In Michigan v. Bryant, (3) the United States Supreme Court wrote another chapter in the clash between the Confrontation Clause of the Sixth Amendment to the United States Constitution and the admissibility of extra-judicial statements. This article presents an outline of Bryant's "ongoing emergency" doctrine, an examination of how Bryant may affect Massachusetts's decisional law, and a view that Bryant's holding and dictum may mark a return to the basic contours of the reliability of excited utterances in the context of domestic-violence prosecutions.
THE CONFRONTATION CLAUSE
The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (4) Citing Crawford v. Washington, the Court reiterated that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (5) According to the Court in Bryant, Crawford "emphasized" that the word "witness" meant "those who bear testimony" and also defined the term "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact," noting 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 to an acquaintance does not." (6) The Confrontation Clause applies only to testimonial hearsay, and where testimonial evidence is sought to be admitted, the Court quoted Crawford's holding that "the Sixth Amendment 'demands what the common law required: unavailability and a prior opportunity for cross-examination.'" (7) "[T]he 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." (8)
The Court in Crawford did not set forth a comprehensive definition of "testimonial," but it recognized that grand jury testimony, testimony given at a prior trial, and testimony provided at a preliminary hearing all fall within the meaning. (9) In addition, the Court in Crawford recognized that some police interrogations might produce responses that are testimonial. (10)
The Supreme Court in Davis v. Washington, and its companion case Hammon v. Indiana, "took a further step to determine more precisely which police interrogations produce testimony" for the purposes of the Confrontation Clause and which responses do not qualify. (11)
The Court introduced the concept of "primary purpose" and "ongoing emergency," explaining:
Statements are nontestimonial when 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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (12) The distinction is that when "the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the Clause." (13)
Davis and Hammon both, however, involved domestic violence. (14) Davis involved the admission of statements recorded during a 911 emergency call in which the female victim, who did not appear at trial, described the active assault and battery by her former boyfriend, an objectively clear emergency. (15) Hammon involved the admission of statements made by the victim to police officers and the admission of an affidavit signed by the victim, both of which recounted the assault by the defendant. (16) In this case, the statements and affidavit were made in circumstances where a threat to the victim did not exist because the victim and the assailant had been separated by police. (17) In Davis, the Court held that the statements were nontestimonial; in Hammon, the Court held that the statements were testimonial.
Bryant presented a new context. In Bryant, police responded at around 3:25 am to a radio dispatch indicating that a person had been shot. (18) Five police officers responded, arriving at different times. (19) At the scene--a gas station parking lot--they found the victim lying on the ground next to his car. (20) The victim had a gunshot wound to the abdomen, appeared to be in great pain, and had difficulty speaking. (21) The police officers "did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred." (22) The victim was, however, able to respond to the questions posed by police officers. (23) The first question asked by each officer was "what happened?" (24) The victim's answer was either "I was shot" or "Rick shot me." (25) The victim also informed the police of what had occurred and that he fled from the scene of the shooting, which occurred approximately twenty-five minutes prior to their arrival. (26) The victim's statements did not reveal whether the shooting arose out of a "purely private dispute or that the threat from the shooter had ended." (27) Little was revealed about the motive for the assault. (28) All statements of the victim "occurred within the first few minutes of the police officers' arrival." (29) The victim's answers "were punctuated with questions about when emergency medical services would arrive." (30) Emergency medical personnel arrived on scene within five to ten minutes after police arrival and transported the victim to the hospital, where he died within hours. (31) The trial court found that the prosecution had not sustained its burden of proving the statements qualified as a dying declaration; they were therefore admitted at trial as excited utterances. (32) The person named as the shooter by the victim was convicted of second-degree murder. (33)
The Supreme Court of Michigan ultimately reversed the conviction. (34) That court concluded that the admission of the statements violated Confrontation Clause principles and constituted error that required reversal. (35) The court noted that the actions of the officer did not suggest there existed an ongoing emergency and held that no emergency existed. (36) The court also held that the "primary purpose" of the police in asking the questions was to establish what "had already occurred[,] ... not to enable police assistance to meet an ongoing emergency." (37) Further, the court held that the "primary purpose" of the victim was to inform the police of "who had committed the crime against him, where the crime had been committed, and where the police could find the criminal." (38) "The court did not address whether, absent a Confrontation Clause bar, the statements' admission would have been otherwise consistent with Michigan's hearsay rules or due process." (39)
On writ of certiorari, the Court was presented with "circumstances in which the 'ongoing emergency' ... extend[ed] beyond an initial victim to a potential threat to the responding police and the public at large." (40) "[A] victim [was] found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim." (41) The circumstances provided the Court with the opportunity to "provide additional clarification with regard to what Davis meant by 'the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.'" (42)
Bryant first explained why an "ongoing emergency" was relevant to whether responses to police interrogation can evade the Confrontation Clause. (43) It then provided guidance to evaluate the "primary purpose" of the declarant and the interrogator. (44)
As to the contours of an emergency, the Court in Bryant stated it is relevant "because of the effect it has on the parties' purpose, not because of its actual existence." (45) "[A]n emergency focuses the participants on something other than proving past events potentially relevant to later criminal prosecutions. Rather, it focuses them on ending a threatening situation." (46) This focus is believed to "significantly diminish"--"not unlike that justifying the excited utterance exception in hearsay law"--"the prospect of fabrication" such that "the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination." (47) The purpose "is not to create a trial record and thus not within the scope of the [Confrontation] Clause." (48)
Guiding a court's determination as to whether the primary purpose of the interrogation was to meet an ongoing emergency or whether its purpose was to produce testimonial evidence, the Court in Bryant identified the following test: "To determine whether the primary purpose of an interrogation is to enable police assistance to meet an ongoing emergency, which would render the resulting statements nontestimonial," a court must "objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties." (49)
As to the first part of the objective analysis, the Court in Bryant, by way of illustration, noted that interrogations "at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards," are "clearly matters of objective fact." (50) Yet, while it may be that a police station interview provides a readily apparent context of when statements would be deemed testimonial in nature, determining whether responses to police interrogation occur during or after an emergency is more complex.
First, as the Bryant Court stated:
The existence of an...