Whether statements to police, that are given by a witness experiencing a medical emergency while the perpetrator is still at large should be classified as “nontestimonial” under the exception to the Confrontation Clause for statements made with a “primary purpose” of enabling police to meet an “ongoing emergency?”
As Anthony Covington lay on the ground injured from a gunshot wound, he provided police officers on the scene with a description of his alleged shooter, before dying a few hours later. The police arrested the suspected shooter, Richard Bryant, based on Covington’s statements, and Bryant was subsequently convicted of second-degree murder after the Michigan trial court admitted Covington’s statements into evidence. Bryant claims that the admission of Covington’s statements violated his right to cross-examine an opposing witness, as guaranteed by the Sixth Amendment’s Confrontation Clause. The State of Michigan argues that Covington’s statements were obtained during the police’s response to an “ongoing emergency” and that its admission did not violate the Confrontation Clause. The Supreme Court’s decision in this case will likely offer further guidance on what statements are “nontestimonial” under its landmark decisions in Crawford v. Washington and Davis v. Washington, which redefined the ambit of the Confrontation Clause.
On April 29, 2001, Detroit police officers found Anthony Covington lying on the ground next to his car in a gas station, with a gunshot wound in his abdomen. Covington, in response to the officers’ immediate questions about what happened, replied that he had been shot by the Respondent, Richard Perry Bryant, at approximately 3 a.m. According to Covington, he was standing outside Bryant’s house having a brief conversation through the back door with Bryant when Bryant shot him through the wooden door. Although Covington did not see who shot him, he claimed that he recognized Bryant’s voice through the door. Covington also described Bryant as being 40 years old, 5-foot-7-inches tall, and weighing approximately 140 pounds; according to Bryant’s driver’s license, he was 30 years old, 5-foot-10-inches, and 180 pounds.
Covington, who was still lying on the ground when he provided police with a physical description of the shooter, died a few hours later after police transported him to the hospital. The police were unable to locate Bryant until a year later, when they arrested him in California for Covington’s murder and extradited him to Michigan for trial.
At Bryant’s preliminary examination, the trial judge, citing Michigan Rule of Evidence 803(2)’s excited utterances exception to the hearsay rule, admitted into evidence Covington’s statements to the police identifying Bryant as the shooter. The initial trial resulted in a hung jury and a mistrial, but at retrial the jury subsequently convicted Bryant of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony.
On appeal, Bryant argued that the trial court violated his rights under the Sixth Amendment’s Confrontation Clause in admitting Covington’s out-of-court statements. The Michigan Court of Appeals upheld the convictions on direct appeal. The Michigan Supreme Court, however, reversed the decision, holding that the trial court violated Bryant’s confrontation right because Covington’s statements were testimonial and Bryant was not afforded an opportunity to cross-examine him. The Supreme Court of the United States subsequently granted certiorari on March 1, 2010.
Generally, the Confrontation Clause of the Sixth Amendment requires that a criminal defendant has the right to cross-examine the witnesses against him; but an exception exists when the statements are “nontestimonial.” See Crawford v. Washington, 541 U.S. 36, 59 (2004). This “nontestimonial” exception applies to, among others, statements made during a police interrogation when the objective circumstances indicate that the “primary purpose” was to meet an “ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006).
Here, the trial court admitted into evidence victim Anthony Covington’s out-of-court statements, which were in response to a police interrogation that took place thirty minutes after the shooting and approximately six blocks away from where it occurred. See People v. Bryant, 768 N.W.2d 65, 68–71 (Mich. 2009). On appeal, the Michigan Supreme Court ruled that Covington’s statements were “testimonial,” in part because they were not made with the “primary purpose” of enabling the police to meet an “ongoing emergency” under Davis. See Bryant, 768 N.W.2d at 71 (Mich. 2009).
This case addresses two primary concerns: (1) the scope of the term “ongoing emergency;” and (2) the proper standards for determining an interrogation’s “primary purpose.”
What is an "Ongoing Emergency?"
Michigan states that the police interrogation of Covington took place during an "ongoing emergency" for two alternative reasons: (1) the perpetrator was still at large, posing a potential threat; and (2) Covington had been shot, resulting in a medical emergency. See Brief for Petitioners, The People of the State of Michigan at 12–13. First, Michigan states that the police—as first responders—arrived at the scene without knowing the perpetrator's whereabouts or whether he was still armed and dangerous. See id. at 14–15. Michigan contends, therefore, that the "at-large" perpetrator placed Bryant, the officers, and bystanders at risk, resulting in an "ongoing emergency." See id.
Bryant counters by stating that, under Davis, this fact alone is insufficient to create an “ongoing emergency.” See Brief for Respondent, Richard Perry Bryant at 8. Bryant argues that accepting Michigan's argument would result in the improper presumption that all statements made to police are “nontestimonial” while a perpetrator is at large. See id. at 12. Rather, Bryant contends, courts should consider the fact in relation to all other objective circumstances to determine whether there was an "immediate or contemporaneous threat." See id. at 17. Bryant maintains that Covington gave his statements six blocks from where he was shot, about 30 minutes after the criminal activity took place, and did not indicate he was imminently fearful of the perpetrator. See id. at 26. Bryant concludes that despite the perpetrator being "at large," the lack of an imminent threat meant there was no “ongoing emergency.” See id. at 27.
Alternatively, Michigan argues that the term “ongoing emergency” should be read broadly to include not just crimes in progress, but also other emergencies that criminal activity sets in motion. See Brief for Petitioner at 12. According to Michigan, the Court in Davis based its holding on the presence of a "bona fide physical threat" to the declarant, and because medical emergencies also present such a threat, they are encompassed by Davis. See id. at 13–14. Michigan maintains that criminal activity led to the police finding Covington on the ground in a gas station, bleeding and breathing with difficulty. See id. Michigan contends that the police were clearly responding to an "ongoing emergency[BMR1] ." See id.
Bryant argues that while an ongoing medical emergency may have existed, an emergency alone does not create the conclusive presumption that all statements obtained by the police are “nontestimonial.” See Brief for Respondent at 13. Bryant contends that all of the evidence must be considered to determine the declarant's “primary purpose” in making the statement. See id. at 31–32. Bryant concludes that the “primary purpose” of Covington's statements was to relay the evening's events to the police, not to provide information so they could address his medical emergency. See id.
What is the Proper Perspective for Determining the "Primary Purpose" of Interrogation?
Michigan agrees that the courts must look to the "primary purpose" of the interrogation; however, it argues that the emergency itself (whether it be a perpetrator at large or a medical emergency) acts as objective evidence that the interrogator's "primary purpose" was to meet that "ongoing emergency." See Brief for Petitioner at 14–15. Michigan reasons that the "primary purpose" of questions posed by the first responders to an "ongoing emergency" will naturally be to assess and address the situation. See id. at 14–15. When a criminal is at large, it presents a threat to the witness, police officers, and bystanders, and therefore, Michigan argues, it is expected that officers will ask questions relating to the identity and location of the perpetrator. See id. at 15. Similarly, in responding to a medical emergency, the officer's questions—as a first response—can naturally be expected to be for the "primary purpose" of assessing and addressing the victim's medical condition. See id. at 14.
Bryant counters that Michigan, by focusing on the interrogator's intent, is taking the wrong perspective. See Brief for Respondent at 12. Rather, because it is the declarant who cannot be cross-examined to determine the credibility and reliability of his statements, the focus should be on objectively reviewing the content and circumstances of the declarant's out-of-court statements to determine his intent. See id. at 12–13. Bryant argues that a bright-line rule should be used: If the declarant feels an imminent threat and seeks the immediate assistance of the police—“a cry for help”—then he is not acting as a witness giving testimony, and his statements are “nontestimonial.” See id. at 13. If, however, he is providing a description of past events, then this is a clear substitute for trial testimony, and his statements must be subject to cross-examination under the Confrontation Clause. See id.
Michigan answers this assertion by arguing that Bryant's "witness perspective" is inherently subjective, and thus, a misreading of the Davis test—mandating an objective determination of the interrogation's "primary purpose." See Petitioner's Reply Brief at 2. Michigan further argues that Bryant's approach would place courts in the position of determining the state-of-mind of an unavailable witness, which would be both impracticable and unmanageable. See id. at 3.
Historical Legal Parallels
Bryant argues that the historical res gestae doctrine supports looking to the content of the declarant's statements to determine whether they were made either as part of the criminal event or as past narratives. See Brief for Respondent at 33. Under this doctrine, statements will be admissible as evidence if they were made as part of the event, but if they were narratives made after the event, then they would be inadmissible. See id.
Michigan, however, contends that focusing on whether a statement is past or present tense is a question of semantics that draws attention away from the true task set forth in Davis: determining the "primary purpose" of the interrogation. See Brief for Petitioner at 13. Indeed, Michigan further argues that often the police require information about prior events in order to properly respond to an "ongoing emergency." See id. Michigan also attempts to undermine Bryant's res gestae analogy by arguing that the historical application of the doctrine is varied and unclear, and does not relate to the confrontation right, but rather to the hearsay evidentiary rule. See Petitioner's Reply Brief at 4–5. Therefore, Michigan concludes, the res gestae doctrine should offer little, if any, guidance in the matter. See id.
Michigan argues that the police’s inquiries of Covington concerning the suspect and the circumstances of the shooting were made under circumstances indicating that the main purpose of the police’s questioning was to respond to an “ongoing emergency.” See Brief for Petitioner, People of the State of Michigan at 4. Michigan defines statements made during an “ongoing emergency” as those that help enable the police to not only aid the victim, but to also identify and apprehend a dangerous, at-large suspect. See id. at 4–5. Therefore, according to Michigan, Covington’s statements were “nontestimonial” and thus not subject to cross-examination at trial. See id. Respondent Richard Perry Bryant counters that the Confrontation Clause prohibits the admission of Covington’s statements into evidence because they were not in reference to a true “ongoing emergency,” which Bryant defines as an immediate threat of harm. See Brief for Respondent, Richard P. Bryant at 7. Accordingly, Bryant argues that failure to meet the “ongoing emergency” standard means that Covington’s statements should be considered “testimonial.” See id.
The parties’ disagreement over what statements are “nontestimonial” highlights the tension between allowing a witness’s potentially significant testimony to be admitted into evidence to aid search for the truth, on one hand, and potentially violating the defendant’s constitutional right to cross-examine his or her accuser, on the other.
The National Association of Criminal Defense Lawyers contends that the ability of a defendant to cross-examine a witness is a hallmark of the American criminal justice system and is essential toward helping to ensure that the trial is fair. See Brief of the National Association of Criminal Defense Lawyers in Support of Respondent at 2.
Likewise, Professor Richard D. Friedman argues that it would be illogical to treat a statement, such as the one Covington made, as “nontestimonial” just because the individual made the statement informally. See Brief of Richard D. Friedman in Support of Respondent at 4. The effect of allowing such practice, according to Friedman, would be to create a system in which a witness to a crime could make informal statements to the police for use at trial without having to face the accused person or appear in court. See id. at 17. This would mean that a witness would only be subject to the Confrontation Clause if he or she decided not to give informal statements—thus creating a major loophole around the Sixth Amendment’s safeguards for the accused. See id.
However, the United States asserts that the effect of ruling for Petitioner would not result in courts holding that any statement made by a witness while the suspect remains at large will be “nontestimonial.” See Brief for the United States in Support of Petitioner at 20. Instead, the United States argues, courts should make a determination on whether evidence is “testimonial” based on the facts of each case. See id. The result of this approach would be that, in situations where the police officers’ initial questions were primarily aimed at responding to an “ongoing emergency,” admission of the witness’s statements at trial would not violate the Confrontation Clause. See id. The Attorneys General of 36 states argue that courts should be allowed to assess the “setting, purpose and form” of an official interrogation rather than following a rigid test in assessing whether a statement is “testimonial.” See Brief of Amici Curiae the States of Maryland, Utah, et al. in Support of Petitioner at 15–16.
This case will allow the Supreme Court to further refine what constitutes a “nontestimonial” statement as it relates to the Sixth Amendment’s Confrontation Clause. The exception’s breadth hinges on the Court’s interpretation of what constitutes an “ongoing emergency,” and, if one exists, how it determines whether the “primary purpose” of the witness’s statements were to enable police to meet the “ongoing emergency.” Finding in favor of Michigan will make it easier to admit statements by unavailable witnesses into evidence to aid the search for truth. If the Court sides with Bryant, however, the exception will remain narrow, and disallow the admittance of out-of-court testimony made in situations where a perpetrator is still at large or where the witness’s statements took place during a medical emergency.
- Richard D. Friedman: The Confrontation Blog
- New York Law Journal, Paul Schectman: U.S. Supreme Court to Tackle When Statement is Testimonial (July 19, 2010)