V. The Right to Confrontation from to Present: Applying Crawford in the Federal and State Courts

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

V. The Right to Confrontation from 2004 to Present: Applying Crawford in the Federal and State CourtsA. A New Focus on the Primary Purpose of the Interrogation and the Ongoing Emergency Exception

Just two years after Crawford, the Court decided Davis v. Washington and its consolidated companion case Hammon v. Indiana.¹⁰⁸ Both cases were factually distinct from Crawford because the out-of-court statements were made, not in the relative calm of the police station interrogation room, but by victims during or immediately following violent crimes.

According to the Davis Court, statements are nontestimonial (i.e., do not raise confrontation concerns) under Crawford when they were made "under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency."¹⁰⁹ In contrast, statements are testimonial (i.e., require confrontation) "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions."¹¹⁰ By applying this refinement to the Crawford standard, the Court concluded in Davis that a frantic mid-assault 911 call by the victim is nontestimonial,¹¹¹ but in Hammon that a "battery affidavit" (prepared by the victim post-assault during a secured-scene kitchen table police interview) is testimonial.¹¹²

B. Defining the Primary Purpose of the Interrogation and the Ongoing Emergency Exception

The question of how judges should determine the objective primary purpose of an interrogation has not yet been answered. Five years after Davis, in Michigan v. Bryant,¹¹³ the Court revisited this issue in a case involving police interrogation of a critically injured crime victim while he lay on the street bleeding from gunshot wounds just hours before he died.¹¹⁴ Justice Sotomayor wrote for a Bryant majority that included Chief Justice Roberts and Justices Kennedy, Breyer, and Ali-to.¹¹⁵ The Bryant court held that under the circumstances, the victim's statements identifying the defendant as the shooter were nontestimonial and so their admission at trial did not violate the Confrontation Clause.

1. The Dual/Combined Objective Primary Purpose of the Interrogation

According to the Bryant Court, the objective primary purpose of the interrogation of the victim was not to establish past events potentially relevant to a criminal prosecution. On the threshold question of whose purpose should govern, Justice Sotomayor explained that courts should use "a combined inquiry that accounts for both the declarant and the interrogator"¹¹⁶ because this dual focus "ameliorates problems that could arise from looking solely to one participant."¹¹⁷ The Court concluded that the Bryant combined objective purpose approach is proper because the "relevant inquiry is not the subjective or actual purpose of the individuals in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred."¹¹⁸ Hence, future courts should examine "the statements and actions of both the declarant and interrogators,"¹¹⁹ including (1) "the contents of both the questions and answers,"¹²⁰ (2) whether the statement was made during an "ongoing emergency," and (3) "the informality of an encounter between a victim and police."¹²¹

Given the importance of Bryant to developing confrontation analysis, it is worth noting that the Court's "combined inquiry" is cumbersome and confusing.¹²² While courts routinely struggle to divine past intent, after Bryant courts face the Herculean task of divining and reconciling the intent of two or more people. As Justice Scalia aptly argued in his dissent, "Sorting out the primary purpose of a declarant with mixed motives is sometimes difficult[;] . . . [b]ut adding in the mixed motives of the police only compounds the problem."¹²³

2. Myriad Possible Ongoing Emergency Determinants

In the wake of Bryant, the nature and circumstances of any alleged ongoing emergency have enhanced constitutional significance. Although not all statements made during ongoing emergencies are nontestimonial,¹²⁴ the existence of an ongoing emergency remains "an important factor—that informs the ultimate inquiry regarding the 'primary purpose' of the investigation."¹²⁵

Here, as the lower courts are discovering, the Bryant Court has added layers of confusion and complexity to the rapidly evolving constitutional standard.¹²⁶ As a threshold matter, Bryant does not specify whether the nontestimonial statements (1) must be made during an actual ongoing emergency, or (2) can be based on a declarant's and/or the police officer's reasonable (but mistaken) belief that an emergency is ongoing.¹²⁷ If judges must decide whether an actual emergency was ongoing when the statement was made (as the Davis Court assumed),¹²⁸ how will they decide? Instead of clear guidance, the Bryant Court touched on myriad factors that might be used to determine whether there was an emergency and whether it was ongoing, including:

• the nature of the dispute;¹²⁹
• the scope of the potential harm to the victim;¹³⁰
• the threat to additional identifiable victims;¹³¹
• the existence of a more generalized threat to the public;¹³²
• the suspect's choice of weapon;¹³³ and
• whether the suspect remained "at large" or had been located (but not yet apprehended) by the police and/or any other "first responders."¹³⁴

The Bryant Court also suggested that, where appropriate, judges should assess "[t]he medical condition of the victim . . . to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would be a testimonial one."¹³⁵

In 2011, the Court decided Bullcoming v. New Mexico,¹³⁶ which is discussed in more detail in the following sections.¹³⁷ In Bullcoming, decided just months after Bryant, the four dissenting Bryant justices complained that seven years after Crawford, the Court had failed to resolve core confrontation questions including "the elusive distinction between utterances aimed at proving past events, and those calculated to help police keep the peace."¹³⁸

C. The Growing Importance of the Formality of the Statement and Interrogation

In Crawford and the post-Crawford cases, the Court has repeatedly considered the constitutional significance of the formality of the interrogation. Because formality, unlike "ongoing emergencies" or a speaker's intent, is relatively easy for judges to ascertain, future out-of-court statements are more likely to be deemed testimonial if they were made under formal (trial-like) circumstances.

The Crawford Court held that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark does not."¹³⁹ Building on this distinction, the Davis Court noted that "formality is indeed central to testimonial utterance"¹⁴⁰ and specifically contrasted Sylvia Crawford's post-Miranda stationhouse custodial interrogation with Michelle McCottry's frantic mid-assault 911 call.¹⁴¹ According to the Court, "the difference in the level of formality [between the two interrogations] is striking."¹⁴² In the formal interrogation, Crawford "was responding calmly, at the station house, to a series of questions, with the officer interrogator taping and making notes of her answers."¹⁴³ In the informal interrogation, McCottry provided "frantic answers . . . over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe."¹⁴⁴ Thus, during informal interrogation, McCottry "was not acting as a witness; she was not testifying . . . [and] [w]hat she said was not 'a weaker substitute for live testimony' at trial."¹⁴⁵

Recently, a majority of the Court adopted the view that the formality of the interrogation is always relevant to the confrontation inquiry.¹⁴⁶ The Bryant Court addressed formality in two ways. First, as a general matter the Court found that "the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial."¹⁴⁷ According to Justice Sotomayor, formal out-of-court interrogations are the most egregious confrontation violations because "the basic purpose of the Confrontation Clause was to target the sort of 'abuses' exemplified at the notorious treason trial of Sir Walter Raleigh."¹⁴⁸ Second, the Court found, more specifically, that the Michigan Supreme Court had "too readily dismissed the informality of the circumstances in this case,"¹⁴⁹ despite the fact that "the questioning . . . [had] occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion."¹⁵⁰ According to Justice Sotomayor, this "informality suggests that the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency"¹⁵¹ and that "the circumstances lacked any formality that would have alerted . . . [the victim] to or focused him on the possible future prosecutorial use of his statements."¹⁵²

Finally, although both Melendez-Diaz v. Massachusetts¹⁵³ and Bull-coming v. New Mexico¹⁵⁴ addressed the more specific question of the defendant's right to confront prosecution-sponsored experts,¹⁵⁵ the formality of the proffered out-of-court statement was determinative in the first case and significant in the second. In Melendez-Diaz, Justice Thomas's fifth-vote concurrence was based solely on his conclusion that the affidavits at issue were formalized testimonial statements. The Court in Bullcoming specifically found that even though the laboratory report was not in the form of an affidavit, it was adequately...