Constitutional Right to Confront Witnesses Watered Down: Statements Describing Shooter Not Testimonial, Admissible Without Confrontation and Cross Examination

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

What a strange Supreme Court we have! You know it’s strange when Justice Sonia Sotomayer authors a lead opinion, joined by Roberts, Kennedy, Breyer and Alito, which curtails longstanding constitutional jurisprudence regarding the Sixth Amendment’s Confrontation Clause over the dissent of Justice Antonin Scalia.  However, this was exactly the case in the Court’s recent opinion in Michigan v. Bryant, in which the Court held that statements made to police identifying and describing a “shooter” were not testimonial and thus were admissible in trial, even though the witness was dead and could not testify.

But we should not have been taken aback. We have become accustomed to seeing the Court in recent years redefining and restricting historical precedents to the point that they have little or no constitutional value, i.e., the Miranda decision.

This time it’s the Sixth Amendment’s Confrontation Clause which guarantees a criminal defendantthe right to confront and cross-examine adverse witnesses against him. The Supreme Court thirty years ago in Maryland v. Craig made it clear that the historical foundation of the Sixth Amendment is rooted in the constitutional premise that “face-to-face confrontation enhances the accuracy of fact-finding reducing the risk that a witness will wrongfully implicate an innocent person.” Just two years before its Craig decision the Court had observed in Coy v. Iowa that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’”

Then the Supreme Court in 2004 in a landmark decision in Crawford v. Washington held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony. TheCrawford court clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Nontestimonial hearsay, on the other hand, did not violate the Confrontation Clause and its admission would be determined by local rules of evidence. The Crawford court rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident who refused to testify against her husband by invoking the marital privilege.

Two years later the Supreme Court was called upon to provide a more definitive clarification of testimonial evidence in Davis v. Washington. The Davis court held that a hearsay statement is testimonial when, under the “totality of the circumstances,” a law enforcement interrogation is part of an investigation into past events about a case and not in response to an “ongoing emergency.” The Davis court upheld the use of out-of-court statements made to a 911 operator during an emergency call for police assistance which implicated the defendant in domestic violence.

Two years after Davis the Court was once again called upon in Giles v. California to clarify testimonial evidence. Giles involved the use of incriminating statements against a husband/defendant given to the police by a wife several weeks before she was killed by the defendant. While Giles held that the incriminating testimonial statements of the deceased wife could not be used, the court said the use of such statements could be used under the two historical exception recognized at the time of America’s founding: 1) the hearsay statements are made by an individual who is on the brink of death and knows he/she is dying or 2) a defendant has engaged in conduct designed to prevent the witness from testifying in court.

Those three decisions over the span of a decade seem to clear the Confrontation Clause landscape of any unnecessary constitutional clutter and uncertainty. Or so it seemed. Then came the case of Richard Bryant, a Michigan criminal defendant who was convicted on the basis of statements a mortally wounded Anthony Covington gave to the police as he lay dying on a gas station parking lot—statements which identified Bryant as the assailant who shot him. A jury convicted Bryant of second-degree murder. The issue seemed clear enough to the Michigan Supreme Court. It reversed Bryant’s conviction based on the Supreme Court’s Crawford andDavis decisions. Giles was not a factor because Covington’s statements were offered as “excited utterances” and not as a dying declaration.

But just when you think the landscape on a given constitutional issue is finally clear enough for all to see and navigate, the Supreme Court will throw a proverbial “monkey wrench” into the scheme of things. Justice Sotomayer said that Anthony Covington’s dying statements were actually “nontestimonial” because they were given to “enable police assistance to meet an ongoing emergency” and were not given as part of a criminal investigation. Reasoning that “not all those questioned by the police are witnesses and not all ‘interrogations by law enforcement officers’ … are subject to the Confrontation Clause,” Justice Sotomayer determined it was best to take an “objective” approach in deciding which statements are testimonial and nontestimonial for future reference. The Justice wrote:

“An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the ‘primary purpose of the interrogation.’ The circumstances in which an encounter occurs—e.g., 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. The statements and actions of the parties must be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved 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.”

We strongly disagree with Justice Sotomayer’s far-reaching analysis of what constitutes testimonial and nontestimonial statements. The Bryant case began in the early morning hours of April 21, 2001 when Detroit police officers were dispatched to a shooting incident. The officers found Anthony Covington lying on the ground next to his vehicle which was parked at a gas station parking lot, some distance from Richard Bryant’s house where he had been shot. The police immediately asked Covington “what happened, who shot him, and where the shooting occurred.”

These were clearly investigatory questions meant to solve a crime, not respond to a medical emergency. There was nothing in the questions designed to assist a wounded person in need of medical treatment. Such questions would have been “where are you shot, how long ago were you shot.” The Michigan Supreme Court agreed, saying the police questions were investigatory because they “clearly indicate[d] that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred: the ‘primary purpose’ was not to enable police assistance to meet an ongoing [medical] emergency.”

Covington responded to the police officers’ investigatory questions by telling them he had went to Bryant’s house to talk to him. He said the two men talked through a back door, and as he turned to leave, he was shot through the door. He told the officers he managed to drive to the gas station. The police talked to Covington five to ten minutes before medical personnel arrived and transported him to the hospital where he died several hours later.

Clearly, as the Michigan Supreme Court observed, the officers did not perceive the gas station scene as an ongoing emergency like the one defined by the Supreme Court in Davis, but as a police interrogation of a victim following an assault, much like the one defined by the Court inHammon v. Indiana (which was jointly decided with Davis). As in Crawford, the wife/victim in the Hammon case gave the police incriminating statements against her husband concerning domestic abuse but did not testify at the husband’s trial so the prosecution used the statements she gave to the police. The Hammon court, as it did in Crawford, held that the wife’s statements to the police were inadmissible testimonial statements given as part of an ongoing investigation.

We fail to perceive the distinction between the inadmissible testimonial statements in Crawfordand Hammon and those statements given to the police by Anthony Covington and used against Bryant. Further, we cannot even begin to equate the police questioning of Covington as a response to an ongoing emergency such as the 911 emergency confronted by the court in Davis. Thus, we find ourselves in unusual agreement with Justice Scalia that the Bryant decision leaves the Crawford/Davis/Hammon jurisprudence “in a shambles” because it presents a “distorted view” of what testimonial statements now entail.

The real problem with the Bryant case is this: we will never know why Anthony Covington was at Richard Bryant’s back door talking to him through the door. Was Covington armed? Did he threaten Bryant? Bryant’s girlfriend testified at Bryant was not at home when Covington was shot. An autopsy revealed Covington had ingested cocaine within four hours of his death. So was it a drug deal gone bad? Or was Covington so high on cocaine he didn’t know who shot him? All these questions will go unanswered because Covington was allowed to point an uncontested accusatory finger at Richard Bryant effectively from the grave.

The Sixth Amendment plainly states that an accused shall enjoy the right…to be confronted with the witnesses against him.  There are no caveats or exceptions like the one developed by the Court in Bryant.  “The Framer’s of our Constitution could not have envisioned such a hollow constitutional guarantee,” said Scalia.  We agree.

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair