TJLR Online

BYPASSING BRYANT: A BRIGHT-LINE FROM DAVIS TO CONFRONTATION
by Michael Klitzke

“[I]t is not the custom of the Romans to hand over any man before the accused meets his accusers face to face and has an opportunity to make his defense against the charges . . . .”[1]

 

INTRODUCTION

 

The right to confrontation is obligatory on the states and has traditionally been considered “a fundamental right, essential to a fair trial . . . .”[2]  This fundamental right has recently been eroded and must be revitalized.  The Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”[3]  It aims at protecting criminal defendants from evidence that is unreliable by subjecting it to cross-examination.[4]  But not all out of court statements are covered by the right to confrontation.[5]  The issue since Crawford has been which out of court statements are excluded from the right to confrontation.[6]

 

The common law right to confrontation began to emerge in the 16th and 17th centuries in response to politically motivated trials in England.[7]  In one of the most famous trials, Sir Walter Raleigh was convicted and executed for treason.  Sir Walter Raleigh’s conviction and execution were based solely on the written confession of his alleged accomplice, Lord Cobham, who remained in custody throughout the trial.[8]  Throughout the trial Sir Raleigh asserted that Lord Cobham had recanted his testimony and begged to have Lord Cobham testify in person.[9]  “I am accused . . . without any Witness.  . . . let [Lord Cobham] be brought, being alive, and in the house; let him avouch any of these things, I will confess the whole Indictment, and renounce the king’s mercy.”[10]

 

Even more alarming than the lack of confrontation, in the case of Sir Raleigh, was Justice Gawdy’s declaration: “The Statute you speak of concerning two Witnesses in case of Treason is found to be inconvenient; therefore by another law it is taken away.”[11]  Judicial atrocities like Raleigh’s Case, were a motivating factor for the Framers of the Bill of Rights decision to enshrine the right to confrontation in the Sixth Amendment to the Constitution.[12]  By including the right in the Constitution, the Framers ensured that it would remain part of the supreme law of the land.  However, the constitutional right to confrontation has not been interpreted nor applied consistently by the Supreme Court.

 

In 1980, the Supreme Court weakened the right to confrontation by binding it to the rule against hearsay and its many exceptions.[13]  In 2004, in Crawford v. Washington, the Supreme Court attempted to cure the problem by redefining confrontation jurisprudence.[14]  However, it was not until 2011, in Michigan v. Bryant,[15] that the Supreme Court’s decision in Crawford proved to be a failure.[16]  The Crawford series of cases leave us with an ambiguous standard, making it nearly impossible for practitioners to know whether out of court statements will be admissible in a criminal trial.[17]  This ambiguity undermines the right to confrontation by leaving it dependent on the court’s discretion.[18]  The aspirations of Crawford[19] can only be realized by abandoning Bryant, and returning to the concept of the “primary purpose” test set forth in the Supreme Court’s 2006 decision in Davis v. Washington.[20]

 

This Article examines the aftermath of Bryant and proposes a new test for determining whether the “primary purpose” of an eyewitness statement is testimonial and therefore subject to the Confrontation Clause.  Part I defines reliability and then presents the evolution of the Confrontation Clause from Roberts through Bryant.  This part concludes with examples of state courts’ inconsistent application of Bryant.  Part II argues that the Bryant approach has destroyed the defendant’s right to confrontation and replaced it with a privilege conferred by the court in its discretion.  Part III presents a new test, the Functional Primary Purpose test, that furthers the aspirations of Crawford and utilizes the concept of the “primary purpose” test in Davis.  For the purposes of this Article, the declarant is presumed to be unavailable at trial and there has been no prior opportunity for cross-examination.[21]

 

I.  EVOLUTION OF THE CONFRONTATION CLAUSE

 

The right to confrontation has changed over the centuries.[22]  In order to make the recent changes understandable, this section begins by defining reliability as used in confrontation cases and this Article, and then presents the evolution of the Confrontation Clause from Roberts through Bryant.  The section concludes with examples of state courts applying the Bryant totality of the circumstances test.  These examples evidence the inconsistency inherent in Bryant’s discretion heavy approach that determines whether a criminal defendant has the right to confront his accuser.   

 

A.  Defining Reliability

 

Prudence demands that the varying usage of “reliability” be explained.  There are at least three usages of the term in the cases and this Article.  First, reliability is used in relation to exceptions to the rule against hearsay.[23]  The hearsay exceptions are premised “upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial.”[24]  Hearsay exceptions presume the substance is reliable based on the circumstances that existed at the moment the declarant spoke. 

 

The second use of “reliability” refers to the “indicia of reliability” test in Roberts which generally follows the above hearsay exceptions.[25]  In these first two usages, the content of the statement is deemed substantively reliable, and thus admissible, because, under the circumstances, it was unlikely there was deliberate or conscious misrepresentation by the declarant.[26]

 

The third use of “reliability” is in relation to the procedural application of the Confrontation Clause.  The Confrontation Clause requires that testimony be procedurally reliable, that is: “reliability be assessed . . . by subjecting it to cross-examination.”[27]  In the following cases, the U.S. Supreme Court struggles with and confuses the difference between substantive and procedural reliably in defining when the right to confrontation exists. 

 

B.  Ohio v. Roberts

 

In Roberts, the Court needed to determine whether a defense witness’ preliminary hearing testimony was sufficient to meet the requirements of the Confrontation Clause.[28]  The Supreme Court began by noting that there are many exceptions to the rule against hearsay and that the right to confront one’s accuser was not intended to invalidate all hearsay exceptions.[29]  The Court held that where the declarant is not available at trial and the defendant did not have a prior opportunity for cross-examination, the declarant’s statement is admissible “only if it bears adequate indicia of reliability.  Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.  In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”[30]

 

Under the indicia of reliability test, the preliminary hearing testimony had sufficient indicia of reliability because defense counsel explored the events in detail at the preliminary hearing.[31]  After twenty-four years of applying Robert’s indicia of reliability test, the Supreme Court abruptly changed confrontation jurisprudence.

 

C.  Crawford v. Washington

 

In Crawford, the Supreme Court overruled Roberts and established a new test for determining whether the Confrontation Clause applies to a particular statement.[32]  Here, Sylvia and Michael Crawford went in search of, and found, Lee.[33]  A fight between Crawford and Lee ended when Crawford stabbed Lee in the torso.[34]  While in police custody, Sylvia made recorded statements about the fight.[35]  The trial Court admitted the recording at trial under the indicia of reliability test.[36]

 

On appeal, the U.S. Supreme Court explained that the “principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure" evident in Raleigh’s Case—admission of “testimonial” evidence without an opportunity for cross-examination.[37]  Ultimately, the Court overruled the Robert’s indicia of reliability test because the Framers did not intend to leave the “Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability” and “[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”[38]

 

The Court provided only the outlines of a new test and left the definition of “testimonial” for another day.[39]  The only guidance given by the court was that “testimonial” includes “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”[40]  Where nontestimonial hearsay is at issue, states have flexibility in developing hearsay law and the statements are exempted from scrutiny under the Confrontation Clause.[41]  However, where testimonial hearsay is at issue, “the Sixth Amendment demands . . . unavailability and a prior opportunity for cross-examination.”[42]  Under the new test, the ultimate goal of ensuring reliable evidence is to be achieved procedurally, rather than substantively.[43]

 

The Court reasoned that Sylvia’s statements would be testimonial, and thus inadmissible without an opportunity for cross-examination, under any definition because they were taken by police officers at the police station, while investigating criminal behavior.[44]  Therefore, Crawford’s Sixth Amendment right to confront his accuser was violated when Sylvia’s statements were admitted because Crawford did not have an opportunity to cross-examine Sylvia.[45]  The Court sought to provide a definition for “testimonial” in Davis v. Washington.[46]

 

D.  Davis v. Washington

 

Davis was decided concurrently with Hammon v. Indiana.[47]  The Court utilized the facts of these two cases to illustrate the difference between testimonial and nontestimonial.   

In Davis, Michelle McCottry made statements to a 911 operator.[48]  McCottry stated, “He’s here jumpin’ on me again. . . .  I’m in a house. . . . He’s usin’ his fists. . . . [his name is] Davis.”[49]  After the operator was informed that Davis had left in a car, the operator cutoff McCottry in order to gather information about Davis’ purpose in coming to the house and the circumstances surrounding the assault.[50]  The trial court admitted a recording of the conversation.[51]  However, only the initial statements identifying Davis were under review by the Supreme Court.[52]

 

In Hammon, police responded to a “domestic disturbance at the home of Hershel and Amy Hammon.”[53]  When the police arrived, Amy was outside and told the officers “nothing was the matter.”[54]  Inside the house, officers saw evidence of a struggle.[55]  Officers took Hershel and Amy to separate rooms and prevented Hershel from joining Amy so they could question Amy about what had happened.[56]  “After hearing Amy’s account, the officer had her fill out and sign a battery affidavit.”[57]  The trial court admitted the affidavit under the present sense impression exception to hearsay and Amy’s statements to the police officer under the excited utterance exception.[58]  These exceptions would have been sufficient under Roberts to except the statements from the Confrontation Clause.[59]

 

On review, the Supreme Court more precisely defined which police interrogations would produce testimonial statements:

 

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.[60]

 

In Davis, the Court took note that McCottry described what was transpiring, and did not describe something that had happened in the past.[61]  Further, McCottry was describing an ongoing emergency because she was calling for help against an existing physical threat.[62]  Therefore, McCottry’s statements identifying Davis as the assailant were nontestimonial.[63]

 

In dicta, the Court went on to explain that a conversation that begins with nontestimonial statements may evolve into one of testimonial statements once the need for emergency assistance ends.[64]  In that situation, the initial nontestimonial statements would not be subject to confrontation while later testimonial statements would only be admissible if the declarant is unavailable and there had been a prior opportunity for cross-examination.  In Davis, that evolution would have occurred when Davis drove away, because the physical threat to McCottry, the need for emergency assistance, had dissipated.[65]

 

In Hammon, there was no ongoing emergency when the officers arrived because the officers questioning Amy were asking about past events.”[66]  “The primary . . . purpose of the interrogation was to investigate a possible crime.”[67]  Additionally, there was a degree of formality to the conversation because the police had taken Amy to a separate room and prevented Hershel from participating in the interrogation.[68]  Therefore, Amy’s statements were testimonial because there was no ongoing emergency.[69]  

 

While Davis helped refine the definition of “testimonial,” lower courts now struggled with identifying when an “ongoing emergency” ended.  In 2011, the Supreme Court sought to resolve that confusion in Michigan v. Bryant.[70]

 

E.  Michigan v. Bryant

 

In Bryant, Anthony Covington was shot through the back door of Richard Bryant’s house.[71]  Covington then drove to a gas station six blocks away.[72]  Twenty-five minutes later, five police officers responded to a call indicating a man had been shot.[73]  As each officer arrived, they found Covington with a gunshot wound and asked him what had happened.[74]  Covington stated that Bryant had shot him through the back door of Bryant’s house.[75]  Emergency medical services arrived within ten minutes to transport Covington to the hospital where he later died.[76]  At Bryant’s trial, the five officers’ testified to Covington’s statements.[77]  Sergeant Wenturine also testified the purpose of his questions was to find out who had mortally wounded Covington.[78]

 

On review, the Supreme Court held:

 

To determine whether the “primary purpose” of an interrogation is to enable police assistance to meet an ongoing emergency, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.

. . . .

[T]he 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.[79]

 

The Court explained that the existence of an ongoing emergency is an important factor in determining the primary purpose of the interrogation because reasonable parties would be focused on ending a threatening situation, and thus the prospect of fabrication is significantly diminished and cross-examination is not required.[80]  In determining whether an ongoing emergency exists, the Court considered: whether the threat to the victim, police and the public still exists;[81] the scope of the threat, based on the type of weapon used;[82] the victim’s then existing medical condition;[83] the extent of formality in the encounter;[84] and the actions of everyone in the encounter.[85]

Ultimately, when determining the primary purpose of a statement, courts are instructed to consult all relevant information, including standard rules of hearsay.[86]  This has been dubbed the “totality of the circumstances test” because it allows judges to consider all relevant information.[87]

 

Applying the totality of the circumstances test to the facts in Bryant, the Supreme Court noted that when police officers first arrived at the gas station they knew only that someone had been shot.[88]  The police did not know “who the assailant was, or whether the assailant posed a continuing threat to Covington or others.”[89]  Thus, the officers’ questions were designed to meet the ongoing emergency.[90]  Covington told the officers he had fled Bryant’s back porch, indicating he perceived a threat, but Covington did not indicate the threat was only to him.[91]  Further extending the emergency was the range of a gun, which diminished Covington’s physical separation from Bryant.[92]  Therefore, in Bryant, the threat extended to the police and public.[93]

 

The interrogation in Bryant was informal because “the situation was fluid and somewhat confused” with officers arriving at different times and each officer asking questions that would enable them to meet an ongoing emergency.[94]  Additionally, “[Covington’s] answers to the police officers' questions were punctuated with questions about when emergency medical services would arrive.”[95]  Because there was an ongoing emergency and the interrogation was informal, Covington’s identification and description of Bryant and the location of the shooting were nontestimonial.[96]

 

F.  Application of Bryant

 

            The following are examples of courts applying Bryant

 

1.  United States v. Navarro-Montes

 

In Navarro-Montes, the defendant brought a motion in limine to exclude statements made by a codefendant to a wired jailhouse informant.[97]  The district court held the statements to the informant were nontestimonial because the codefendant did not realize he was being interrogated by an agent of law enforcement nor that the statements were being preserved for later use at trial.[98]

 

2.  Flores v. Stainer

 

In Flores, one of the victims tried to call 911 during the attack but was briefly delayed because the phone line was connected to the internet.[99]  By the time the victim was able to make statements to 911, the aggressor had already left.[100]  The district court found the statements to the police nontestimonial because the primary purpose for making the statements was to gain police protection.[101]

 

3.  State v. Glenn

 

In Glenn, a prior victim’s statements to law enforcement were at issue.[102]  Years before the alleged sexual assault in Glenn, a prior victim was raped at knife point by the defendant.[103]  After the assault ended, the defendant drove away and the prior victim walked to a restaurant, contacted law enforcement, and made statements to the responding officer.[104]  The Court of Appeals held the statements “transitioned from a nontestimonial statement into a testimonial statement after [the officer] determined that no ongoing emergency existed” and “[t]here was no indication that defendant would return to the area.”[105]

 

4.  Robertson v. Warden

 

In Robertson, the victim made statements to his sister by pointing out the shooter days after the shooting.[106]  The victim also made statements describing the shooter to the investigating detective weeks after the shooting.[107]  The district court found the statements to the sister nontestimonial because they were part of a private conversation between brother and sister.[108]  The statements made to the detective, however, were found to be testimonial because they were offered “for the truth of the matter asserted—to establish that [defendant], who fit the victim's detailed description, was the person who shot [victim].”[109]

 

5.  State v. Beadle

 

In Beadle, a four-year-old child made statements to a child protective services employee who was present only to assist the police department and not to protect the welfare of the child.[110]  The child protective services employee was acting as an agent of law enforcement.[111]  The statements were made during an interview a year after the danger to the child had ended.[112]  The Supreme Court of Washington found the statements to the child protective services employee testimonial because the primary purpose of the interview was to establish past events for criminal prosecution.[113]

 

6.  State v. Miller

 

In Miller, a four year old child made statements to a sexual assault nurse examiner (hereinafter SANE).[114]  The SANE was acting to collect evidence, via the Kansas Bureau of Investigation (KBI) sexual assault evidence collection kit, and provide medical treatment.[115]  The Supreme Court of Kansas held that even though the SANE was acting as an agent of law enforcement collecting evidence, the statements were nontestimonial because the primary purpose of the statements was medical treatment, not prosecution.[116]

 

7.  State v. Bennington

 

In Bennington, a seventy-seven year old rape victim made statements to a SANE with a police officer present, who asked “a few specific questions.”[117]  The SANE was acting to collect evidence, via the KBI sexual assault evidence collection kit, and provide medical treatment.[118]  The SANE was acting as an agent of law enforcement.[119]  The Supreme Court of Kansas held the statements were testimonial because the officer was “listening . . . with an eye toward gathering information relevant to prosecution” and asked some questions.[120]

 

II.  BRYANT HAS DESTROYED THE RIGHT TO CONFRONTATION

 

The Bryant totality of the circumstances test is ambiguous and reduces the criminal defendant’s right to be confronted with the eyewitnesses against him.  The test places maximum discretion in the court in weighing the totality of the circumstances, which has led to inconsistent outcomes.[121]  This discretion effectively destroys the right to confrontation and replaces it with a privilege conferred by the court, in its discretion.  The ambiguity inherent in this test also constrains the resources of courts and practitioners.

 

A.  Bryant Leads to Inconsistent Outcomes

 

The primary objective of Bryant was to clarify the circumstances in which the primary purpose of a statement is nontestimonial because it “enable[s] police assistance to meet an ongoing emergency.”[122]  Bryant failed to clarify the issue; instead, it has offered an ambiguous test and led to inconsistent outcomes as to when a defendant has the right to confrontation.[123]  This inconsistency is visible by looking at Davis, Hammon, and Bryant, as well as the cases that followed Bryant.

 

1.  Inconsistent with Precedent

 

Even though Bryant sought to clarify Davis, the outcome in Bryant is not consistent with the outcome in Davis or Hammon.  In Hammon, there was no emergency because the assault had already ended and the officer’s questioning Amy were investigating what happened in the past.[124]  The purpose of the interrogation in Hammon was solely to investigate a crime.[125]  In Bryant, the crime ended twenty-five minutes earlier, and took place six blocks away.[126]  The five responding officers took no actions that indicated a present threat.[127]  Sergeant Wenturine testified his purpose was to find out who had mortally wounded Covington.[128]  Even though the statements in both cases were made after the crimes ended, and were gathered with the purpose of investigating the crimes, the U.S. Supreme Court found Amy’s statements in Hammon to be testimonial and Covington’s statements in Bryant to be nontestimonial.[129]

 

Unlike in Hammon, Covington’s statements in Bryant are distinguishable from McCottry’s nontestimonial statements, in Davis.  McCottry described the attack to the 911 operator as it was happening, while Covington described past events to officers.[130]  Despite a stark temporal difference, both statements were found to be nontestimonial.[131]

 

Further, the Court in Davis opined that McCottry’s statements after Davis left the scene would be testimonial because there was no longer a need for emergency assistance.[132]  The only difference between the statements in Bryant and the statements discussed in dicta in Davis is that the victim in Bryant fled the scene of the crime while the victim in Davis did not.[133]  The defendant in each case fled the scene.[134]  The fact that both Covington and Bryant left the scene of the crime shows less of an emergency because the two were further separated.[135]  Even the added factor of a gun’s range does not account for a continued threat that extends across the city.  Even though Bryant nearly duplicated the testimonial situation the Court described in dicta in Davis, the statements in Bryant were found to be nontestimonial.[136]

 

2.  Inconsistent Application

 

 

Courts applying Bryant reach inconsistent outcomes when determining whether statements are testimonial.  Flores and Glenn presented similar facts.[137]  In both cases, the statements were made to police after the attack had ended and the attacker had left.[138]  The only difference between the cases is that more time passed before the victim in Glenn reported the attack.[139]  Despite the fact both sets of statements were made to law enforcement after the attack ended and the attacker left the scene, the courts reached opposite outcomes—the statements in Flores were nontestimonial, while the statements in Glenn were testimonial.[140]

 

The courts in Beadle and Miller also evaluated similar circumstances.[141]  The statements at issue in both cases were made by child victims to an agent of law enforcement, after the attack had ended.[142]  Additionally, the testifying witnesses were people who are generally responsible for the health of others.[143]  Again, despite similar facts, the courts reached opposite outcomes—the statements in Beadle were testimonial, while the statements in Miller were nontestimonial.[144]

 

An even more alarming inconsistency can be found between Miller and Bennington; decided by the Supreme Court of Kansas on the same day in consecutive opinions.[145]  Both cases involved statements to a SANE after the attack had ended.[146]  Both SANEs were agents of law enforcement tasked with collecting evidence.[147]  The two differences between the cases are the seventy-three year age gap between the victims, and the presence of a police officer in Bennington.[148]  Age is irrelevant under the Bryant totality of the circumstances test because courts will look at not only the age and understanding of the declarant, but also the other parties to the conversation.[149]  The presence of the police officer also should not have affected the outcome because an agent of law enforcement, the SANE, was already asking questions to collect evidence.  Despite both cases involving statements to an agent of law enforcement tasked with collecting evidence, the same court, on the same day found the statements in Miller nontestimonial and the statements in Bennington testimonial.[150]

 

Over and over courts applying Bryant to similar facts reach inconsistent results.  Because of that inconsistency, some defendants have the right to confrontation, while others are denied their Constitutional right to confrontation. 

 

3.  Categorical Propensity for Ambiguity

 

By establishing a balancing test,[151] Bryant failed to make confrontation analysis more clear.[152]  One reason for the confusion is that balancing tests provide the court with the greatest flexibility in determining the result.[153]  This flexibility allows courts to respond to different situations without being pinned down to a particular analysis that cannot account for the complexities of the case at hand.[154]  In theory, this allows the court to come up with the most fair ruling.[155]  By looking at all relevant circumstances, the court is able to “use whatever criteria [it] wants” to come to its conclusion.[156]   

 

In determining what factors to apply and what weight to give to them, the court relies on its own values and how the issue is framed by the parties.[157]  Because there is no clear line, or even a limited set of factors to consider, the results of the test are likely to be erratic in close cases.[158]  Erratic results necessarily mean some defendants will have a right to confrontation while others will not, even though the circumstances are equivalent.[159]  There is also the potential for the court to determine the result it wants, and then supply the factors necessary to reach it.[160]  This leads to confusion because a “[j]udge[] could draw the line anywhere with this standard . . . .”[161]

 

B.  Replacing a Right, with a Discretionary Privilege

 

The Confrontation Clause created a right in the criminal defendant “to be confronted with the witnesses against him.”[162]  It is a legal guarantee to criminal defendants in order to protect their liberty.[163]  The right to confrontation is more accurately described as a negative right, because the prosecutor must refrain from presenting out of court statements from declarants who are not subject to cross-examination.[164]  In effect, the right is the status quo, and can only be breached by an exception.

 

Bryant reversed the status quo by creating an ambiguous standard that requires the parties to get a judicial ruling on whether the totality of the circumstances reveal the statement to be testimonial or nontestimonial.  In having to seek a highly discretionary judicial ruling, the defendant’s right to confrontation disappears and is replaced with a judicially granted privilege.[165]  This changes the status quo—the defendant is only entitled to confrontation if the court orders it—causing the Constitutional right to confrontation to become an exception, instead of the rule.

 

C.  Effect of Ambiguity on Practitioners and Trial Courts

 

An ambiguous standard for determining one’s right to confrontation is inefficient and unnecessarily wastes judicial and practitioner resources.  Time and money are consumed drafting, filing, and arguing motions in limine and trial objections because the parties cannot determine for themselves whether particular statements will be found testimonial or not.  Because of the inability to foresee the result, defendants are more likely to challenge the admissibility of statements on confrontation grounds and force judicial decisions.[166]  On the other hand, prosecutors cannot sit back and wait for an objection that may or may not exclude key evidence.  This encourages prosecutors to bring motions to continue in an effort to delay trials until all declarant’s are available to testify.  By doing so, prosecutors avoid having to defend motions in limine and trial objections for lack of confrontation.  In the end, prosecutors would purposefully be working against the right to a speedy trial to avoid the uncertainties of the right to confrontation.[167]

 

The increase in motions in limine, motions to continue, and objections clog up court dockets.  Meanwhile the defendant remains incarcerated or subject to bail limitations while prosecutors try to avoid the issue.[168]  A test with more predictable outcomes, would allow parties to determine whether a statement is testimonial without seeking a judicial decision.  This would in turn reduce stress on court dockets by decreasing the number of lengthy fact driven decisions.

 

III.  PRESERVING THE RIGHT TO CONFRONTATION

 

This section will lay out a bright-line test for determining whether the primary purpose of an eyewitness statement is testimonial or nontestimonial.  The new test, the Functional Primary Purpose (FPP) test, seeks to build off the aspirations of Crawford and the primary purpose approach of Davis, while avoiding the ambiguity of Bryant.  In doing so, it provides practitioners and courts with a clear and reliable test for determining when a criminal defendant has the right to confront the witness.

 

A.  The Functional Primary Purpose Test

 

 

The primary purpose of an eyewitness statement is nontestimonial if: (1) the declarant believed there was an ongoing emergency affecting him or her; (2) a reasonable person in the declarant’s position would have made the same, or similar, statements to the particular hearer in order to meet the ongoing emergency;  and (3) where controverted, the prosecution can show, by clear and convincing evidence, that at least one purpose of the declarant’s statement was to seek assistance with the ongoing emergency.

 

1.  The Declarant Believed There was an Ongoing Emergency Affecting Him or Her

 

The first element of the FPP test mandates a subjective declarant focused approach by focusing on the declarant’s understanding that there is an ongoing emergency.[169]  Not only must there have been an ongoing emergency, but that emergency must affect the declarant.  This effectively rules out excited utterances by observers, first responders, and other rescuers that could be admissible under the totality of the circumstances test in Bryant.[170]

 

However, if the observer is placed in danger by the criminal actor, the emergency would evolve to affect the observer.[171]  The simplest example is where A, the criminal actor, points a gun at B, the victim.  Assuming B is within range of A’s gun, B is facing an emergency because A could shoot B.  C, a third party observer, is not facing an emergency; C is merely observing the emergency to B.  If A were to direct the gun toward C, then there would be an emergency to C because A placed C in danger.  C’s statements at that point would evolve from testimonial to nontestimonial.[172]  However, if C decided to move in front of B as a shield, C would have voluntarily placed himself in a dangerous situation and C’s statements would remain testimonial.  This prevents law enforcement agents from placing themselves in danger to create nontestimonial statements for use at trial.

 

Under this approach, statements are substantially more reliable than those admitted under Bryant.  In Bryant, the Court stated, “The existence of an ongoing emergency . . . focuses the participants on . . . ending a threatening situation.”[173]  Here we are not concerned with the focus of the participants; we are concerned only with the declarant.  The safety of a participant is not affected by an emergency to someone else, therefore, the participant’s motivation for fabrication is not reduced, the statement is not reliable, and thus the participant should be subjected to cross-examination.  It is only when the declarant’s safety is at risk that the declarant is motivated to be truthful. 

 

By requiring that the declarant believe he or she is facing an emergency, the statement is more reliable, because the failure to provide truthful information directly affects the declarant’s safety.  However, this alone is not enough.  We must be cognizant of the fact that in situations that raise the right to confrontation, the declarant is unavailable to testify and the declarant’s statement will be relayed to the jury by the person who heard the statement.

 

2.  A Reasonable Person in the Declarant’s Position Would have made the same, or Similar, Statements to the Particular Hearer in Order to meet the Ongoing Emergency

 

The second element functions in two ways.  First, it expands the scope of the Confrontation Clause to include all hearers instead of just law enforcement.  This eliminates the question of whether a particular person is acting as an agent of law enforcement.[174]  The particular hearer is important because if the statement is nontestimonial, the hearer’s credibility is all the jury will have available in determining whether the declarant was speaking the truth.[175]  This test includes more than just law enforcement because the Confrontation Clause is not only concerned with law enforcement lying about out of court statements; it is also concerned with whether the declarant was lying at the time the statement was made.[176]  This problem was evident in Raleigh where it was undisputed that Cobham wrote the confession.[177]  The question was whether Cobham was telling the truth at the time he made the statement, not whether the clerk correctly read the statement in court.[178]

 

In many cases, there is little value in cross-examining the hearer because all they can say is whether or not they believed the statement to be true.[179]  Robertson provides a good example of why the Confrontation Clause should apply to all hearers, and not just law enforcement.  In that case, the victim identified the shooter to both his sister and the investigating.[180]  For the defendant, cross-examination of the sister would be no more beneficial than cross-examination of the detective because neither would provide the jury with the opportunity to determine whether the victim told the truth nor whether the victim accurately perceived, remembered, or reported the events.[181]  By including all hearers in the confrontation analysis, the declarant is put on the stand in more situations so that it is the declarant that gives life to the statement, and the jury is given the opportunity to “look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”[182]

 

The second function of this element is to limit the scope of statements that can be admissible based on the person that heard, and will testify to, the statements.  We must first identify the particular hearer, the person who is going to testify to the out of court statements, and then determine whether a reasonable person in the particular emergency situation would make the statements to that hearer in order to get assistance with the emergency.  This limits admissible statements to those seeking help and excludes those that are solely accusatory or aimed at aiding criminal investigations.[183]  For example, in Davis it was reasonable for McCottry to call the local Washington police for help against Davis because an officer could respond in a reasonable time and effectively end the assault.[184]  It would not have been reasonable to call the Florida police for help against Davis because the Florida police are too far away to stop the assault.

 

In looking at the particular statements, it is sufficient that the hearer have some ability to make use of the statements to help with the current emergency.  This assures that only statements made during the ongoing emergency are admitted.[185]  In Davis, it was helpful for McCottry to call the police and describe her attacker because it would help the police identify and neutralize the attacker.[186]  However, after Davis had left, that same information would not be helpful because the attack, the emergency, had ended.[187]  Even if McCottry was grievously injured in the attack, statements describing her attacker would not be helpful to resolving the lingering medical emergency. 

 

One possible exception to this would be if the victim was poisoned with an unknown toxin.  In that situation, there is still an ongoing medical emergency and it might be helpful to know the identity of the poisoner in order to determine the toxin used.  However, once the toxin is known, statements identifying the poisoner would not reasonably be helpful in treating the medical emergency, and thus they would be testimonial and inadmissible. 

 

This element removes the question of whether the hearer is an agent of law enforcement and makes the confrontation clause applicable regardless of the hearer’s connection to law enforcement.  At the same time, this element limits the scope of statements that will be admissible.  Ultimately, this ensures that eyewitness statements admitted without confrontation are only those relevant and useful to resolving the emergency.

 

3.  Where Controverted, the Prosecution must Show, by Clear and Convincing Evidence, that At Least One Purpose of the Declarant’s Statement was to Seek Assistance with the Ongoing Emergency

 

The third element further limits the category of nontestimonial statements by prohibiting eyewitness statements made solely for use in apprehending or convicting a defendant.  Where a defendant claims the purpose of the statement was to apprehend or convict the defendant, the prosecution must show at least one purpose of the statement was to meet the needs of the ongoing emergency.[188]    

 

Under the FPP test, the prosecution faces a higher burden of proof than it otherwise would for preliminary matters.[189]  It is important for the prosecution’s burden to be higher because statements by eyewitnesses to a crime are among the most damning evidence against a defendant.[190]  If that witness is not going to be subject to the most reliable means of ascertaining the truth, cross-examination, a different procedural hurdle is required to ensure the reliability of the witness’s statements.[191]  Here the procedural means for ensuring reliability is the increased burden of proof for showing a nontestimonial purpose. 

 

However, the prosecution’s burden is limited in that they need only show that one of the purposes for the declarant making the statement was to seek assistance with the ongoing emergency.  It is not necessary to exclude all other purposes for the declarant making the statement; to do so would very likely be impossible.[192]  Implicit here is the defendant’s argument that the questioner coerced the declarant’s purpose,[193] or the declarant made the statement with an eye toward prosecution.[194]  If coerced, the declarant’s purpose is overridden with the purpose of the coercer.  If the statement is made with an eye toward prosecution, then clearly the declarant’s purpose was testimonial because the declarant’s purpose was to “establish or prove past events potentially relevant to later criminal prosecution,” and not to get assistance with an emergency.[195]

Navarro-Montes provides an example of a coercive situation.  There a jailhouse informant specifically procured the statements of the co-defendant in order to convict the defendant.[196]  This bears a striking resemblance to Raleigh where the alleged co-conspirator was also in custody and out of court statements by the alleged co-conspirator were used in lieu of live testimony.[197]  The trial of Sir Walter Raleigh is a clear example of what is unacceptable under the Confrontation Clause,[198] and it makes no sense to label the modern day equivalent nontestimonial.  

 

This test ensures that the declarant was motivated to tell the truth to end an ongoing emergency.  That a reasonable person would have made the statement to the hearer in order to seek assistance with the emergency.  And finally, that prosecution show by clear and convincing evidence that the at least one purpose of the declarant was to actually seek that assistance with the emergency.

 

B.  Historical Application of the FPP Test

 

            Applying the FPP test to Crawford, Davis, and Bryant yields more consistent results. 

 

1.  Crawford Revisited and affirmed

 

Under the FPP test, Sylvia’s statements are still clearly testimonial.  In Crawford, it is not clear whether Sylvia believed she was facing an emergency.  Most likely, Sylvia did not believe she was faced with an emergency because it was only Crawford and Lee who were fighting.[199]  Sylvia was merely an observer to the emergency.  Additionally, the emergency ended long before Sylvia made her statements because she was recounting past events, the fight, while in police custody.[200]  Thus, there is no possibility that a reasonable person would have made those statements to meet the needs of an ongoing emergency.  Finally, the statements were made with an eye toward prosecution because Sylvia was facing criminal charges at the time the statements were made.[201]  Therefore, under the new test Sylvia’s statements would remain testimonial.

 

2.  Davis and Hammon Revisited and affirmed

 

 

The outcomes in Davis and Hammon also remain the same under the FPP test.  In Davis, McCottry clearly believed there was an emergency affecting her because she was calling for help while under attack.[202]  A reasonable person would have made the statements to the 911 operator to meet the needs of the emergency because a reasonable person would turn to the local police for assistance when under attack.[203]  The statements describing the weapon used and identifying the assailant would help distinguish the aggressor from the victim, allowing the police to restrain the correct person upon arriving.[204]  If controverted, it would be easy for the prosecution to show at least one nontestimonial purpose for McCottry making the statements because she was under attack and all indications are that she was seeking to have the attack end.[205]  Therefore, McCottry’s statements would remain nontestimonial under the FPP test.

 

Amy’s statements in Hammon would also remain testimonial under this test.  Amy probably believed there was an emergency affecting her at some point in time because she was attacked.  However, when the police arrived, Amy stated, “nothing was the matter,” indicating she no longer believed there was an emergency affecting her.[206]  While a reasonable person would seek help from the police when under attack, Amy’s statements to the police were not of any use in meeting an ongoing emergency because the assault had already ended.[207]  If controverted, the prosecution may have been able to show that Amy had a purpose of seeking help with an ongoing pattern of domestic violence.  However, by the time the police arrived and separated Amy and Hershel, that pattern would not be an ongoing emergency.  Therefore, Amy’s statements would remain testimonial under this test.

 

3.  Bryant Revisited and Reversed

 

 

Applying the FPP test to the facts in Bryant, however, would produce a different result.  Under this test, Covington’s statements in Bryant would have been testimonial and therefore inadmissible against Bryant–Bryant’s right to confrontation would be preserved.  Covington may have believed there was an emergency affecting him because he fled Bryant’s house mortally wounded.[208]  However, by the time the police arrived, the attack was long over; making it unlikely Covington believed Bryant was still a threat.[209]  Additionally, Covington only believed the ongoing emergency was his wound, and not a threat from Bryant, because Covington repeatedly asked about medical help and never asked about his safety from Bryant.[210]  A reasonable person would not have made statements about Bryant to meet the medical emergency facing Covington because nothing about Bryant or the location of the shooting would help treat a bullet wound.  Further, the prosecution cannot prove a nontestimonial purpose.  Covington knew the statements were for a criminal investigation because he kept interrupting to ask when his medical emergency would be addressed.[211]  Therefore, the FPP test would reverse the decision in Bryant and find Covington’s statements to be testimonial. 

 

4.  Flores, Glenn, and Bennington Revisited and Harmonized

 

 

Under the FPP test, the statements in Flores would have been testimonial, and the statements in Glenn and Bennington would remain testimonial.  In Flores, the victim certainly believed there was an emergency affecting her because she attempted to call the police during the attack.[212]  However, by the time the victim actually called the police and made the statements, the aggressor had already left.[213]  Thus, a reasonable person could not have made any statements about the aggressor to meet the needs of an ongoing emergency because the ongoing emergency was medical in nature.  Therefore, the victim’s statements in Flores would be testimonial under this test.  For the same reasons, the statements in Glenn and Bennington would remain testimonial.[214]

 

5.  Miller and Bennington Revisited and Harmonized

 

 

Under this test, the statements in Miller would be testimonial, and the statements in Bennington would remain testimonial.  The statements in Miller and Bennington would be testimonial for the same reasons given for Flores, Glenn, and Bennington.  There was no ongoing emergency at the time the statements were made because the victims had left the scene of the sexual attack and were being treated by the SANE.[215]

The statements in Miller and Bennington were solicited by the SANE to collect evidence.[216]  This makes it likely that the adult victim in Bennington knew and understood the statements were intended for prosecution, and thus the statements would be testimonial.[217]  However, the declarant in Miller was a four-year-old child.[218]  At that age, the child probably did not understand that the SANE was collecting evidence for later prosecution.[219]  A reasonable person in the child’s position might have told a nurse about the sexual assault, but in this situation the assault was already over, making it impossible for the child victim to have been seeking help with an ongoing emergency.  The fact that there was no ongoing emergency at the time the statements were made is dispositive.  Under the FPP test, the statements in Miller would be testimonial, and the statements in Bennington would remain testimonial.      

 

It is possible that Miller could fail to show a nontestimonial purpose if the SANE coerced the child victim.  Because the record in Miller does not indicate what the SANE said in the conversation with the child victim, it is impossible to determine if the SANE coerced the victim’s statements.[220]  However, with more information, it could be argued that the SANE implanted false suggestions in the child victim’s mind with the type of questions asked, causing the child’s purpose for making the statement to be overridden.[221]

 

The outcomes of the FPP test are in harmony with Crawford, Davis, and Hammon.  It is only Bryant, and some of the cases attempting to follow Bryant, that we would reach different outcomes under this test.  By abandoning the ambiguity inherent in the totality of the circumstances test and instead adopting the bright-line FPP test, factually similar situations will reach consistent outcomes.  A byproduct of these more consistent outcomes is judicial economy. 

 

C.  Judicial Economy

 

 

Judicial economy is furthered under this bright-line test because there is less ambiguity and thus less time will be spent determining the admissibility of out of court statements.[222]  Under the FPP test, both prosecutors and defense attorneys will generally be able to determine whether particular statements are testimonial or nontestimonial.[223]  This facilitates the plea bargaining process because both prosecutors and defense attorneys will know what evidence is admissible, allowing them to engage in better plea negotiations before engaging in lengthy motion practice and trials. 

 

This test also furthers judicial economy by changing the way prosecutors and defense attorneys act.  Defense attorneys will bring fewer motions in limine and raise fewer objections at trial because they will have a better understanding of which statements are nontestimonial and thus admissible.[224]  This frees up trial court dockets by alleviating the need for judges to decide heavily fact driven inquiries.  Additionally, prosecutors will know when statements are nontestimonial and thus would not bring motions to continue the trial until the unneeded witness is available.  This also frees up trial court dockets, and supports the defendant’s right to speedy trial. 

 

Finally, in situations where a judicial ruling is required to determine whether a statement is testimonial or nontestimonial, it will be easier for the court to make that determination.  To determine if the declarant believed there was an ongoing emergency affecting the declarant the court would only need to know what was happening at the time, and how the declarant reacted.[225]  To determine if the particular statements were made to the particular hearer in order to meet the needs of the emergency, the court would need only to look at the statements and to whom they were made.  The court can then determine whether that person could have reasonably helped in the emergency with the information in the statements.

 

The third element of the test would require more time and effort.  If the defendant does not allege the purpose of the statements were to capture or convict the defendant, then there is no analysis needed.  Where controverted, the prosecution would have to show a nontestimonial purpose by clear and convincing evidence.  The information needed to prove one nontestimonial purpose will be contained within the “all relevant information” that must be consulted under the totality of the circumstances test in Bryant. [226]  The difference, however, between Bryant and application of the FPP test is that here the prosecution only needs to prove one nontestimonial purpose and not the primary purpose of the statement.  Therefore, under the FPP test, even where the prosecution is required to prove all three elements, the analysis will be less burdensome on the court and practitioners than the totality of the circumstance test in Bryant

 

D.  Defendant Rights Trump Victim Rights

 

The defendant’s rights at trial must trump the rights of victims.  By the time a trial occurs, the defendant is generally not in a position to cause further harm to the victim.[227]  On the other hand, the defendant’s liberty is at stake at trial.  The Confrontation Clause protects the criminal defendant from abuse in the judicial system.[228]  The text of the Sixth Amendment does not suggest any exception to the right of confrontation.[229]  Therefore, imposing any exception to the defendant’s right to confront witnesses is a significant concession.  The proposed FPP test is a narrow exception that preserves the right to confrontation while still admitting some statements without confrontation in the interest of justice.[230]

 

Under the FPP test, it is inevitable that some criminals will go free when the government is unable to procure eyewitnesses at trial.  No test perfectly effectuates justice.[231]  When drawing a line between fairness to the defendant and fairness to the victim, the line must favor the defendant because the defendant’s liberty is at stake, while the victim has already suffered the loss.[232]

 

The FPP test will require more children to testify in criminal cases, and thus force those children to face their abusers, potentially causing more trauma to child victims.[233]  By restricting the scope of an emergency to that actually affecting the declarant, courts will lose the ability to define the emergency as encompassing the entire duration of an abusive relationship.[234]  This results in more children having to testify against their abusers.  Placing children in the traumatic position of having to testify against their abuser is a necessary evil.  It is even more important for defendants to be able to cross-examine child witnesses because it is easier to consciously, or unconsciously, implant false suggestions into the minds of children.[235]  The right to confrontation represents one of “those hard choices [that] were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.”[236]  The criminal defendant’s constitutional right to confrontation simply should not be twisted to make life easier for victims.

 

IV.  CONCLUSION

 

Bryant must be abandoned in order to preserve the right to confrontation.  If the right is to have any value, we must be able to look at the situation and consistently determine when cross-examination is required and when the exception applies.  By making the confrontation analysis less ambiguous, prosecutors and defense attorneys will be able to determine whether a particular statement is testimonial or nontestimonial without having to seek a judicial decision. 

 

The FPP test expands the scope of declarants subject to cross-examination by including statements made to non-law enforcement.  The test ensures that defendants’ retain the right to confront eyewitnesses against them by restricting the circumstances in which nontestimonial statements occur.  Further, this test requires higher scrutiny when the defendant has reason to suspect the statement was coerced or made for prosecutorial purposes.  Most importantly, this test encourages trial by live witnesses, so that the jury can judge their demeanor and determine what evidence is credible, rather than juries relying on evidence the court has determined to be credible.  The alternative, “I marvel, Sir Walter [Raleigh], that you being of such experience and wit, should stand on this point; for so many horse-stealers may escape, if they may not be condemned without witnesses,” is simply not acceptable.[237]


[1] Acts 25:16 (New American Standard).

[2] Pointer v. Texas, 380 U.S. 400, 403 (1965) (“We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.”).

[3] U.S. Const. amend. VI.

[4] Crawford v. Washington, 541 U.S. 36, 61 (2004) (“To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.  It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”).

[5] See generally id.

[6] E. g., State v. Dotson, No. W2011-00815-SC-DDT-DD, 2014 WL 4825169, at *58 (Tenn. Sept. 30, 2014) (“The State points out that the law was unsettled at the time of the defendant's trial and remains unsettled as to the question of whether autopsy reports are or are not testimonial. We agree.”).

[7] White v. Illinois, 502 U.S. 346, 362 (1992); Daniel H. Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L.381, 389 (1959).

[8] Raleigh’s Case, 2 How. St. Tr. 10, 19, 29 (1603). 

[9] At trial, Raleigh demanded to cross-examine Lord Cobham at least eleven times and was denied each time.  Id. at 11-24; Id. at 29-30 (Cobham repudiated his confession in a letter to Raleigh).  

[10] Id. at 23.

[11]  Id. at 18; Pollitt, supra note 7, at 389.

[12] U.S. Const. art. VI, cl. 2; U.S. Const. art. V; United States v. Dennis, 183 F.2d 201, 207 (2nd Cir. 1950) (“Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in [the Constitution].”); See Williams v. Illinois, 132 S.Ct. 2221, 2249 (2012) (Breyer, J., concurring) (explaining that the case against Sir Walter Raleigh was an example of the evil the Confrontation Clause was intended to prevent).

[13] See Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004).

[14] Crawford v. Washington, 541 U.S. 36, 61 (2004) (creating a new test for whether the Confrontation Clause applies).

[15] Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011).

[16]  Mark S. Coven & James F. Comerford, What’s Going On?  The Right to Confrontation, 45 Suffolk U. L. Rev. 269 (2012) (indicating that the only possible virtue in Bryant is that ambiguity allows judges to determine the fairest result).

[17] Daniel D. Blinka, More “Bullcoming”? The Court Courts Confusion in Confrontation, Marq. U. L. Sch. Fac. Blog (Mar. 3, 2011), http://law.marquette.edu/facultyblog/2011/03/03/more-%E2%80%9Cbullcoming... (“’train wreck’ best captures the real cost of confusion. … For the defense lawyers and prosecutors who must eat this mush . . . every day, you have my best wishes and these words of solace.”); contra Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 (2009) (requiring confrontation of substance analysts when their findings will be used at trial).

[18] See Jason Widdison, Michigan v. Bryant: The Ghost of Roberts and the Return of Reliability, 47 Gonz. L. Rev. 219, 240 (2011-2012) (arguing that the complicated and unpredictable nature of the test in Bryant removes one of the protections in the criminal justice system). 

[19] 541 U.S. at 61 (“[T]he [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.”).

[20] Davis v. Washington, 547 U.S. 813, 823 (2006).

[21] This Article focuses only on eyewitness statements.  However, if the proposed test were applied to laboratory analysis statements, the result would be the same as Melendez-Diaz v. MassachusettsSee Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) (testimonial).

[22] U.S. Const. amend. VI.  See Michigan v. Bryant, 131 S.Ct. 1143, 1156 (2011) (clarifying Davis); Crawford, 541 U.S. at 60-68 (overruling Roberts); Pollitt, supra note 7at 388-89.  See generally Davis, 547 U.S. at 822 (clarifying Crawford); Ohio v. Roberts, 448 U.S. 56 (1980), overruled by Crawford, 541 U.S. 36 (admitting hearsay if it complies with a firmly rooted exceptions or adequate indicia of reliability); Pointer v. Texas, 380 U.S. 400, 401 (1965) (holding the right to confrontation applicable to the states under the Fourteenth Amendment); Mattox v. United States, 156 U.S. 237, 244 (1895) (admitting prior testimony that was subject to cross-examination).

[23] Roberts, 448 U.S. 56 (1980), overruled by Crawford, 541 U.S. 36 (“[I]f [ ] applied [literally], the [Confrontation] Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.”).

[24] 56 F.R.D. 183, 303 (explaining the policy behind the exceptions in Fed. R. Evid. 803).

[25] Roberts, 448 U.S. at 58 (1980), overruled by Crawford, 541 U.S. 36 (“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception … [or has] particularized guarantees of trustworthiness.”); Davis, 547 U.S. at 834 (Thomas, J., dissenting) (“[W]e abandoned the general reliability inquiry we had long employed to judge the admissibility of hearsay evidence under the Confrontation Clause.”).

[26] 56 F.R.D. 183, 304 (explaining the policy for admitting present sense impressions and excited utterances as exceptions to the rule against hearsay).

[27] Crawford v. Washington, 541 U.S. 36, 61 (2004) (“[T]he [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.”); Id. at 61 (explaining the particular manner required is cross-examination). See, e.g., Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”).

[28] 448 U.S. at 67.

[29] Id. at 62-63 (“If one were to read [the Confrontation Clause] literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial.”).

[30] Id. at 66 (internal quotation marks omitted).

[31] See id.at 70-71.

[32] See Crawford, 541 U.S. at 60-68 (citation omitted) (“Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales.  Roberts conditions the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’  This test departs from the historical principles identified above in two respects.”); Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011) (Crawford reversed Roberts); Davis v. Washington, 547 U.S. 813, 825 n.4 (2006) (Crawford overruled Roberts).

[33] Crawford, 541 U.S. at 60.

[34] Id.

[35] Id. at 39-40, 65 (citations omitted) (internal quotation marks omitted) (“A. Okay, he lifted his hand over his head maybe to strike Michael's hand down or something and then he put his hands in his . . . put his right hand in his right pocket . . . took a step back . . . Michael proceeded to stab him . . . then his hands were like . . . how do you explain this . . . open arms . . . with his hands open and he fell down . . . and we ran. . . . Q. Did you see anything in his hands at that point?  A. (pausing) um um (no).”).

[36] Id. at 40-41 (noting Sylvia’s statement corroborated Crawford’s story, she was an eyewitness, was describing recent events, “was being questioned by a neutral law enforcement officer,” and wasn’t shifting blame).

[37] Id. at 50-54.

[38] Id. at 61; Davis v. Washington, 547 U.S. 813, 822, 834 (2006); Marc McAllister, Evading Confrontation: From One Amorphous Standard to Another, 35 Seattle Univ. L. R. 473, 473 (2012).

[39] Crawford, 541 U.S. at 68 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”).

[40] Id.

[41] Id.

[42] Id. (preserving the common law requirement that hearsay evidence is admissible only when both the witness is unavailable and there has been a prior opportunity for cross-examination).

[43] Id. at 61.

[44] See id. at 52-53, 68 (acknowledging that statements taken by police during interrogations are testimonial even under the narrowest definition because they bear a substantial resemblance to those taken by magistrates under the Marian statutes).

[45] Id. at 68.

[46] 547 U.S. 813, 822 (2006).

[47] State v. Davis, 154 Wash. 2d 291 (2005), cert. granted, Davis v. Washington, 546 U.S. 975 (Oct. 31, 2005) (No. 05-5224) (“Petition for writ of certiorari to the Supreme Court of Washington granted.  This case is to be argued in tandem with No. 05-5705, Hammon v. Indiana.”); Hammon v. Indiana, 829 N.E.2d 444 (Ind. 2005), cert. granted, Davis v. Washington, 546 U.S. 976 (Oct. 31, 2005) (No. 05-5705) (“Petition for writ of certiorari to the Supreme Court of Indiana granted.  This case is to be argued in tandem with No. 05-5224, Davis v. Washington.”).

[48] Davis v. Washington, 547 U.S. 813, 817 (2006).  

[49] Id. at 817-18 (responding to the questions: “What’s going on?”  “Are you in a house or apartment?”  “Are there any weapons?”  “Listen to me carefully.  Do you know his last name?”).

[50] Id. at 818.

[51] Id. at 819.

[52] Id. at 829. 

[53] Id.

[54] Id.

[55] Id. (explaining the officer saw glass on the ground in front of a gas heating unit that had a flame coming out of the broken front).

[56] See id. at 819-20. 

[57] Id. (internal quotation marks omitted) (recounting Hershel breaking the furnace, shoving Amy to the ground into broken glass, hitting Amy, breaking lamps and a phone, and attacking Amy’s daughter).

[58] Id.

[59] E.g., White v. Illinois, 502 U.S. 346, 355 n.8 (1992) (explaining that present sense impressions have sufficient indicia of reliability to meet the requirements of Roberts); State v. Palomo, 113 Wash. 2d 789, 797 (1989) (en banc) (holding that excited utterances have sufficient indicia of reliability to meet the requirements of Roberts).

[60] Davis, 547 U.S. at 822.

[61] Id. at 827.

[62] Id. 827.

[63] Id. at 829; Id. at 832 (“Officers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.”).

[64] Id. at 828 (indicating that only the testimonial nature of the initial statements identifying Davis were before the court); Id. (internal quotation marks omitted) (citing another source) (“This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot . . . evolve into testimonial statements, once that purpose has been achieved.”).  This dicta is probably the clearest demarcation between testimonial and nontestimonial that the Court has given because the court delineated the exact moment at which the transformation occurred.

[65] See id. at 828-29.

[66] Id. at 830 (indicating that the officer wasn’t asking about an ongoing emergency).

[67] Id.

[68] Id.

[69] See id. at 834.

[70] See 562 U.S. 344, ___,131 S.Ct. 1143, 1150-51, 1156 (2011).

[71] Id. at ___, 131 S.Ct. at 1150 (explaining that Covington could identify Bryant through the door because the two had been conversing before the shooting).

[72] Id. at ___, 131 S.Ct. at 1150, 1170.

[73] Id.

[74] Id. at ___, 131 S.Ct. at 1150 (2009).

[75] Id.

[76] Id.

[77] Id. at ___, 131 S.Ct. at 1151.

[78] Id. at ___, 131 S.Ct. at 1172 (Scalia, J., dissenting) (citing another source).

[79] Id. at ___, 131 S.Ct. at 1156.

[80] See id. at ___, 131 S.Ct. at 1157 (“The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “proving past events potentially relevant to later criminal prosecution.”  (citing Davis v. Washington, 547 U.S. 813, 822 (2006)); Id. (“This logic is not unlike that justifying the excited utterance exception in hearsay law.  [Such statements] are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood.”).

[81] Id. at ___, 131 S.Ct. at 1158 (“An emergency posed by an unknown shooter who remains at large does not automatically abate just because the police can provide security to his first victim.”  (citing Brief for the United States as Amicus Curiae Supporting Petitioner, Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, (2011) (No. 09-150), 2010 WL 1848212, at *20)); Id. at ___, 131 S.Ct. at 1159 (indicating that the emergency may dissipate if “a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute” or “if a perpetrator is disarmed, surrenders, is apprehended, or . . . flees with little prospect of posing a threat to the public.”).

[82] Id. at ___, 131 S.Ct. at 1158 (“[T]he duration and scope of an emergency may depend in part on the type of weapon employed.”).

[83] Id. at ___, 131 S.Ct. at 1159 (“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.”).

[84] Id. at ___, 131 S.Ct. at 1160 (indicating that while increased formality necessarily suggests the statement is testimonial; “informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent.”).

[85] Id. at ___, 131 S.Ct. at 1160-61 (“In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers.  To give an extreme example, if the police say to a victim, ‘Tell us who did this to you so that we can arrest and prosecute them,’ the victim's response that ‘Rick did it,’ appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers.”).

[86] Id. at ___, 131 S.Ct. at 1155, 1162 (“In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”).  The Bryant Court provides no explanation for what appears to be the incorporation of the firmly rooted hearsay exceptions in Roberts into the totality of the circumstances test.  Compare id. at ___, 131 S.Ct. at 1155 (using standard rules of hearsay to determine the primary purpose), with Ohio v. Roberts, 448 U.S. 56, 66 (“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”).

[87] Bryant, 562 U.S. 344, ___, 131 S.Ct. 1143, 1176 (Scalia, J., dissenting) (naming the new test the “totality of the circumstances” test).

[88] Id. at ___, 131 S.Ct. at 1163 (majority opinion).

[89] Id.

[90] Id. (“[W]hat happened, who had shot him, and where the shooting had occurred.”).

[91] Id. at ___, 131 S.Ct. at 1163-64.

[92] Id. at ___, 131 S.Ct. at 1164 (citation omitted) (comparing Hammon to Bryant: “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.  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.”); Id. (indicating neither Covington nor the police knew the location of the shooter and Bryant was not at home when the police searched his house).

[93] Id.

[94] Id. at ___, 131 S.Ct. at 1166 (noting that the officers arrived at different times and each officer asked Covington similar questions in assessing the emergency).

[95] Id. at ___, 131 S.Ct. at 1165 (indicating that Covington was very concerned with getting medical help).

[96] Id. at ___, 131 S.Ct. at 1167.

[97] United States v. Navarro-Montes, 2011 WL 902098, at *1 (C.D. Cal. 2011).

[98] Id. at *2.

[99] Flores v. Stainer, 2012 WL 3143874, at *19 (E.D. Cal. 2012).

[100] Id. at *2.

[101] Id. at *22-23.

[102] 725 S.E.2d 58, 62 (N.C. Ct. App. 2012).

[103] Id.

[104] Id. at 62-63.

[105] Id. at 64.

[106] Robertson v. Warden, S. Ohio Corr. Facility, 2011 WL 5999032, at *12 (S.D. Ohio 2011).

[107] Id. at *13.

[108] Id. at *21.

[109] Id. at *22.  It is unclear why the court focused on the prosecution’s purpose in offering the statements at trial.

[110] 173 Wash. 2d 97, 109 (2011) (en banc).

[111] See id. at 109 n.10.

[112] Id. at 110.

[113] Id.   The court rejected its own declarant-centric precedent in adopting the Bryant approach.  Id. at 107-9.  Under the prior, declarant-centric, approach, the four-year-old child’s statements would have been nontestimonial because it “defies logic” to think that the child would have expected the statements to be used for prosecutorial purposes.  Id. at 108. 

[114] 293 Kan. 535, 539 (2011).

[115] Id. at 578.  In State v. Bennington, decided the same day, the court notes that the KBI sexual assault evidence collection kit includes a form “which listed questions asking about the nature of the assault, the specific time of the assault, the name of the perpetrator, and a description of the perpetrator.”  293 Kan. 503, 519 (2011).

[116] Miller, 293 Kan. at 582.

[117] 293 Kan. 503, 518 (2011) (explaining that the SANE asked for narrative statements of what happened while the officer asked specific questions).

[118] Id. at 523-24 (explaining that the purpose of the Kansas Bureau of Investigation sexual assault evidence collection kit is to gather evidence of a crime).

[119] Id. at 520-21.

[120] Id. at 524.

[121] See Eli J. Richardson, Taking Issue with Preclusion: Reinventing Collateral Estoppel, 65 Miss. L.J. 41, 84 (1995).

[122] Michigan v. Bryant, 566 U.S. 344, ___, 131 S.Ct. 1143, 1156 (2011).

[123] Id. at ___, 131 S.Ct. at 1168 (Scalia, J., dissent) (“Instead of clarifying the law, the Court makes itself the obfuscator of last resort.”); Widdison, supra note18, at 234 (“Unpredictability threatens the equal and uniform protection of the confrontation right . . . .”).

[124] Davis v. Washington, 547 U.S. 813, 830 (2006).

[125] Id.

[126] Bryant, 562 U.S. at ___, 131 S.Ct. at 1150, 1170.

[127] Id. at ___, 131 S.Ct. at 1171-72 (Scalia, J., dissenting) (noting that the officers did not draw their weapons, nor did they immediately search the gas station for potential shooters).

[128] Id. at ___, 131 S.Ct. at 1172 (“[He] interrogated Covington because he ‘had a man here that he believed was dying so he was gonna find out who did this, period.’”  (citing Joint Appendix at 174, Michigan v. Bryant, 131 S.Ct. 1143 (2011) (No. 09-150), 2009 WL 6411478, at *112)).

[129] Davis, 547 U.S. at 830; Bryant, 562 U.S. at ___, 131 S.Ct. at 1167.

[130] Bryant, 562 U.S. at ___,131 S.Ct. at 1170-71 (Scalia, J., dissenting) (explaining that Covington described past events while McCottry described events as they were happening).

[131] Davis, 547 U.S. at 829 (nontestimonial); Bryant, 562 U.S. at ___, 131 S.Ct. at 1167 (nontestimonial).

[132] Davis, 547 U.S. at 828.

[133] Bryant, 562 U.S. at ___, 131 S.Ct. at 1163-64 (2011) (Covington fled).

[134] Id. (“Bryant left his house.”); Davis, 547 U.S. at 818 (Davis ran out the door).

[135] It is not known where Bryant went, but he was presumably on the run because he was apprehended a year later in California.  Bryant, 562 U.S. at ___, 131 S.Ct. at 1165.

[136] See Davis, 547 U.S. at 828-29; Bryant, 562 U.S. at ___, 131 S.Ct. at 1167 (nontestimonial).

[137] See supra Part I.F.2-3.

[138] See supra Part I.F.2-3.

[139] See supra Part I.F.2-3.

[140] See supra Part I.F.2-3.

[141] See supra Part I.F.5-6.

[142] See supra Part I.F.5-6.

[143] See supra Part I.F.5 (child protective services employee); Part I.F.6 (SANE).

[144] See supra Part I.F.5-6.

[145] State v. Miller, 293 Kan. 535 (Oct. 28, 2011); State v. Bennington, 293 Kan. 503 (Oct. 28, 2011).

[146] See supra Part I.F.6-7.

[147] See supra Part I.F.6-7.

[148] See Miller, 293 Kan. at 551 (age four); Bennington, 293 Kan. at 505 (age seventy-seven).

[149] See State v. Beadle, 173 Wash. 2d 97, 107-09, 110 (2011) (en banc) (rejecting the declarant-centric approach and adopting the totality of the circumstances test); see supra note 113.

[150] See supra Part I.F.6-7.

[151] Michigan v. Bryant, 562 U.S. 344, ___, 131 S.Ct.1143, 1162 (2011) (“consulting all relevant information . . . .”).

[152] Blinka, supra note 17 (“[Bryant] also raises considerable confusion about what constitutes the ‘testimonial hearsay’ that is protected by the confrontation right.”).

[153] Richardson, supra note 121.

[154] See Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379, 393(1985).

[155] Bryant, 562 U.S. at ___, 131 S.Ct. at 1162 (“In determining whether a declarant's statements are testimonial, courts should look to all of the relevant circumstances.”). But see Boddie v. Connecticut, 401 U.S. 371, 394 (1971) (“The rules set out in the Constitution itself provide what is governmentally fair and what is not.  Neither due process nor equal protection permits state laws to be invalidated on any such nonconstitutional standard as a judge's personal view of fairness.”).

[156] Crawford v. Washington, 541 U.S. 36, 67-68 (2004) (“By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.  Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's-great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.”); Schlag, supra note 154, at 387.

[157] Crawford, 541 U.S. at 63 (“Whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them.”); Schlag, supra note 154, at 389.

[158] Schlag, supra note 154, at 385.

[159] Id. at 402.

[160] See id. at 392-93.

[161] See id. at 396.

[162] U.S. Const. amend. VI.

[163] See Black’s Law Dictionary 1436 (9th ed. 2009) (“[R]ight, . . . .  2.  Something that is due to a person by just claim, legal guarantee, or moral principle . . . .”  “[A]bsolute right.  1.  A right that belongs to every human being, such as the right of personal liberty; a natural right.”).

[164] See id. at 1437 (“A right entitling a person to have another refrain from doing an act that might harm the person entitled,”); Cf. Id. (“[P]ositive right.  A right entitling a person to have another do some act for the benefit of the person entitled.”).

[165] Black’s Law Dictionary 1316 (9th e3d. 2009) (“Privilege. . . . A privilege grants someone the legal freedom to do or not to do a given act.  It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.”); Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011) (Scalia, J., dissent) (“For all I know, Bryant has received his just deserts.  But he surely has not received them pursuant to the procedures that our Constitution requires.  And what has been taken away from him has been taken away from us all.”); Crawford v. Washington, 541 U.S. 36, 67-68 (2004) (“By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.”); Katie Polonsky, Note, A Defense Attorney’s Guide to Confrontation after Michigan v. Bryant, 36 Vt. L. Rev. 433 (2011) (concluding that the Bryant court has eroded the rights of all citizens).

[166] State v. Miller, 293 Kan. 535, 577 (2011) (indicating the difficulty in balancing the circumstances to determine whether a statement is testimonial); See Schlag, supra note 154, at 388 (indicating that where the outcome is unclear, those who have the most to lose will seek to challenge the communication before a judge). 

[167] U.S. Const. amend. VI (right to speedy trial).

[168] Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n. 3 (1989) (“Bail, by its very nature, is implicated only when there is a direct government restraint on personal liberty . . . .”).

[169] Michigan v. Bryant, 562 U.S. 344, at ___, 131 S.Ct. 1143, 1169 (2010) (Scalia, J., dissenting) (“A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause.”).

[170] Id. at ___, 131 S.Ct. at 1174 (indicating that the majority has adopted the excited utterance hearsay exception as a means of determining whether confrontation is required); Id. at ___, 131 S.Ct. at 1157 (majority opinion) (noting that there is no need for cross-examination when a person is unable to form a falsehood because they are under the stress of excitement relating to a startling even or condition).

[171] See contra United States v. Solorio, 669 F.3d 943 (9th Cir. 2012) (DEA undercover buy bust operation); Petit v. State, 92 So. 3d 906, 916-17 (Fla. Dist. Ct. App. 2012) (declarant chasing the defendant). 

[172] This evolution is the reverse of the situation the court described in Davis where McCotty’s statements would evolve from nontestimonial to testimonial.  Davis v. Washington, 547 U.S. 813, 828-29 (2006).

[173] Bryant, 562 U.S. at ___, 131 S.Ct. at 1157 (emphasis added) (internal quotation marks omitted).

[174] Id. at ___, 131 S.Ct. at 1155 n.3 (citations omitted) (internal quotation marks omitted) (“Davis explicitly reserved the question of whether and when statements made to someone other than law enforcement personnel are ‘testimonial.  We have no need to decide that question in this case either because Covington's statements were made to police officers.”); Davis, 547 U.S. at 823 n.2 (“[O]ur holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are ’testimonial.’”); United States v. Stevens, 778 F.Supp.2d 683,691 (D. La., W.D. 2011) (“[I]n both the Davis and Bryant cases, the Supreme Court explicitly reserved the question of whether and when statements made to someone other than law enforcement personnel are testimonial.”); United States v. Watson, No. 05-80025, 2011 U.S. Dist. WL 1884624, at *2 (“Bryant did not clarify when statements made to persons other than law enforcement are testimonial.”); State v. Miller, 293 Kan. 535, 578 (2011) (holding the sexual assault nurse was acting as an agent of law enforcement); McCarley v. Hall, 2012 WL 1970243, at *1, *5 (indicating a therapist was used to “extract information” from a child); State v. Beadle, 173 Wash. 2d 97, 109 (2011) (en banc) (noting the CPS employee was acting to assist the police department); State v. Snowed, 385 Md. 64, 86 (2005) (noting the sexual abuse investigator “became, for Confrontation Clause analysis, an agent of the police department.”).

[175] Coy v. Iowa, 487 U.S. 1012, 1026 (1988) (noting the primary object of the Confrontation Clause was to compel the witness to stand before the jury so the jury may decide whether the witness is worthy of belief).

[176] Bryant, 562 U.S. at ___, 131 S.Ct. at 1173 (Scalia, J., dissenting) (noting that in King v. Bracer, 1 Leach 199, 200 (K.B. 1779), statements by a child to her mother were inadmissible unless the daughter testified); Crawford v. Washington, 541 U.S. 36, 64 (2004) (“[T]he problem was that the judges refused to allow Raleigh to confront Cobham in court, where he could cross-examine him and try to expose his accusation as a lie.”).

[177] Raleigh’s Case, 2 How. St. Tr. 1, 29 (1603) (“Raleigh.  Now I wonder how many souls this man hath!  He dams one in this Letter, and another in that.”). 

[178] Id. at 16, 29 (emphasis removed) (“Raleigh.  I beseech you, my lords, let Cobham be sent for, charge him on his soul, on his allegiance to the king; if he affirm it, I am guilty.”); Raleigh, 2 How. St. Tr. at 10 (indicating the clerk read Lord Cobham’s examination).

[179] See Crawford, 541 U.S. at 51 (“Raleigh was . . . perfectly free to confront those who read Cobham's confession in court.”).

[180] See supra Part I.F.4; Robertson v. Warden, S. Ohio Corr. Facility, 2011 WL 5999032, at *10, *15 (S.D. Ohio, Aug. 30, 2011) (indicating the sister and detective testified as to the identity of the shooter).

[181] Mattox v. United States, 156 U.S. 237, 242-43 (1895) (“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”).

[182] Mattox, 156 U.S. at 242-43.

[183] See Cf. Davis v. Washington, 547 U.S. 813, 828 (2006) (indicating that statements seeking help are nontestimonial).

[184] Bureau of Justice Statistics, Criminal Victimization in the United States, 2008 Statistical Tables, 116 NCJ 227669 (2010), http://www.bjs.gov/content/pub/pdf/cvus08.pdf (indicating that in 2007 police responded to simple assault cases in in less than five minutes 31.4% of the time).  

[185] McAllister, supra note 38, at 520 (arguing that all statements during the commission of the crime should be nontestimonial).

[186] See infra Part III.B.2.

[187] See Davis, 547 U.S. at 828 (describing the evolution of statements from nontestimonial to testimonial). 

[188] See Brock v. State, 37 A.3d  1030, 1040 (Md. Ct. Spec. App. 2012) (holding statements nontestimonial when the “[declarant’s] answers to Officer Admeged's questions strongly suggest a primary purpose of assisting the police to respond to the ongoing emergency by apprehending the perpetrator.”).

[189] Compare Fed R. Evid. 104(b) (“[P]roof must be introduced sufficient to support a finding that the fact does exist.”), with In re KMO, 280 P.3d 1203, ¶ 13, 1210 (Wyo. 2012) (citing another source) (“Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable.”),  and J.H. v. Brown, 331 S.W.3d 692 (Mo. Ct. App. 2011) (internal quotation marks omitted) (citing another source) (“Evidence is clear and convincing if it instantly tilts the scales in the affirmative when weighed against the evidence in opposition, such that the fact finder's mind is left with an abiding conviction that the evidence is true.”).

[190] Hon. D. Duff Mckee , Challenge to Eyewitness Identification Through Expert Testimony, 35 Am. Jur. Proof of Facts 3d § 1, § 1 (Originally published in 1996) (“[T]he average juror tends to believe such identifications, even in the face of other evidence which appears more credible.  Eyewitness testimony may be the least reliable, and yet the most compelling.”).

[191] Crawford v. Washington, 541 U.S. 36, 61 (2004) (“To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”).

[192] Michigan v. Bryant, 562 U.S. 344, ___, 131 S.Ct. 1143, 1161 (2011) (indicating that victims will likely have mixed motives in making their statement). 

[193] See Raleigh’s Case, 2 How. St. Tr. 1, 22 (1603) (“This poor man hath been close prisoner these 18 weeks; he was offered the rack to make him confess.”).

[194] Bryant, 562 U.S. at ___, 131 S.Ct. at 1161 (“[I]f the police say to a victim, ‘Tell us who did this to you so that we can arrest and prosecute them,’ the victim's response that ‘Rick did it,’ appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers.”); People v. Clay, 926 N.Y.S.2d 598, 606 (N.Y. App. Div. 2011) (emphasis removed) (internal quotation marks omitted) (“McGee's advisement ‘I don't think you're going to make it’ plainly demonstrates, his evident reason for asking ‘Who shot you’ was not to deal with an emergency, but to give Isaacs what might have been—and, in fact, turned out to be—his final opportunity to bear witness against his assailants.”).

[195] Davis v. Washington, 547 U.S. 813, 813-14 (2006).

[196] See supra Part I.F.1.

[197] Raleigh, 2 How. St. Tr. at 19, 29.

[198] Crawford v. Washington, 541 U.S. 36, 61 (2004) (indicating that the Confrontation Clause was intended to prevent trials like that of Sir Walter Raleigh).

[199] See supra Part I.C.

[200] See supra Part I.C.

[201] Crawford, 541 U.S. at 65  (“[O]ne [of the lower] court[s] relied on the fact that the witness's statement was made to police while in custody on pending charges-the theory being that this made the statement more clearly against penal interest and thus more reliable.”).

[202] See supra Part I.D.

[203] See Bureau of Justice Statistics, supra note 184.

[204] Gael B. Strack, “She Hit Me, Too” Identifying the Primary Aggressor: A Prosecutor’s Prospective, at 9, http://www.ncdsv.org/images/she_hit_me.pdf  (last visited October 15, 2012) (“Identification of the primary aggressor is not an easy task.  Today more than ever police officers and prosecutors are finding it a challenge to identify the true offender and hold that person accountable.”).

[205] Davis v. Washington, 547 U.S. 813, 831 (2006) (noting the present-tense statements showed immediacy). 

[206] See supra Part I.D.

[207] See supra Part I.D.

[208] See supra Part I.E.

[209] See supra Part I.E. (indicating the attack occurred six blocks away and twenty-five minutes in the past).

[210] See supra Part I.E.

[211] Michigan v. Bryant, 562 U.S. 344, ___, 131 S.Ct. 1143, 1171 (2011) (Scalia, J., dissenting).

[212] See supra Part I.F.2.

[213] See supra Part I.F.2.

[214] See supra Part I.F.3, 7.

[215] See supra Part III.B.4; see supra Part I.F. 6, 7.

[216] See supra Part I.F. 6, 7.

[217] See supra Part I.F.7.

[218] See supra Part I.F.6.

[219] The four-year-old child may also be too young to comprehend that an emergency existed when she was sexual assaulted. 

[220] See State v. Miller, 293 Kan. 535, 543, 549 (2011) (describing the victim’s statements to the SANE but not the questions asked by the SANE).

[221] See Ceci, infra note 235at 224-25, 270 (indicating the higher suggestibility of children); See infra Part III.D.

[222]See Schlag, supra note 154, at 400 (“Element tests promote certainty, uniformity, stability, and security.”); James D. Ridgway, Changing Voices in A Familiar Conversation About Rules vs. Standards: Veterans Law at the Federal Circuit in 2011, 61 Am. U. L. Rev. 1175, 1184 (2012) (indicating that it is more difficult to create clear rules, but once created the clear rules are easier to apply and enforce). 

[223] See Schlag, supra note 154, at 398 (indicating that while balancing tests provide no advanced notice, bright-line rules provide at least some advanced notice). 

[224] See Schlag, supra note 154, at 388 (indicating that where the outcome is unclear, those who have the most to lose will seek to challenge the communication before a judge).

[225] The analysis here is similar to showing the declarant’s belief that death is imminent for the dying declaration exception.  Fed. R. Evid. 804(b)(2).

[226] Michigan v. Bryant, 562 U.S. 344, ___. 131 S.Ct. 1143, 1162 (2011) (all relevant information). 

[227] United States v. Salerno, 481 U.S. 739, 755 (1987) (holding the government may deny bail where the defendant poses a threat to the safety of other citizens); Rehman v. State of Cal., 85 S.Ct. 8, 9 (1964) (indicating that it would be irresponsible for a court to grant bail where the defendant is a danger to the community).

[228] Bullcoming v. New Mexico, 131 S.Ct. 2705, 2727 (2011) (“[T]he basic purpose of the [Confrontation] Clause was to address the sort of abuses exemplified at the notorious treason trial of Sir Walter Raleigh.” (citing Crawford v. Washington, 541 U.S. 36, 51 (2004)).

[229] E.g., Ohio v. Roberts, 448 U.S. 56, 182 (1980) (“[A] literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable . . . .”).  Contra Mattox v. United States, 156 U.S. 237, 243-44 (1895) (indicating that a literal reading of the Confrontation Clause would result in “a manifest failure of justice.”).

[230] Crawford v. Washington, 541 U.S. 36, 74-75 (2004) (Rehnquist, J., concurring) (alterations in original) (quoting another source) (internal quotation marks omitted) (“[I]n a given instance [cross-examination may] be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.”); Mattox, 156 U.S. at 243 (“The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.”).

[231] E.g., In Re Clausen, 442 Mich. 648, 660 (1993) (“No system of laws is perfect.”); Jean Maneke, The Sun Shines a Little Brighter: Changes to Chapter 610, 55 J. Mo. B. 22, 23 (1999) (“No law is ever perfect . . . .”).

[232] John Adams, The Boston Massacre, in 1 The World's Best Orations from the Earliest Period to the Present Time 45-46 (David J. Brewer ed. 2005) (“[I]t  is of more importance to the community that innocence should be protected than it is that guilty should be punished . . . .”); See Bryant, 131 S.Ct. at 1176 (Scalia, J., dissenting) (arguing that the Constitution depends on a judicial culture that has the courage to announce unpopular decisions).

[233] See Schlag, supra note 154, at 400 (explaining that bright-line tests are “unable to reach the most equitable solution in every situation.”).

[234] Robert P. Mosteller, Confrontation in Children's Cases: The Dimensions of Limited Coverage, 20 J.L. & Pol'y 393, 404 (2012) (indicating that courts applying Bryant can expand the ongoing emergency to include potential dangers to the child); See Cf. Giles v. California, 554 U.S. 353, 380 (2008) (Souter, J., concurring) (arguing the intent to isolate the victim from outside help, in domestic-violence situations, should extend the entire duration of the relationship for the purposes of forfeiture).

[235] See Stephen J. Ceci & Maggie Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, 224-25, 272 (Am. Psychological Ass’n 1995) (indicating that the suggestibility rate of younger children was higher than older children due to younger children having a more limited understanding of how the world works).

[236] See I.N.S. v. Chadha, 462 U.S. 919, 959 (1983) (referencing the Constitutional Convention and debates in the States preceding ratification of the Constitution).

[237] Raleigh’s Case, 2 How. St. Tr. 1, 18 (1603).

 

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