Bryant v. Michigan and the Supreme Court’s Failed Approach to the Confrontation Clause

Earlier this year, the U.S. Supreme Court, in Michigan v. Bryant, held that Richard Bryant did not suffer a Sixth Amendment violation at his murder trial when police testified (over his lawyer’s objection) about the dying words of Anthony Covington, identifying Bryant as his shooter.

The decision rested on the High Court’s determination that Covington’s statement to the police was not “testimonial” and therefore did not trigger Bryant’s Sixth Amendment right to be confronted with the witnesses against him.  Bryant, the Court concluded, accordingly had no constitutional right to cross-examine Covington.

This case invites us to reconsider the Court’s current approach to the Sixth Amendment right of confrontation.

The Right of Confrontation

The text of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  Courts have long understood these words to require, at the very least, that if a witness testifies for the prosecution in a criminal case, then the defendant has the right to cross-examine that witness.

Such cross-examination serves to expose weaknesses in the witness’s testimony—weaknesses that can emerge from the witness’s own mouth.  For example, it is enormously helpful to the defense to have the prosecution witness who just gave stirring testimony about the defendant’s vicious crime immediately acknowledge on cross-examination that the witness and the defendant have hated each other for decades, or that the witness is receiving a large sum of money from the prosecutor for her expert (and pro-prosecution) testimony.

Ordinarily, of course, the defendant will have the opportunity to cross-examine each of the prosecution’s witnesses after that witness has testified against her.  Occasionally, though, if the witness dies or becomes otherwise unable to undergo cross-examination following his testimony for the government, the defendant has the right to have the judge either instruct the jury to disregard the witness’s testimony altogether, or—in the event that such an instruction would be futile—declare a mistrial so that the defendant can be tried without enduring the taint of un-cross-examined testimony.

If the “accuser” is a live witness, the right of confrontation is accordingly clear.  When a live witness comes to court and testifies against a criminal defendant, the defendant must have the opportunity for cross-examination.  End of story.

What Happens When the Accusing “Witness” Does Not Testify Live at Trial:  Sir Walter Raleigh’s Case

More vexing questions arise when the person bearing witness against the accused is not a live witness at his trial.  A classic historical case that helped inspire the Confrontation Clause is the 1603 treason trial of Sir Walter Raleigh, and it involved an accuser who did not appear at the defendant’s trial.

Raleigh’s accuser was Lord Cobham, who gave a sworn statement implicating Raleigh to officers of the Crown outside Raleigh’s presence.  When Cobham’s accusations were introduced in evidence, Raleigh asked for the opportunity to examine Cobham in person, believing that Cobham would recant.  Raleigh’s request was denied, and he was convicted, imprisoned, and—many years later—executed, all without ever having had the chance to question Lord Cobham.  Our founding fathers viewed what happened as grossly unjust.

The consensus among scholars and judges reflects this antipathy to Raleigh’s experience, and holds that the Sixth Amendment right of confrontation extends beyond the class of live witnesses who testify at a defendant’s criminal trial—a category that would not have included Lord Cobham’s sworn accusation.  The right accordingly applies to some subset of out-of-court statements introduced against the defendant.

But which subset, exactly?  Controversy emerges on (1) the question of when the confrontation right does or does not apply to out-of-court statements, and (2) the question of how one can know in advance, as new cases come up, whether or not the right is implicated in a given set of circumstances.

The Relationship Between Hearsay and Confrontation:  Roberts and Crawford

When we refer to accusers other than live witnesses, we are talking about the introduction of hearsay against the criminal defendant.  Hearsay is an out-of-court statement that is offered at trial as proof of what the statement asserts.

Imagine, for instance, that I tell you “I saw John Doe steal Jane’s wallet.”  You later appear as a witness for the prosecution at John’s trial for larceny (theft) and report what I said to you.  If the prosecution is introducing your testimony about my out-of-court statement to prove that John really did steal Jane’s wallet, just as I claimed that he did, then the evidence offered is hearsay.

One could take the view that every time a prosecutor offers hearsay into evidence at trial, this offer should trigger the defendant’s right to cross-examine the out-of-court speaker (me, in the hypothetical case above).  Under this approach, if John does not get the opportunity to cross-examine me about my statement accusing him of theft, then the Sixth Amendment bars the admission of my words against John (as heard and reported by you) in evidence at his trial.

The Supreme Court has consistently recognized that at least some hearsay will receive precisely the treatment suggested above—exclusion in the absence of an opportunity to examine the out-of-court accuser.  Over the years, however, the Court has announced some principles that limit the scope of the Sixth Amendment right to exclude hearsay.

One such principle is that if the out-of-court speaker (such as I, in the above example) testifies at trial (on whatever topic), then the Sixth Amendment does not bar the prosecution from introducing the witness’s earlier out-of-court statement, because the defendant can then cross-examine the witness about it.  That is, delayed cross-examination (which occurs long after the out-of-court accuser’s original statement) satisfies the defendant’s right of confrontation.

Another limiting principle announced by the Court is that in the case of an out-of-court speaker who does not appear as a trial witness, her hearsay statements might still survive Sixth Amendment scrutiny if (1) the defense had a prior opportunity to cross-examine her about the statement, and (2) the speaker is unavailable to testify at trial.

Beyond adhering consistently to these principles, however, the Supreme Court has, in the last three decades, taken two very different approaches to the status of hearsay under the Confrontation Clause, one from 1980 until 2004, and the other from 2004 to the present.

The Supreme Court’s First Confrontation Clause Approach

In Ohio v. Roberts, the Supreme Court held that even though all hearsay offered against a criminal defendant might potentially trigger the Sixth Amendment right of confrontation, this right could be satisfied without any actual cross-examination if the hearsay were sufficiently reliable.  Reliability, in this scheme, could obviate the need for cross-examination.

Developing this idea further, the Court ruled that any hearsay falling within a “firmly rooted” hearsay exception would satisfy the Confrontation Clause without the need for cross-examination.  Similarly, the Court said, hearsay falling outside the reach of such longstanding exceptions could also qualify for this treatment, provided the hearsay was uttered in the presence of “particularized guarantees of trustworthiness.”

Under this framework, difficulties would occasionally arise over the admission of hearsay that did not fit a firmly-rooted exception.  Parties would then argue over what could or could not count as a particularized guarantee of trustworthiness sufficient to satisfy the Sixth Amendment right of confrontation.

The Supreme Court’s Second Confrontation Clause Approach

In 2004, in Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts.  It held in Crawford, and in the cases that followed, that the Roberts approach to the Confrontation Clause implications of hearsay had been both over-inclusive and under-inclusive.  Roberts was over-inclusive in that not every person making an out-of-court statement later offered against the accused for its truth would necessarily qualify as a “witness” triggering the right of confrontation.  Some hearsay, in other words, has no Sixth Amendment implications at all.

Roberts was under-inclusive as well, in the Court’s eyes.  That is because when hearsay does qualify as testimonial under the Sixth Amendment, particularized guarantees of trustworthiness cannot lawfully replace the defendant’s right to cross-examine the accuser.  The Supreme Court ruled that when the government offers to introduce testimonial hearsay—hearsay of the sort that triggers the Confrontation Clause—then, absent an opportunity for the defendant to cross-examine the person who made the statement, the judge must sustain a defense objection to the evidence.

This new regime appeared to have a lot going for it.  First, as Justice Scalia famously said for a majority in Crawford, “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”

Pragmatically, moreover, most hearsay at criminal trials would continue to come in or to stay out purely on the basis of sub-constitutional evidence rules, including hearsay exceptions, because much hearsay would not qualify as “testimonial” at all.  The pretense of Roberts—that evidence rules could govern the admission of hearsay while simultaneously providing a surrogate for Sixth Amendment confrontation—would now give way to a more honest regime.  Now, evidence rules would govern much hearsay, but testimonial hearsay would stay out absent an opportunity for real cross-examination, thus protecting the defendant’s right to be confronted with his accusers and better fulfilling the promise of the Sixth Amendment.

The Crawford Problem

Though it began with great promise, the new-and-improved Crawford regime turned out to have some serious drawbacks, including—notably—an expanded uncertainty of the sort that had soured the Court on Roberts.

Though it may sound informative to say that only “testimonial” hearsay will trigger the Sixth Amendment, it has been quite difficult for the Court to define precisely which hearsay does and which does not count as testimonial.

Does a 911 call by a domestic-violence victim contain the victim’s “testimony”?  Is a conversation between the police and a domestic-violence victim after they arrive at her home “testimonial”?  Does a laboratory technician’s recording of her findings (such as whether a substance is or is not heroin) count as her testimony?

The Court has answered each of these questions (more or less, by saying, respectively, “no,” “yes,” and “yes”), but recent decisions have divided the Justices, who do not agree on exactly what features of out-of-court statements are essential to making them “testimonial” for constitutional purposes.  Indeed, the dissent in one of the cases, Melendez-Diaz v. Massachusetts, accused the majority of construing Confrontation Clause doctrine as “a body of formalistic and wooden rules, divorced from precedent, common sense, and the underlying purpose of the Clause.”  The dissent went on to openly mock “the formalistic and pointless nature of the Court’s reading of the [Confrontation] Clause.”

Even among the Justices on the winning side, there has been disagreement over how one ought to reach the conclusion that particular evidence does or does not qualify as testimonial.  Justice Thomas, for example, applies a far narrower test in which only formalized statements (such as affidavits) trigger the right of confrontation.  In contrast, Justice Scalia and others embrace an approach deeming hearsay testimonial when the purpose of the statements was to establish or prove some fact (rather than, for example, to resolve an ongoing emergency).

In Bryant, moreover, it becomes apparent that the purpose test (or, now, the “primary purpose” test) leaves unanswered the question of whose primary purpose matters in the case of a conversation or interrogation session:  the interrogator’s or the speaker’s?

Due to disagreements over the meaning of “testimonial,” as well as indeterminacy in how any given hearsay might fare under the announced test, each Confrontation Clause case on which the Court has granted review since Crawford, has left attorneys and commentators guessing until the very end—as we do in reading a good suspense novel—how will this one come out?

The Bryant Case

In the case of Richard Bryant, police officers came to a gas-station parking lot in response to a radio dispatch reporting that a man had been shot.  Police there found mortally-wounded gunshot victim Anthony Covington in great pain.  Police asked Covington questions, in response to which he told them who had shot him and where the shooting had occurred.  Covington later died, and Bryant was arrested and charged with murder

At Bryant’s trial, over defense objection, police testified about their conversation with Covington, in which Covington identified Bryant as his attacker.  On appeal, Bryant argued that Covington’s out-of-court statements were “testimonial” and therefore were admitted into evidence in violation of the Sixth Amendment Confrontation Clause, since Bryant had never had the opportunity to cross-examine Covington about them.

The Court had several alternatives available to it, in deciding how to resolve the Confrontation Clause issue.  First, it could have found that the victim’s statement was testimonial and therefore should have been excluded under the Sixth Amendment.

Second, the Court could have held that the statement was testimonial, but that it fell within a special, historically-recognized category of admissible un-cross-examined testimonial statements, such as dying declarations, and could therefore come into evidence.  The Court had previously indicated, for example, that testimonial out-of-court statements might be admitted without cross-examination against a defendant who had deliberately made the out-of-court speaker unavailable with the aim of preventing his testimony.  Third and finally, the Court could have said that the victim’s statements in Bryant were not testimonial, because the primary purpose of the interrogation was not to establish or prove some fact.

The Court chose the last of these options, holding that the objectively apparent primary purpose of the conversation between Covington and the police was to address the emergency of Covington’s at-large shooter and thereby protect the public and the police (if not the already-dying victim).

Only five Justices joined the majority opinion, however, while the remaining participating Justices either concurred in the judgment (as Justice Thomas did, reiterating the superiority of the formality test of “testimonial,” under which a conversation with a dying man in a parking lot would not qualify, regardless of anyone’s “primary purpose”) or dissented (as Justice Scalia did, joined by Justice Ginsburg, attacking the majority for distorting the primary-purpose test to arrive at a desired but plainly incorrect result).

Confrontation:  Returning to Roberts as a Practical Alternative

Now that we have had the opportunity to witness the development of the Crawford approach to the Confrontation Clause for seven years, it seems to have delivered far less than what it promised.  Most importantly, it has yielded neither determinacy nor predictability in the law.

The Roberts approach, of course, did not always lead to predictable results either.  In its favor, however, was the fact that it minimized the zone of uncertainty by consistently admitting evidence falling within firmly rooted hearsay exceptions and by ordinarily excluding other hearsay reporting the words of absent speakers whom the defense never had the chance to cross-examine.

Furthermore, the longstanding evidence rule against hearsay and its various exceptions, like the Sixth Amendment Confrontation right itself, has generally aimed (however imperfectly) to guard against admission of out-of-court statements by speakers whose words could not be fairly evaluated without an opportunity for cross-examination.

It may be time now to return to the regime of Ohio v. Roberts, through which we allowed the rule against hearsay and its exceptions to do much of the work of protecting criminal defendants from un-cross-examined out-of-court statements offered in evidence for their truth.  The Crawford experiment has failed, and so long as the Court adheres to Crawford, it promises more confusion and indeterminacy for the foreseeable future.