The Supreme Court of Michigan held that the question whether the victim's statements would have been admissible as "dying declarations" was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances. The trial court ruled that the statements were admissible as excited utterances and did not address their admissibility as dying declarations. 483 Mich., at 153-154, 768 N. W. 2d, at 76-77. This occurred prior to our 2004 decision in Crawford v. Washington, 541 U. S. 36, where we first suggested that dying declarations, even if testimonial, might be admis- sible as a historical exception to the Confrontation Clause. Id., at 56, n. 6; see also Giles v. California, 554 U. S. 353, 358-359 (2008). We noted in Crawford that we "need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations." 541 U. S., at 56, n. 6. Because of the State's failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here. See also post, p. __ (GINSBURG, J., dissenting).

Ginsburg:

Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See 483 Mich. 132, 156-157, 768 N. W. 2d 65, 78 (2009). The matter, therefore, is not one the Court can address in this case.