Michigan v. Bryant: The Ghost of Roberts and the Return of Reliability

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In Crawford v. Washington, the United States Supreme Court radically transformed its Sixth Amendment jurisprudence and overturned the quarter-century-old framework established by Ohio v. Roberts.The Court, in a unanimous decision, held that the Sixth Amendment’s Confrontation Clause barred the admission of out-of-court “testimonial statements” where the declarant is unavailable at trial and the defendant had no prior opportunity for cross-examination.  Crawford divorced the Confrontation Clause from the exception ridden hearsay rule and restored it to preeminence among the rights of the accused.

While some described the Crawford decision as “revolutionary,” the Court’s opinion left open the meaning of testimonial and consequentially created uncertainty and confusion in the criminal justice community.  Accordingly, the Supreme Court’s Confrontation Clause cases since Crawford have had the narrow focus of attempting to define the term “testimonial.”  The most recent of these cases, Michigan v. Bryant, marked a retreat from Crawford’s testimonial approach, and reintroduced the Roberts era preoccupation with reliability.

In Bryant, police officers responded to a report of a shooting. Upon arriving at the scene, the police found Anthony Covington lying next to his car in the parking lot of a gas station.  Covington was bleeding from a gunshot wound in his abdomen and appeared to be in serious pain.  The police officers asked him “”what had happened, who had shot him, and where the shooting had occurred.'”Covington, speaking with difficulty, told police that “”Rick [Bryant]‘” had shot him in the backyard of Bryant’s house.  Although he had not seen Bryant, Covington claimed he had conversed with him through Bryant’s back door.  “Covington explained that when he turned to leave, he was shot through the door,” causing him to flee in his vehicle and pull over at the gas station.  Covington’s conversation with police lasted only a few minutes before paramedics arrived and transported him to the hospital, where he died a few hours later.

At Bryant’s trial, the police officers testified to the statements made by Covington at the gas station.The jury found Bryant guilty and convicted him of second-degree murder.Bryant appealed his conviction, arguing that the trial court violated his Sixth Amendment right to confrontation in admitting Covington’s statements to police.The Michigan Court of Appeals affirmed the conviction and Bryant renewed his arguments to the Michigan Supreme Court.That court remanded the case for reconsideration consistent with the U.S. Supreme Court’s decision in Davis v. Washington.On remand, the Court of Appeals affirmed, holding that Covington’s statements were not testimonial and therefore properly admitted.  After another appeal, the Michigan Supreme Court reversed the lower courts, holding that Covington’s statements to police were “inadmissible testimonial hearsay.”

The U.S. Supreme Court granted certiorari to “determine whether the Confrontation Clause barred admission of Covington’s statements.”In a 6-2 decision authored by Justice Sonia Sotomayor, the Court held that the primary purpose of Covington’s interrogation was to allow officers to meet an ongoing emergency.Covington, therefore, did not bear testimony against Bryant when speaking to the police, and the admission of his statements did not violate the Confrontation Clause.

This comment contends that the Bryant decision contradicts and undermines recent Confrontation Clause jurisprudence in two ways. First, it shifts the focus of the Davis “primary purpose”inquiry to the situation, the interrogators, and the reliability of statements expressed during emergencies, rather than focusing on the purpose of the declarant.Underlying this shift is the Court’s presumption that statements made during an “ongoing emergency” are inherently reliable and need not “be subject to the crucible of cross-examination.”This implicit addition of the excited-utterances hearsay rule into the Constitution creates a vast exception to the confrontation right for statements made to police during emergencies. Second, the majority’s decision requires highly subjective, “context-dependent inquiries” into the circumstances of each particular case when determining whether an “ongoing emergency” was present.The Bryant Court’s unpredictable and complicated “emergency” framework sets a perilous standard for the prosecution of allegedly violent criminals, allowing too much deference to the judiciary and creating perverse incentives for police investigating violent crimes.

In Part I, this comment will trace the modern changes in Confrontation Clause jurisprudence by giving a brief overview of three landmark decisions: Ohio v. Roberts, Crawford v. Washington, and Davis v. Indiana.  Part II of this comment will analyze how the Bryant court has returned, in part, to the convoluted reasoning of Roberts and will examine the negative consequences likely to follow. Part III will explore the recent treatment of Bryant among the lower courts and suggest an alternative based on state constitutional grounds.

Jason Widdison, Michigan v. Bryant: The Ghost of Roberts and the Return of Reliability, 47 Gonz. L. Rev. 219 (2011)

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