testimonial” because the emergency was “over.” If only the cop had asked him the exact same questions within one minute of the shooting, not two.
This is a rare cul-de-sac of criminal procedure where even ideal police procedure cannot preserve otherwise-admissible evidence. That’s a bizzare result, constitutionally speaking.
March 1, 2011, 12:54 pmSoronel Haetir says:
I just see that as the price we pay for having the exception at all. The exceptions should be construed narrowly, not read broadly, lest they completely swallow the rule and leave us naked to the harm intended to be prevented. I think Steve’s example is pretty good for where this sort of thing leads.
Without being able to examine the atestant all we have is the cop’s word that is what the person said.
Now, I don’t think the results of such statements are poisoned. So evidence that the statements lead to should come in, like finding the gun in gas station corner or the house where blood and a bullet hole is found. But the statement itself should remain out of bounds.
March 1, 2011, 1:18 pmPublic Pretender says:
The dying declaration issue is a red herring in terms of the confrontation issues. If the alleged victim had lived, under the present factual scenario, he would not have been required to testify in order to admit his statements to police. He would not have been subjected to cross examination in order to determine the reliability of the accusation. A jury wouldn’t know whether he was a convicted felon. Jury wouldn’t know his biases and prejudices against the accused, if there were any.
In short, this ruling makes it perfectly acceptable from a confrontation clause and procedural due process standpoint, for police to obtain incriminating statements from people and the state never having to produce them at trial if the statements were obtained during an “emergency.” It deprives the defendant of his right to attack the veracity of the statements through cross examination even in cases where the declarant is available to testify. I can’t imagine a more fundamentally unfair process, but that process if precisely what could have happened in this case had the alleged victim survived.
Frankly, I am further befuddled that the court talked about reliability of a statement in the framework of confrontation rights. The entire point of confrontation is to examine the veracity of a particular statement once it has passed the initial hearsay threshold. The hearsay threshold is the first line of defense against unreliable statements. Confrontation is the second. I am very confused as to why the court seemed to merge the two when they are clearly so very different and separate inquiries.
March 1, 2011, 2:28 pmFmrADA says:
I don’t get it. Maybe I’m being dense. The issue here isn’t that the defendant can’t verify that the dead guy said X. It’s that the defendant can’t test whether X is true by cross-examining the deceased. In fact, if the policeman were inclined to lie, he would just add the necessary facts to give the statement an “emergency” flavor in order to sidestep the confrontation issue. (I recognize that this particular case was pre-Crawford, but I’m looking to the future.)
What in your view is the particular “harm intended to be prevented?” Right now, we’re talking about a per se reliable statement made to a police officer who is available to be confronted on the issue of whether he’s making up facts in the first place.
I don’t think this is so. The defendant can always subpoena the victim to testify. If the victim is somehow known only to the police, the defendant in most jurisdictions can obtain a “missing witness charge” that permits the jury to draw a negative inference against the side (prosecution) refusing to produce a witness in its control with material non-cumulative evidence. The victim in this case would clearly qualify, to the extent he was within the prosecution’s control.
March 1, 2011, 3:26 pmkarrde says:
To clarify, and add a mnemonic:
“Just deserts” is a piece of verbiage related to the phrase “just what is deserved”. The spelling has one ‘s’, because that is what it deserves.
March 1, 2011, 3:37 pmSoronel Haetir says:
The harm to be prevented is that we are admitting highly prejudicial material without any way to question the truth or lack thereof. Sure the guy said it, I’m not even disbelieving the cops on that point. What we have no way of testing is whether the deceased was truthful, mistaken, was mad at the accused or anything else. And that is part of why hearsay is so extremely dangerous.
I think the court was very much on the right path in Crawford when they supposedly ditched the whole reliability analysis and demanded confrontation.
March 1, 2011, 4:32 pmDrib says:
LAME.
March 1, 2011, 5:12 pmJimbeaux says:
Geez, will you take a xanax and just chill?
March 1, 2011, 10:01 pmI don’t like the opinion either, but I don’t think criminal defendants in Iran are worried because their high court is struggling with how to figure out what out-of-court statements are “testimonial.”
OrenWithAnE says:
There are all manner of cases in which a witness dies, leaves the country or gets a strange case of amnesia due through no fault of the police.
March 1, 2011, 11:46 pmHumpty says:
In this day and age, video and audio recording should be required in these kinds of situations to best reasonably meet the policies underlying the Confrontation Clause, and the Confrontation Clause should be interpreted to require video and audio record and to limit admissibility in Confrontation-Clause-applicable situations to what is actually on the recording. The video recording allows demeanor and capacity determinations. The audio will generally be where the testimony comes from. The investigators will not do this unless the Confrontation Clause is deemed to require it (in context of the modern world), which is exactly why the Confrontation Clause should be deemed to require it (in the context of the modern world).
Even these recordings should probably be excluded unless the testifier is shown to be dead or permanently incapacitated (and not merely unavailable).
No common sense at SCOTUS on this issue. Justices out of touch with real life leads to bad results.
March 2, 2011, 7:15 amAlan says:
Even though the dying-declaration issue wasn’t before the Court, I’ve had a nagging feeling since either Crawford or Davis (I forget which) that Scalia thinks the admissibility of dying declarations may be questionable under Crawford. If that’s true, then I think it’s Crawford that’s got to go, not dying declarations. Dying declarations, as the Court said in the late-nineteenth-century Mattox case, have been held admissible since time immemorial. I can’t imagine how any purported originalist could think their admissibility even open to question. But perhaps I’m not being fair to Scalia here; maybe I misread him.
March 2, 2011, 11:52 amanon1234 says:
Why are we so worked up about this when the Court has created a world where any random person may have a gun hidden somewhere on their person or near them so their 4th Amendment guarantees mean nothing.
March 2, 2011, 1:38 pmFmrADA says:
…and in those cases there is no otherwise-admissible evidence for the police to preserve. Typical witness statements to the police are inadmissible hearsay that no amount of savvy police work can transmogrify into evidence.
March 2, 2011, 2:08 pmJoe says:
It’s not so much a distinction about emergency vs non-emergency as it is a distinction based on the purpose of the statements. For the dissent, as soon as the statements become about something other than rescue or mopping up the immediate scene the statements should be considered testimonial.
It might be how I discussed it, but I’m not sure if this is different from my concern. My comments are based on the reality that this was not just a “mopping up” situation. If the shooter recently shot the person and is nearby, it can still be a “rescue” and “mopping up” implies the event is over. It might not be.
March 3, 2011, 8:41 amAlan says:
I find it a bit disturbing that Justice Scalia thinks there isn’t any emergency inherent in the situation of a shooter being on the loose. All right, so almost ninety percent of homicides, or murders, or whatever, involve a single victim. That just means that only a little more than ten percent of murderers won’t kill again very soon. It doesn’t mean they won’t do anything else we should be scared about, like stealing someone’s car or breaking into someone’s home to get away. Add that to the ten-plus percent to which Justice Scalia referred, and I think we’ve got a nontrivial problem. I’m sure that a lot more than ten percent do something very different from going home and immediately swearing off predatory acts against their fellow citizens. Besides, why isn’t a little more than ten percent enough, especially when we’re talking about a murderer (instead of, say, a shoplifter, for whom equal odds of immediate recidivism matter a lot less)? What is an emergency but the threat–not the certainty, but the threat–of future harm?
March 3, 2011, 10:51 amAlan says:
Untruthful? Mad at the accused? Are you kidding? The guy had been SHOT! Why would he want the cops to go after anyone but the shooter? Is he angrier with the accused than with whoever put a bullet in him?
You remind me of one of the Stu’s Views cartoons: “Before I die, I’d like to make some totally unfounded accusations against my husband.”
As for the possibility of mistake… you’re talking about someone who’s been shot, and doesn’t actually know who did it, but mistakenly thinks it’s someone he happens to know. That sounds very, very unlikely.
March 3, 2011, 11:51 amJL says:
Technically that shouldn’t make any difference in the court’s decision as long as the trier of fact returned a guilty verdict based on other facts on the record. It’s not the court’s job to second guess factual determinations, and the reliability of the declarant’s statement goes toward its weight, not its admissability (to quote an evidence law platitude)
March 10, 2011, 9:57 pm