The US Supreme Court on Monday ruled that statements made to authorities during an ongoing emergency may later be introduced as evidence in a criminal trial – even if the source of the statements dies prior to the trial.
The 6-to-2 ruling creates a significant exception to the Sixth Amendment’s right of charged criminals to confront their accusers during their trial, countering a recent trend in Supreme Court rulings.
Since 2004, the high court, led by Justice Antonin Scalia, has sought to reinvigorate the so-called confrontation clause. It has done so by eliminating many of the judge-created exemptions that allowed introduction of hearsay statements even though there would be no opportunity for the defendant to challenge their veracity through cross examination.
Monday’s decision in Michigan v. Bryant (09-150) involves a dispute over whether statements made to police by a man with a fatal gunshot wound could be presented as evidence at the trial of the alleged shooter.
In April 2001, Detroit police found Anthony Covington lying near his car in a gas station parking lot. He had been shot. While waiting for emergency medical personnel, police asked him a series of questions. What happened? Who shot you? Where did the shooting occur?
Key information before dying
Covington answered the questions, telling police that “Rick” had shot him. He gave police the address.
Police went to house of Richard Bryant at the provided address. He was not home. They found blood and a bullet on the back porch and noticed a bullet hole in the door. They also found Covington’s wallet and identification outside the house.
Covington died within hours in the hospital of his gunshot wound. Mr. Bryant remained at large for a year before being arrested in California.
At his trial, the responding police officers were permitted to tell the jury what Covington had reportedly told them as he lay in the gas station parking lot. They testified that he provided a name “Rick” and an address of the shooting location.
The jury convicted Bryant of second degree murder.
An appeals court upheld the verdict. But that decision was overturned by the Michigan Supreme Court citing two US Supreme Court decisions that had significantly strengthened the right of defendants to confront witnesses.
The Michigan Supreme Court said that the police accounts of Covington’s statements could not be presented as testimony at Bryant’s trial because Bryant had never been able to cross-examine Covington.
Michigan prosecutors appealed to the US Supreme Court, arguing that the statements should be admissible at Bryant’s trial.
On Monday, the Supreme Court agreed, vacating the Michigan Supreme Court’s ruling and remanding the case to the state courts to reinstate the conviction.
Ginsburg and Scalia dissented
Writing for the majority, Justice Sonia Sotomayor said that when police are responding to an ongoing emergency – rather than investigating a crime and recording potential testimonial statements – any statements made to help address the emergency could be introduced later in a criminal trial even if the person who made the statements was unavailable to present the testimony and undergo cross examination.
“We hold that Covington’s statements were not testimonial and that their admission at Bryant’s trial did not violate the confrontation clause,” Justice Sotomayor wrote.
The majority said the police actions were oriented toward finding the shooter and protecting the public from a gunman. Thus, the court found, the statements made by Covington were not “testimonial,” which would have barred their use at trial under the confrontation clause.
Justices Ruth Bader Ginsburg and Scalia dissented. They said Covington’s statements to police were related to the investigation of the crime and clearly testimonial, rather tied to any ongoing emergency.
“Today’s opinion distorts our confrontation clause jurisprudence and leaves it in a shambles,” Scalia wrote.
He warned the decision would undercut the Framers’ purpose of the Sixth Amendment protection by allowing judges greater leeway to decide which hearsay statements to allow at trial and which to exclude. “Unfortunately, under this malleable approach the guarantee of confrontation is no guarantee at all,” Scalia said.
Trial of Sir Walter Raleigh
The justice traced the issue back to the infamous trial of Sir Walter Raleigh in the early 1600s where Raleigh was charged based on the written statements of an accuser who refused to appear in court. Despite Raleigh’s protestations, the testimony was allowed and he was convicted.
“It was judges’ open-ended determination of what was reliable that violated the trial rights of Englishmen [like Raleigh] in the political trials of the 16th and 17th centuries,” he said.
The Constitution’s framers wrote the confrontation clause into the Sixth Amendment to ensure such abuses would not be repeated in the US, the justice said.
“Not even the least dangerous branch [the Judiciary] can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security,” Scalia wrote.
Justice Elena Kagan did not participate in the appeal because it arose during her service as US Solicitor General.