US Supreme Court runs roughshod over the Confrontation Clause

On February 28, 2011, the United States Supreme Court issued a stunning opinion backtracking from its recent line of cases which had reinvigorated the Sixth Amendment's "Confrontation Clause." This decision will be used, as had prior rejected cases, as the basis for a gradual erosion of a criminal defendant's Constitutional right to confront the witnesses against him.

The decision, in the case Michigan v. Bryant, is important because it marks a dramatic retreat from recent Supreme Court case law which had stood for the general proposition that a criminal defendant had a Constitutional right to see, hear and question the witnesses against him. The right of the criminal defendant to "cross examine" those who bore testimony against him was seen as a fundamental right: one that helped ensure that all persons charged with a crime received a fair trial. This right was enshrined in the Sixth Amendment to the United States Constitution in what is commonly referred to as the "Confrontation Clause."

From its inception until 2004, various Supreme Court decisions had eroded the protections of the "Confrontation Clause" by repeatedly carving out exceptions to its rule requiring live testimony under theory that certain types of out of court statements were so typically reliable, that the right to confrontation was rendered unnecessary or superfluous. In the 1980 case of Ohio v. Roberts, 448 U.S. 56, the Supreme Court stated the rule that the Sixth Amendment's Confrontation Clause does not bar the admission of the out of court statements of a witness who is "unavailable" at the defendant's trial if those statements bore "adequate indicia of reliability."

In 2004 the logic and reasoning of the Court's prior Confrontation Clause analysis was firmly rejected in Crawford v. Washington, 541 U.S. 36. In Crawford, the Court rejected the prior testing of whether a statement was or was not reliable enough to "satisfy" the Confrontation Clause. In cases where a witness was not available to testify against a defendant in person at trial, any prior testimonial statements made by that witness before the trial (for example statements the witness gave to police) could not be introduced into evidence against the defendant unless the defendant had been given a prior opportunity to question the witness about such statements. The Court returned to what it viewed as the traditional Confrontation Clause analysis which focused on whether the prior statements were "testimonial" in nature.

Cases since Crawford, focused anew on whether or not a particular out of court statement which the government wishes to introduce against a criminal defendant are testimonial in nature. Many recent cases took up the issue in the context of whether or not statements made by people during an "emergency" situation were testimonial. These cases resulted in a test that asked a court to look at the "primary purpose" for which the statements were made to determine whether or not the statements were testimonial. "Testimonial" statements were those that were made with a primary purpose of proving past events."Nontestimonial" statements were those that, in the emergency realm, were made for the primary purpose of seeking or enabling police assistance with an "ongoing emergency."

It is the concept of "ongoing emergency" that the Court in Bryant has opened the door to a renewed erosion of the Confrontation Clause. In Bryant, police responded to a 911 call that a gunshot victim had appeared at a gas station. When the police arrived they spoke to the victim who told them that he had been shot by the defendant some 25 minutes earlier on the defendant's back porch some six blocks away. Neither police at the scene, nor the shooting victim expressed any concern of an ongoing emergency.

Yet, the Supreme Court held that the victim's untested statements to the police concerning the shooting were admissible in trial as they were not testimonial but rather related to the ongoing emergency of an armed shooter still on the loose somewhere in the vicinity. This "emergency" appears entirely concocted by the Supreme Court after the fact. No such emergency actually existed in either the minds of the police or more importantly in the mind of the victim.

In creating an emergency were none in fact or reason existed, the Court in Bryant goes forward to endorse an approach that encourages judges to engage in an after-the-fact analysis of what actually occurred to determine if an emergency could have existed. This type of judicial fact-finding is standardless and inscrutable and is an open invitation to the further erosion of the Confrontation Clause along lines similar to the old and disavowed "reliability" analysis. As Justice Scalia joined incredibly by Justice Ginsburg, notes in his dissent. "For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all."

A sad day indeed for the Constitution, and a call to arms for all criminal defense attorneys to guard their clients and their client's cases against falling into this new quagmire of judicially created emergencies that serve as a basis for the introduction of unchallenged, unsworn, and unreliable testimony against the criminally accused.


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