Supreme Court Takes A Bite out of Confrontation Clause

In a split decision today, the Supreme Court has ruled a dying man's identification of his killer is admissible evidence and does not violate the Sixth Amendment's Confrontation Clause. The opinion (available here) was written by Justice Sotomayor.

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.”

Justices Ginsberg and Scalia were among the dissenters. Scalia's dissent is particularly harsh. He points out that the statement was not taken for safety in an emergency situation, but for investigation of a crime:

"Today's tale...is so transparently false that professing to believe it demeans this institution,"


Scalia continues:

In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541U. S. 36 (2004), I dissent.

Unfortunately, the majority, while giving lip service to the protections of the Confrontation clause, manages to mangle them, using the rubric of the "primary purpose" analysis:

Even where such an interrogation is conducted with all good faith, introduction of the resulting statements at trial can be unfair to the accused if they are untested by cross-examination. Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.

When, as in Davis, the primary purpose of an interrogation is to respond to an “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.

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    Wouldn't this fall (none / 0) (#1)
    by Harry Saxon on Mon Feb 28, 2011 at 11:46:10 AM EST
    under the Dying declaration rule?

    In the law of evidence, the dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. Case law has ruled out this hearsay exception in many criminal law trials, because the criminal defendant has the right to confront witnesses against them.[1] Case law will dictate how this rule is used in the future.

    Click or Wiki Me

    Well, the second sentence of the (none / 0) (#2)
    by scribe on Mon Feb 28, 2011 at 11:52:49 AM EST
    quote you present should have made clear that, even though it might not be inadmissible hearsay, it would nonetheless be inadmissible as violative of the Confrontation Clause.

    Until today.  


    I don't think that's true (none / 0) (#3)
    by jbindc on Mon Feb 28, 2011 at 11:57:03 AM EST
    FN 1 (none / 0) (#4)
    by andgarden on Mon Feb 28, 2011 at 01:26:06 PM EST
    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).


    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.

    This comment may be "squashed" also, but (none / 0) (#5)
    by Gerald USN Ret on Mon Feb 28, 2011 at 01:34:19 PM EST
    So, if a witness/victim is killed by the perpetrator, the testimony (statements, screams, et al) by the witness/victim are to be ignored.

    What that kind of strict interpretation would mean is that only the words of "the last man standing" matter.

    That would seem to give the criminal a power he doesn't deserve.

    Its kind of scary (none / 0) (#6)
    by Socraticsilence on Mon Feb 28, 2011 at 07:34:31 PM EST
    The degree to which Scalia is more principled and less politically (as opposed to philosophically) driven than his Conservative co-justices.