SUPREME COURT MODIFIES CRAWFORD V. WASHINGTON

The Supreme Court in Michigan v. Bryant yesterday seriously limited the 2004 decision in Crawford v. Washington. In Crawford the Supreme Court held that the Confrontation Clause mandated that testimonial hearsay only be admitted into evidence if the witness is unavailable and the defendant had a prior chance to cross examine the witness.

But Crawford did not define “testimonial” well. Generally testimonial statements are statements that could be used as evidence. In Davis, the Supreme Court held that a statement is testimonial “when the circumstances objectively indi-cate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Post Crawford cases exempted statements that had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” But this turns out not to be very clear either and in the view of the Bryant majority not very comprehensive.

The police received a phone call in the early hours of April 29, 2001 stating a man had been shot and that he was at a gasoline station. Five officer independently arrived on the scene. Each officer asked the man, what happened, who did it, and where did it happen. He told them that Rick shot him and that it happened at Rick’s house. The victim, Anthony Covington later died of the injuries.

The prosecutor then entered Covington’s statements into evidence at trial. The Michigan Supreme Court reversed the conviction on confrontation grounds and the state appealed to the United States Supreme Court. The Supreme Court, in a decision by Justice Sotomeyer yesterday reversed the decision of the Michigan Supreme Court. The U. S. Supreme Court held that Covington’s answers to the questions were not testimonial in that the police were fulfilling their duty to protect citizens during an ongoing emergency.

The court came to the conclusion that the police officers were attempting to prevent other people from being shot by trying to find out where the shooter was located and whether the victim was in danger of being shot again. But as Justice Scalia points out in dissent the questions asked by the police were clearly testimonial. They did not ask questions regarding the serious injuries to Covington. All five officers consecutively asked the same questions to make sure that the testimony would not change and one of the officers admitted that considering the fact that the testimony would be preserved if Covington died. There was no shooter nearby and it would be unlikely if there was a shooter nearby that he/she would shoot anyone with five police officers surrounding Covington. The crime had been commited and there was no current emergency. As a result there was no public emergency that needed to be handled and the police were carrying out their duty to collect evidence and testimony for trial. Both Justices Sotomeyer and Scalia agree that the statements must be looked at objectively. But Sotomeyer looks at the statements from the point of view of the police while Scalia looks at the statments from the point of view of the witness. After all it is the witness’s statement that must pass confrontation grounds approval. It is clear that Covington was attempting to provide information that could be used in a prosecution.