Mar 02, 2011

Michigan v. Bryant- Justice Scalia's Ongoing Emergency

Justice Scalia has been the US Supreme Court's driving intellectual force behind a series of Sixth Amendment Confrontation Clause interpretations that have made life difficult for prosecutors.  Begininning with Crawford v. Washington in 2004, these decisions make "testimonial" hearsay statements from non-testifying witnesses inadmissible in evidence against criminal defendants at trial.  The Court is developing the contours of the term "testimonial" as it hops from one case to another.  At the moment, hearsay statements are NOT testimonial (and therefore are admissible against defendants) if witnesses make them to police officers, 911 operators, etc. in the course of an "ongoing emergency."  But hearsay statements ARE testimonial if an emergency has passed and government agents are gathering information about a "past crime."

When he outlined the Crawford approach in 2004, Justice Scalia bragged that it was both historically accurate and an easy bright-line rule for later courts to follow.  But the Court's 2011 decision in Michigan v. Bryant has shoved the bright-line into the dark shadows.  Justice Scalia, suddenly finding himself in a 2 person minority dissenting position, went apoplectic.   

To briefly recount the facts in Bryant, police officers interviewed a fatally-wounded shooting victim.  Close to death, the victim told the police the name of the shooter and the location where he'd been shot.  A police officer testified to the victim's statements at Bryant's trial.  To Scalia, this was an easy example of testionial hearsay.  The shooting had already occurred, and the police were gathering information about a past crime. 

But the 6 other Justices (Justice Kagan had to recuse hereself) didn't see it this way.  Looking at the context as a whole, an ongoing emergency existed when the police interviewed the victim.  The shooter's whereabouts were unknown, the victim was near death, and the questioning was loose and unstructured.  The majority lectured Scalia in his own "house" writing that "We are unwilling to sacrifice simplicity for accuracy.  Simplicity is not always better."  Ouch!

Justice Scalia's bitter and caustic dissent may have been a strategic error.  He wrote that the majority had "demeaned" the Court, reached a "patently incorrect conclusion" and left the Confrontation Clause in a "shambles."  And there's lots more bitterness- read it for yourself.  I think it's possible that Justice Scalia's nasty dissent might backfire on him.  His anger sends a clear signal to future judges that Michigan v. Bryant has liberalized the meaning of "ongoing emergency."  If the case is read this way, the doctrinal mansion that Justice Scalia had erected so carefully on the grounds of the Confrontation Clause might crumble.