By Tim Feulner

On October 5, the Supreme Court heard arguments in Michigan v. Bryant in the Court’s latest attempt to wrestle with the meaning of the Confrontation Clause. The case stems from a 2001 shooting in Detroit.  When Detroit Police officers responded to the reported shooting, they found a severely wounded Anthony Covington lying on the ground at a gas station.  After the officers spoke with Covington, they arrested Richard Bryant based on Covington’s statements that implicated Bryant in the shooting.  Because Covington died two hours later, he was unavailable to testify at Bryant’s subsequent trial. At that trial, the judge admitted the hearsay statements made by the victim to the police on the night of the murder as excited utterances, and Bryant was convicted of second degree murder.  Bryant appealed his conviction arguing that the use of the victim’s hearsay statement violated his Sixth Amendment right to “be confronted with the witnesses against him,” and the Michigan Supreme Court reversed his conviction finding that the admission of the victim’s statements did violate the Confrontation Clause.

            This case presents the Court with a challenging application of Confrontation Clause jurisprudence under the Court’s decisions in Davis v. Washington andCrawford v. Washington. Since Crawford and Davis, the focus has been on whether the out-of-court statement is “testimonial” in nature. If it is testimonial, the statement can only be admitted when the defendant has had the opportunity to cross-examine the declarant of the statement in question and the declarant is unavailable to testify at the trial. Although the exact contours of the testimonial inquiry are still being determined, the Court has indicated that statements “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” are testimonial (like the statements at issue in Crawford) while statements that are made to enable the police to respond to the an ongoing emergency are non-testimonial (like the statements at issue in Davis). For those hoping that this case will finally add clarity to the Confrontation Clause, don’t hold your breath. During oral arguments, both parties attempted to fit the victim’s statements into the narrow categories of statements that were discussed in Davis and Crawford.  Whatever the result, it is likely that the Court’s opinion will provide more guidance to lower courts about how to determine if a statement is testimonial in nature and will likely provide more clues to the Court’s view of the relationship between the Confrontation Clause and traditional exceptions to the hearsay rule, such as dying declarations.