The transcript from the oral argument in Michigan v. Bryant is available here.
After reading through it, my biggest fear is a plurality opinion. Kagan has recused herself. From the oral argument, I can see three on one side (Scalia, Ginsburg, Sotomayor) in favor of the defendant and three on the other (Alito, Kennedy and Breyer) in favor of the State. I worry that Thomas will side with the State, but do it on his own ground, namely that this wasn't some type of formal, deposition-type interrogation. But that won't further the cause of how to interpret the Crawford/Davis rule. So that means that no matter which way Roberts goes, it will only be a plurality in either direction on how to interpret the rule. This troubles me. I guess this is a real concern in a lot of the cases this term.
Anyways, the highlight for me from the argument occurred during the argument of the Acting Deputy Solicitor General. She made a broad claim that, basically, any time there is a violent crime there will be an ongoing emergency if the assailant has not been caught. Scalia's stern response was: "That's always the case. That's such a phony evasion of what the purpose of a testimonial rule is. That's always going to be the case, at least when there is a violent crime."
I will say this, though. These on-the-scene statements really do stretch the Crawford/Davis "ongoing emergency" rule to a near breaking point. It is very difficult to distinguish between questions seeking to assess the state of the scene to determine whether there is an ongoing emergency vs. questions seeking to obtain historical information. Even the rule's biggest fan, Scalia, seemed to struggle with this during the argument. Where do you draw the line? The questions that will be asked are nearly identical in either situation. It almost seems like the whole analysis has to be done retroactively -- if the information given to the officer shows that there was no emergency, then testimonial. But if the information shows that there is a continuing and immediate threat, then not testimonial.
Maybe the focus should be on how a reasonable officer would respond to the information. Would that work? Would that somehow be better? I really don't know. And I don't know if that logic has any basis in Crawford. I am just trying to find a way out here.
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