On Tuesday, the Supreme Court will hear argument in Michigan v. Bryant. The issue in the case is whether the use of an injured victim’s out-of-court statement made to police at the crime scene violates the Sixth Amendment under Crawford v. Washington.
SCOTUSblog's preview of the case can be found here.
I usually don't talk about my own cases around here for various different reasons. But, in this instance, I feel that I can't really avoid it. I argued this exact same issue before the New York Court of Appeals in a case called People v. Juan Nieves-Andino, 9 N.Y.3d 12 (2007). I lost that case 4 to 3. I remember that I told the law journal that I found some "solace" in the split decision. Almost immediately after I said it, I regretted it. My personal feelings are really irrelevant in such a situation. Of course that quote ended up in the article about the case.
But I am very familiar with the issue, so I kind of have a strong opinion about it. In my mind, this issue boils down to this: how much is the Supreme Court willing to stand behind its decision in Davis v. Washington? That is the case that interpreted Crawford as it applies to on-the-scene statements. The rule from that case is that an on-the scene statement is not testimonial if it was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."
Based on the way the rule was applied in Davis and the policy reasons underlying Crawford, I believe that the only way to logically read the rule is to hold that statements taken from victims at the scene of the crime, once it is clear that the immediate danger to the victim has subsided, have to be considered testimonial.
Certainly, it is inconvenient for law enforcement if the rule is read this way. By the time the police arrive in most situations, the immediate danger to the victim will have subsided. And where the victim later dies, the statements that were obtained are almost always lost forever. But the Court has instituted a formulaic approach to the Confrontation Clause and, when these facts are plugged into the formula, this is the result.
Now, if the Court agrees with me and goes in this direction (there is absolutely no guarantee of that as they could easily decide that an "ongoing emergency" is a much broader term; but if they do . . .), then Bryant could end up having a huge impact.
I am very curious to see what happens at the oral argument.
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