The Supreme Court issued a very disappointing decision today in Michigan v. Bryant, concluding that an on-the-scene statement was not testimonial. Even worse, it was a 6 to 2 decision written by Sotomayor, who I thought had been showing signs that she was on the left on these issue. The opinion is available here.
The Court interprets ongoing emergency very broadly. It basically adopts a totality of the circumstances approach that looks at both the intent of the interrogator and the intent of the declarant to determine whether the statements were made to address an ongoing emergency or whether they were made to assist an investigation into past criminal conduct. And the ongoing emergency here included the possibility that the shooter could cause harm to other members of the public. Honestly, under the Court's approach, it is difficult to find when an ongoing emergency has ended, except when the perpetrator has been taken into custody. At least, I am certain that's how lower courts will interpret it.
Scalia issued a stinging dissent that is well worth the read. In his view, the Court had retreated from Crawford's bright-line test and replaced it with the type of test that Crawford had actually overruled: a totality-of-the-circumstances "reliability" test. His dissent speaks to me because it puts forward many of the arguments that the New York Court of Appeals rejected in the Nieves-Andino case.*
*I discussed the Nieves-Andino case in one of my prior posts about Bryant.
But I will make one critical comment about Scalia's dissent. He suggests that, between a declarant-based approach or a interrogator-based approach, the Confrontation Clause should take a declarant-based approach. Of course, that makes more sense and I would agree with it. But he has no one to blame but himself for the fact that the Court adopted such a messy intent-of-both approach. He wrote Davis v. Washington (the first case to discuss on-the-scene statements) and he could have adopted the declarant-centered approach there and ended the discussion. Instead, SCALIA was the one who focused on this interrogator-based approach in Davis. It's a little empty for him to say now that that approach won't work when he was the one who started it.
The impact of the decision won't be felt too intensely here in the New York state courts due to the Nieves-Andino decision. On the other hand, there will be an impact on habeas cases as Bryant will be used to undermine any argument that prior applications of Crawford/Davis were unreasonable.