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SCOTUS Reverses Favorable Michigan Supreme Court Ruling in Bryant: Victim's Crime Scene ID of the Defendant is Not Testimonial Under Crawford (Updated)

This is a reworked version of my post on yesterday’s Supreme Court ruling in Michigan v Bryant. An individual was shot in a gas station and told the responding police that the defendant was the shooter. The Michigan Supreme Court ruled that the statement was testimonial. Because the statement was testimonial in nature and made out of court, the Michigan Supreme Court found that the statement was inadmissible under its modern approach tot he confrontation clause.

This case should have been an easy win for the defense, but shockingly the State won. Reversing the Michigan Supreme Court, the US Supreme Court found that the statement was non-testimonial because the victim’s primary motivation was to help the police, rather than give an official statement. The Court seems to be stretching its prior ruling in
Davis v Washington prior ruling to the breaking point.

Justices Scalia and Ginsburg dissented.
Justice Scalia called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.” “In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shamble. (Justice Ginsburg’s dissent was short and less important. Because Justice Scalia is the captain (or at least the discovering archeologist of the modern confrontation clause, his scathing (and I mean scathing) dissent is particularly important.

As Justice Scalia suggested, this ruling appears to be a retrenchment from Crawford. What seems particularly disconcerting is that the Court found that given the nature of the event, there was little motive for fabrication. The Court looked by analogy to the Rules of Evidence to draw this conclusion and stated that the Rules were a good guidepost. This seems like a move in the direction of
Ohio v Roberts. Roberts was directly overruled by Crawford v Washington.

As Justice Scalia pointed out: “
Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.” This death by a thousand cuts prediction is very troubling.

Very little is out about by the ruling so far. Hear is a link to an excellent transcript of the oral argument of the Bryant case by Attorneys Peter VanHoek of the State Appellate Defender’s Office for Richard Perry Bryant, Attorney Lori Baughman Palmer of the Wayne County Prosecutor’s Office for the State of Michigan, and Deputy Solicitor General Leondra R. Kruger for the U.S. Department of Justice. Here is a link to the briefs of the case (middle of the page).

New York Times has a nice analysis. Professor Collin Miller at the John Marshall Law School in Chicago has been blogging in busts about the ruling. Professor Richard Friedman the leading authority on this issue has noted the decision, but has not released his in depth analysis. His preliminary comments indicate concerns similar to Justice Scalia’s. As Orin Kerr noted over at the Volokh Conspiracy, Justice Scalia’s solo dissent (Justice Ginsburg wrote a small separate dissent) is ominous. Professor Friedman filed his own pro se amicus brief in Bryant supporting the Michigan Supreme Court. In that brief, Professor Friedman argued that the Court should look at the statement from the vantage point of the speaker, should not focus on the formality of the statement, and argued that the only theory possibly justifying admission of the statement was forfeiture. His viewpoint did not carry the day.