In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.
Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.
A jury convicted Bryant of murdering Covington. Police testified that they received a dispatch that a man had been shot. They found Covington bleeding from a fatal stomach wound at a gas station. When officers insightfully asked “What happened?”, Covington replied that Bryant had shot him through the door of a house some blocks away from the gas station. He repeatedly identified Bryant as the shooter before medical help arrived; Covington died a short time later at a hospital. The key issue at trial was the identity of the shooter. The trial judge admitted Covington’s statements to police implicating Bryant as the shooter behind the door.
What’s confusing you ask? Well, Bryant’s trial occurred under the aegis of Ohio v. Roberts, a 1980 case which held that only “reliable” hearsay could be used against an accused at trial. Under Roberts, Bryant’s conviction comported with his Sixth Amendment right to confront his accusers. In 2004 the Supreme Court overruled Roberts and most (not all) of its progeny because Roberts rested on an erroneous, or so we’re told, understanding of the confrontation right. That 2004 case, Crawford v. Washington, held that the confrontation right applied only to “testimonial” hearsay, a term it declined to define. Testimonial hearsay could be used against the accused only if he had a prior opportunity to cross-examine the hearsay declarant and that declarant was unavailable to testify. Nontestimonial hearsay is largely left to the rules of evidence.
Bryant appealed his conviction on grounds that Covington’s hearsay statements to police violated the Crawford rule. Since it was undisputed the Bryant had never cross-examined Covington before his death (duh), Michigan’s supreme court reversed the murder conviction because it found the hearsay “testimonial.” The Supreme Court granted certiorari.
To many observers, Bryant promised to illuminate a possible dying declaration exception to the Crawford rule that had cropped up in earlier dicta, much as the Court had fleshed out an exception for “forfeiture by wrongdoing” several years ago in Giles v. California, 554 U.S. 353 (2008). Instead, the Court sidestepped the dying declaration exception on grounds that Michigan had abandoned it, ruling instead that Covington’s dying responses to police questioning about his killer’s identity were not “testimonial” in the first place. In sum, the Michigan court erred because Bryant’s confrontation right did not attach to Covington’s hearsay.
The rambling majority opinion by Justice Sotomayor heroically attempts to guide us to an understanding of what constitutes testimonial hearsay, at least in the context of “a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpretrator whose location was unknown at the time the police located the victim.” Whew. Space limits preclude any full elaboration, yet three points stand out. First, testimonial hearsay’s essence turns on whether the declarant’s “primary purpose” was to provide “evidence” (my word) for a criminal investigation or prosecution. Second, the primary purpose is determined objectively; the declarant’s subjective (“actual”) motives are not controlling. Third, this objective approach is based on the totality of the circumstances, which means that we must look at literally everything. And the combination of these three elements – “primary purpose,” objective assessment, totality of the circumstances – spells only one thing: the standard for testimonial hearsay is manifestly uncertain, offering little, if any, predictive value.
If Crawford offered hope for criminal defendants that there was some rigor in the confrontation right, Bryant invites prosecutors to litigate the threshold issue of whether the hearsay is testimonial in a breathtakingly wide array of cases. In other settings the Court has decried “litigation lotteries” advocated by the defense (e.g., the “no knock” cases), but Bryant provides little incentive for prosecutors not to litigate this issue.
In separate dissents, Justices Scalia and Ginsburg both conclude that Covington’s statements were clearly testimonial hearsay and that Bryant effectively creates a gaping, unworkable exception for “violent crimes.” I agree. Who knows where the next iteration of confrontation case law will take us. This week the Supreme Court is hearing yet another case involving a crime lab report’s admissibility under the confrontation right, fittingly entitled Bullcoming v. New Mexico (argued March 2, 2011). Tellingly perhaps, the Bryant majority left the backdoor wide open for a retreat when it observed that the Bryant record, which predated Crawford, “was not developed to ascertain the ‘primary purpose of the interrogation.’” Stay tuned, there’s always (more) “Bullcoming.”