{"id":12948,"date":"2011-03-03T10:07:49","date_gmt":"2011-03-03T15:07:49","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=12948"},"modified":"2011-03-03T10:08:35","modified_gmt":"2011-03-03T15:08:35","slug":"more-%e2%80%9cbullcoming%e2%80%9d-the-court-courts-confusion-in-confrontation","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/03\/more-%e2%80%9cbullcoming%e2%80%9d-the-court-courts-confusion-in-confrontation\/","title":{"rendered":"More \u201cBullcoming\u201d? The Court Courts Confusion in Confrontation"},"content":{"rendered":"

\"\"<\/a>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 \u201cthe way\u201d through the swamp. Like a child\u2019s 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.<\/p>\n

Of the three metaphors I used in the preceding paragraph, a \u201ctrain wreck\u201d is the most apt way to describe Michigan v. Bryant<\/a><\/em>,\u00a0the Supreme Court\u2019s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment\u2019s confrontation right. \u201cSwamp\u201d and \u201ckaleidoscope\u201d are apt, but \u201ctrain wreck\u201d best captures the real cost of confusion. Bryant<\/em> not only failed to illuminate a much-rumored \u201cdying declaration\u201d exception to the confrontation right, it also raises considerable confusion about what constitutes the \u201ctestimonial hearsay\u201d 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.<\/p>\n

<\/p>\n

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 \u201cWhat happened?\u201d, 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\u2019s statements to police implicating Bryant as the shooter behind the door.<\/p>\n

What\u2019s confusing you ask? Well, Bryant\u2019s trial occurred under the aegis of Ohio v. Roberts<\/em>, a 1980 case which held that only \u201creliable\u201d hearsay could be used against an accused at trial. Under Roberts<\/em>, Bryant\u2019s conviction comported with his Sixth Amendment right to confront his accusers. In 2004 the Supreme Court overruled Roberts <\/em>and most (not all) of its progeny\u00a0 because Roberts<\/em> rested on an erroneous, or so we\u2019re told, understanding of the confrontation right. That 2004 case, Crawford v. Washington<\/em>, held that the confrontation right applied only to \u201ctestimonial\u201d 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.<\/p>\n

Bryant appealed his conviction on grounds that Covington\u2019s hearsay statements to police violated the Crawford<\/em> rule. Since it was undisputed the Bryant had never cross-examined Covington before his death (duh), Michigan\u2019s supreme court reversed the murder conviction because it found the hearsay \u201ctestimonial.\u201d The Supreme Court granted certiorari.<\/p>\n

To many observers, Bryant<\/em> promised to illuminate a possible dying declaration exception to the Crawford<\/em> rule that had cropped up in earlier dicta, much as the Court had fleshed out an exception for \u201cforfeiture by wrongdoing\u201d several years ago in Giles v. California<\/em>, 554 U.S. 353 (2008). Instead, the Court sidestepped the dying declaration exception on grounds that Michigan had abandoned it, ruling instead that Covington\u2019s dying responses to police questioning about his killer\u2019s identity were not \u201ctestimonial\u201d in the first place. In sum, the Michigan court erred because Bryant\u2019s confrontation right did not attach to Covington\u2019s hearsay.<\/p>\n

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 \u201ca 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.\u201d Whew. Space limits preclude any full elaboration, yet three points stand out. First, testimonial hearsay\u2019s essence turns on whether the declarant\u2019s \u201cprimary purpose\u201d was to provide \u201cevidence\u201d (my word) for a criminal investigation or prosecution. Second, the primary purpose is determined objectively; the declarant\u2019s subjective (\u201cactual\u201d) 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 \u2013 \u201cprimary purpose,\u201d objective assessment, totality of the circumstances \u2013 spells only one thing: the standard for testimonial hearsay is manifestly uncertain, offering little, if any, predictive value.<\/p>\n

If Crawford<\/em> offered hope for criminal defendants that there was some rigor in the confrontation right, Bryant<\/em> 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 \u201clitigation lotteries\u201d advocated by the defense (e.g., the \u201cno knock\u201d cases), but Bryant<\/em> provides little incentive for prosecutors not to litigate this issue.<\/p>\n

In separate dissents, Justices Scalia and Ginsburg both conclude that Covington\u2019s statements were clearly testimonial hearsay and that Bryant<\/em> effectively creates a gaping, unworkable exception for \u201cviolent crimes.\u201d 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\u2019s admissibility under the confrontation right, fittingly entitled Bullcoming v. New Mexico<\/a><\/em> (argued March 2, 2011).\u00a0\u00a0Tellingly perhaps, the Bryant<\/em> majority left the backdoor wide open for a retreat when it observed that the Bryant<\/em> record, which predated Crawford<\/em>, \u201cwas not developed to ascertain the \u2018primary purpose of the interrogation.\u2019\u201d Stay tuned, there\u2019s always (more) \u201cBullcoming<\/em>.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201cthe way\u201d through the swamp. Like a child\u2019s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly […]<\/p>\n","protected":false},"author":43,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,88,24],"tags":[],"class_list":["post-12948","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-evidence","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12948","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/43"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=12948"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12948\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=12948"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=12948"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=12948"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}