Supreme Court Review: Confrontation Clause

The Court had two big Confrontation Clause cases last term, continuing a saga initiated by the blockbuster 2004 decision in Crawford v. Washington. Crawford rejected the old reliability test for the use of hearsay evidence at trial in favor of a purportedly bright-line rule: The Confrontation Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

The fatal weakness of the rule, of course, lies in the Court’s failure to define what is testimonial.


We’ve had to endure a steady stream of post-Crawford opinions attempting with not a lot of success to bring some clarity to what is testimonial. Tellingly, both of the cases last term required the Court to clarify its holdings in earlier post-Crawford cases.

It is interesting to look at these cases from the standpoint of what they say about the Court’s commitment to ensuring convictions of the guilty.  Crawford purported to reject reliability as the touchstone of Confrontation Clause analysis. The Court seemed to be staking out a strong position that constitutional principle should trump putting all reliable evidence of guilt in front of the jury (in stark contrast to the contrary position taken in the Fourth Amendment cases). One of the new cases seems to adhere to that absolutism, while the other does not.

Let’s take the more absolutist case first: Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).

Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, which was duly recorded in a written report by a lab analyst named Caylor. At trial, the State offered Caylor’s report into evidence, but did not call Caylor as a witness. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed.” Instead, the State called Razatos, another lab worker, who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures in general and the meaning and reliability of the report. The evidence came in over Bullcoming’s objection, and the defendant was convicted.

As Bullcoming worked its way up the court system, the U.S. Supreme Court in 2009 decided Melendez-Diaz v. Massachusetts, holding that a forensic laboratory report was testimonial and could not be used as evidence as against the defendant in a drug prosecution if the defendant did not have an opportunity to cross-examine the analyst who prepared the report.

The State argued that Bullcoming was distinguishable on a number of grounds. Most significantly was the presentation of live, expert testimony at trial to explain the report, which gave Bullcoming an opportunity for cross-examination. Nothing doing, said the Court:

[S]urrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. Significant here, Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station.

More fundamentally, as this Court stressed in Crawford, “[t]he text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.” 541 U. S., at 54. Nor is it “the role of courts to extrapolate from the words of the [Confrontation Clause] to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.” Giles v. California, 554 U. S. 353, 375 (2008). Accordingly, the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.

So, Bullcoming ends up being a rather extraordinary endorsement of constitutional absolutism. The rule is what the rule is, and we don’t really care about whether its rigid application results in the exclusion of reliable evidence of guilt. To be sure, in Bullcoming, there is this intriguing possibility that the analyst was corrupt or incompetent and that cross-examination might actually have been devastating to the state’s case. But the Court does not treat this as crucial to its holding. There’s no reason to think that the Court intends for its holding in Bullcoming to be limited to cases in which there are credibility problems with the missing analyst. Nor does the Court seem to care at all that in the vast majority of cases, the analysis called to testify will have no specific recollection of the defendant’s test. The testimony of Caylor will probably sound an awful lot like the testimony of Razatos: “I don’t know anything about this particular defendant’s test, but here’s the way we normally do things in the lab . . . .”

In addition to rejecting the significance of surrogate testimony, the Court also rejected the state’s other proffered ground for distinguishing Melendez-Diaz: in the earlier case, the lab report was contained in a sworn affidavit, while in Bullcoming the report was not sworn. The diminished formality of the Bullcoming report, however, did nothing to change its testimonial character.

One last observation about Bullcoming. Justice Sotomayor wrote a concurring opinion in which she emphasized the narrowness of the Court’s holding. Since she was a necessary part of the 5-4 majority, her comments deserve note. In general, the opinion seems to reflect a less absolutist stance on the Confrontation Clause than the majority opinion, although she signed on to all of the aspects of the majority’s reasoning discussed above. Coupled with her opinion in Bryant, which I’m about to get to, it seems safe to say that Sotomayor has mixed—perhaps not entirely coherent—feelings about Crawford, and that her addition to the Court may conceivably prove decisive in slowing or halting the so-called Crawford revolution. In any event, here’s what she said in Bullcoming:

I highlight some of the factual circumstances that this case does not present. First, this is not a case in which the State suggested an alternate purpose, much less an alternate primary purpose, for the BAC report. For example, the State has not claimed that the report was necessary to provide Bullcoming with medical treatment. . . .

Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. . . .

Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted). We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.

Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph.

So, obviously, Sotomayor is wink-wink, nudge-nudge inviting prosecutors in later cases to try to circumvent Bullcoming in these four different ways.

The second Confrontation Clause case last term was Michigan v. Bryant, 131 S. Ct. 1143 (2011), in which the Court held that a shooting victim’s statement to police identifying the defendant as the shooter was not testimonial. Here’s what happened: A jury convicted Bryant of murdering Covington. Police testified that they received a dispatch that a man had been shot. They found Covington bleeding from a fatal stomach wound at a gas station. When officers asked what happened, Covington replied that Bryant had shot him through the door of a house some blocks away from the gas station. He repeatedly identified Bryant as the shooter before medical help arrived; Covington died a short time later at a hospital. The key issue at trial was the identity of the shooter. The trial judge admitted Covington’s statements to police implicating Bryant as the shooter behind the door, and Bryant was then convicted.

Bryant appealed, and Michigan’s supreme court overturned the conviction on Crawford grounds.

When the U.S. Supreme Court granted cert, some commentators thought this case would be the opportunity for the Court to clear up uncertainty over whether there was a dying declaration exception to the Crawford rule. Instead, the Court sidestepped the dying declaration issue on the ground that the state had abandoned it, ruling instead that Covington’s responses to police questioning were not testimonial.

Why? Justice Sotomayor’s opinion for the majority explained that “the circumstances of the interaction between Covington and the police objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency.”

The two key prior decisions, aside from Crawford itself, were those in Davis v. Washington, 547 US 813 (2006), in which the Court held that a declarant’s statements in a 911 call were nontestimonial, and Hammon v. Indiana, in which the Court held that statements made by an alleged assault victim to police immediately after the attack were testimonial. Davis explained as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In Bryant, the Court set about trying to clarify this test. First, the Court underscored that the test is objective:

the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. (slip op. at 13)

In determining the objective character of an encounter, the Court indicated that the existence of an emergency is “among the most important circumstances.” (14) Interestingly, and in contrast to Bullcoming’s absolutism, the Court invoked reliability considerations: “Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.” (14)

In order to distinguish Hammon, the Court further clarified that the emergency need not take the form of a threat to the declarant. Unlike in Hammon, the attacker in Bryant was still on the loose and potentially still constituted a threat to the police and the public. (Of course, the fact that the attacker no longer threatens the declarant seems to undercut the justification for assuming the statement is reliable.)

The weapon, too, matters in the analysis: “Hershel Hammon was armed only with his fists when he attacked his wife, so removing Amy to a separate room was sufficient to end the emergency. 547 U. S., at 830–832. If Hershel had been reported to be armed with a gun, however, separation by a single household wall might not have been sufficient to end the emergency.” (17)

The declarant’s medical condition also matters, although how and to what extent are left rather unclear. Here’s what the Court said:

Taking into account the victim’s medical state does not, as the Michigan Supreme Court below thought, “rende[r] non-testimonial” “all statements made while the police are questioning a seriously injured complainant.” 483 Mich., at 149, 768 N. W. 2d, at 74. The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim’s medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. (18)

Additionally—and, again, in tension with Bullcoming—formality apparently matters, too:

Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to “establish or prove past events potentially relevant to later criminal prosecution,” id., at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. Cf. id., at 826 (explaining that Confrontation Clause requirements cannot “readily be evaded” by the parties deliberately keeping the written product of an interrogation informal “instead of having the declarant sign a deposition”). The court below, however, too readily dismissed the informality of the circumstances in this case in a single brief footnote and in fact seems to have suggested that the encounter in this case was formal.  As we explain further below, the questioning in this case oc- curred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal stationhouse interrogation in Crawford. (19-20)

Another mysterious aspect of the opinion is its statement that “Davis requires a combined inquiry that accounts for both the declarant and the interrogator.” (20) Both perspectives matter, although I’m left quite uncertain what this means in practice, for instance, when the police seem to have one purpose in mind and the declarant another.

What follows in the majority opinion is then a lengthy, fact-intensive application of these various considerations to the facts of the case at hand. It’s clear from both Justice Sotomayor’s articulation of the principles governing the “primary purpose” test and her application of those principles that she envisions a Confrontation Clause analysis that is very attentive to case-specific nuances, and hence very uncertain and unpredictable. This approach is also reflected in her concurrence in Bullcoming, in which she identified four separate, small variations in the facts of the case that in her mind might have warranted a different outcome. If Sotomayor continues to be a key swing vote in Confrontation Clause cases, it seems unlikely we will ever get the clarity that lower-court judges and lawyers have been craving since Crawford. And I’m not quite sure what principle animates her approach, although there does at least in part seem to be some concern about the exclusion of reliable evidence. If that’s all there is to it, though, I don’t understand why she didn’t vote with the dissenters in Bullcoming. This reliability point, though, may help to explain why she tried in her concurrence to minimize the practical impact of the Court’s decision.

Justice Thomas’s concurring opinion also bears mention. Thomas and Sotomayor were part of the fragile 5-justice majority in Bullcoming; the fact that they “flipped” in Bryant was key to the State winning. It seems unlikely that a defendant would be able to win a Crawford-type claim in the Supreme Court without Thomas’s support, so Thomas’s views are important. And Thomas concurred in judgment only in Bryant. Thomas does not support the open-ended primary purpose test that Sotomayor favors, but instead emphasizes the formality and solemnity of the hearsay statements. Here’s what Thomas had to say:

The majority’s analysis⎯which relies on, inter alia, what the police knew when they arrived at the scene, the specific questions they asked, the particular information Covington conveyed, the weapon involved, and Covington’s medical condition⎯illustrates the uncertainty that this test creates for law enforcement and the lower courts. . . .

Rather than attempting to reconstruct the “primary purpose” of the participants, I would consider the extent to which the interrogation resembles those historical practices that the Confrontation Clause addressed. See, e.g., id., at 835–836 (describing “practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary”). As the majority notes, Covington interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. Ante, at 19–20, 31. The police questioning was not “a formalized dialogue,” did not result in “formalized testimonial materials” such as a deposition or affidavit, and bore no “indicia of solemnity.” Davis, supra, at 840, 837 (opinion of THOMAS, J.); see also Giles v. California, 554 U. S. 353, 377–378 (2008) (THOMAS, J., concurring). Nor is there any indication that the statements were offered at trial “in order to evade confrontation.” Davis, supra, at 840. This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate. (1-2)

Thomas’s approach is thus simpler in the sense that it is more focused and there are fewer variables. At the same time, it is not altogether clear to me that his test yields substantially more predictable results.

Justice Scalia dissented, perhaps even more caustically than usual. “Instead of clarifying the law,” he charged, “the Court makes itself the obfuscator of last resort.” (1) Like Thomas, Scalia wants a simpler, more objective test than Sotomayor’s version of the primary purpose test. And, also like Thomas, Scalia would emphasize solemnity, although he seems to have a different idea of what that term means than Thomas. Although he does not reject the concept of “primary purpose,” he seems to have a different idea of what this means than Sotomayor. Here’s what Scalia says:

Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both— when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused. (3)

So, why did Covington’s statements have the requisite solemnity and purpose? Here’s what Scalia said:

From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch.

Covington’s pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid.

Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning.

So, here we have Scalia and Thomas both pushing a more narrowly focused, objective test than the majority; both invoking the idea of solemnity as a critical touchstone; both treating the facts of Bryant as “absurdly easy” (to quote Scalia), but coming to diametrically opposite conclusions. It seems that for Thomas solemnity has connotations of formality and deliberateness that are lacking from Scalia’s sense of the term.

In any event, Scalia rightly notes that the majority opinion creates a potentially expansive hole in Crawford protections for defendants accused of violent crimes:

Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” Ante, at 27. It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later. Ante, at 28. . . . This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a “potential threat to . . . the public” persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plausible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses.

Justice Ginsburg also dissented in Bryant. She did not sign onto Scalia’s opinion, but signaled essential agreement with Scalia’s approach. Her short dissent, though, focused instead on the dying declaration exception and suggested that in a case in which the issue were properly preserved she would be willing to recognize such an exception to the Crawford rule.

Where do we go from here? Bryant is a fascinating case, in part, because it puts on display what a tenuous and fractious majority it is on the Court that favors the Crawford approach. Of the five justices who supported Crawford rights in Bullcoming, four wrote separate opinions in Bryant, and not one of them formally signed onto the opinion of any other. The fifth justice in the Bullcoming majority, Kagan, remains a cipher because she did not write in Bullcoming and did not participate at all in Bryant.

Bullcoming demonstrates that the five can sometimes come together, but Bryant shows some important differences of perspective. Sotomayor seems to want to inject reliability concerns back into the Confrontation Clause analysis without overruling Crawford, and she seems quite comfortable with a mushy, totality-of-the-circumstances test. The others take more of an absolutist position, and prefer a more objective test. Scalia and Ginsburg want to focus on the declarant’s intent, with what appears to me something of a presumption that statements made in response to police questioning are testimonial. Thomas, for his part, wants a more limited definition of testimonial that would require a higher level of formality and/or an intent to evade the Confrontation Clause.

In any event, the Court obviously just can’t get enough of the Confrontation Clause, so we have yet another addition to the Crawford line on the docket for the new term, Williams v. Illinois, 939 N.E.2d 268 (IL). This case brings us back to forensic evidence, and presents a test of the limits of Melendez-Diaz and Bullcoming. In fact, Williams seems to fit within one of the questions on which Sotomayor expressly reserved judgment. Williams was charged with sexual assault. The rape kit was sent to a private lab, which produced a DNA profile of the attacker for the Illinois State Police crime lab. An ISP forensic analyst then determined there was a match between the attacker’s profile and Williams’. The analyst testified to this effect as an expert witness at Williams’ trial. The private lab’s report was not admitted as evidence, but the results were discussed in the expert’s testimony. The case is thus potentially distinguishable from Bullcoming inasmuch as the hearsay report was not admitted into evidence. Odds seem good that Sotomayor will buy the distinction and join the Bullcoming dissenters in a 5-4 decision in favor of the state. I must say, though, that it is hard for me to see a good, principled reason why an otherwise constitutionally objectionable report becomes okay if its contents are described by an expert witness rather than directly admitted into evidence.