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Confrontation and "Testimonial" Hearsay

Seven years ago, the Supreme Court revamped the jurisprudence of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004).  No longer would the admissibility of a hearsay statement of an unavailable witness depend on its reliability.  Instead, the statement would be excluded if it was "testimonial" in nature.  If not, its admissibility is a matter for the jurisdiction's hearsay rule.  What the heck does "testimonial" mean?  They would work that out later.

Today in Michigan v. Bryant, the high court addressed whether on-the-scene statements from a wounded and dying shooting victim are "testimonial."  The answer is "it depends," and it depends on quite a lot.  The test is whether the "primary purpose" of the question is to deal with the emergency as opposed to gathering evidence for prosecution of the perpetrator.  As in Fourth Amendment law, the circumstances to be examined are objective, not probing the subjective intent of police officers. 

Justice Sotomayor, for the majority of five, wrote a long and fact-intense opinion explaining why this case passed the test.  Justice Thomas, splitting with Justice Scalia on this point, wrote a brief concurrence in the judgment with a simpler test.  The on-the-scene questioning bears no resemblance to formal testimony or a deposition or affidavit.  "This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate."

Justices Scalia and Ginsburg dissent.  So much for predictable "liberal v. conservative" labeling.

Justice Kagan was recused, having appeared as amicus in support of the state while SG.  See docket.

Congrats to the Wayne County (Detroit) Prosecuting Attorney's Office.

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