For a brief, bright, shining moment on the top of the hill, there was confrontation.  And now it’s gone.

The 6-2 decision of the Supreme Court in  Michigan v. Bryant is like a big, speeding Mack Truck being driven through the tiny gap left open in Crawford v. Washington, the watershed decision restoring the 6th Amendment’s promise to the accused to be able to confront witnesses against him.  The gap was the word “testimonial,” left undefined at the time with the vague promise of the loophole that swallowed the rule.

Then came Davis v. Washington, a domestic violence case where the Supremes held that the testimonial nature of a statement should be objectively determined, a troubling development in that it allows a court to manufacture its own reality without regard to the nature or purpose of a declarant.  Yet the court in Davis, and its companion case of Hammom v. Indiana, held that statements to police were “inherently testimonial,” except where the declarant was in imminent danger, and the statements were needed to “resolve” the emergency.

And now comes Bryant.  The victim, Anthony Covington, shot in the abdomen, questioned by police at a gas station six blocks away, gives the name and description of the shooter, Richard Perry Bryant.  Covington is taken to the hospital, where he dies about an hour later.

The MIchigan Supreme Court held that the admission of Covington’s statements against Bryant violated the confrontation clause.

The court therefore assessed whether Covington’s statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred; the ‘primary purpose’ was not to enable police assistance to meet an ongoing emergency.”

The Supreme Court, with the majority opinion written by Justice Sonia Sotomayor, reversed.

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 “prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832.

Because Convington’s shooter had yet to be arrested, the Court concluded that the threatening situation had not come to an end. So what if they were now 6 blocks away. So what if there was a platoon of cops around. So what it there was no indication that Bryant, who shot Covington through a door, had plans to walk the streets shooting up everyone in sight.  It could have been, and under an objective test, any argument that appears plausible, no matter how hard one has to squint, is good enough. 

And then the court said:

Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

Did you catch that?  The “prospect of fabrication” language?  As in “indicia of reliability,” the justification for ignoring the existence of the confrontation clause in Ohio v. Roberts?  This was rejected in Crawford, where Justice Antonin Scalia wrote that the promise of confrontation in the 6th Amendment could not be judicially wiped away by perceived reliability, and was, by constitutional mandate, subject to the crucible of cross-examination.  It’s back.

Sotomayor explained that the “ongoing emergency” language is a “highly context-dependent inquiry,” meaning that there is no rule, as one might have believed from Davis, but rather a wholly open-ended determination, where ignorance of details serves to expand the authority of police and diminish the rights of the accused.  It’s not limited to the objective purpose of the declarant, but includes the interrogator as well (as if the speaker’s testimonial purpose is somehow controlled or altered by those who hear his statements).

The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession.

Nor are the victims’ purpose necessarily clear:

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated.

It is thus back to the totality of the circumstances, subject to any argument that can manufacture an explanation that renders a statement non-testimonial without regard to the actual intention of the declarant, as in identifying the shooter so he can be arrested and convicted.  It’s back to the creation of a fantasy that justifies the admission of statements for their truth that are not subject to cross because the courts has wrapped them up in a benign, if wholly false, explanation.  Bye, Crawford.

Justice Ginsburg dissents:

Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial.”

Nino dissented as well, but he was less kind than Justice Ginsburg.  You can read some excepts from his dissent here, and I suspect you will be hearing about it from numerous others, thus relieving me of the burden.

Just as Crawford sought to slam shut the door that allowed judges to craft and engraft exceptions on the confrontation clause, Bryant cranks up the Mack truck to drive full speed through the testimonial gap, returning us to the days of rhetorical splendor, where prosecutors and judges are empowered to create fantastical scenarios of purpose and goal, seizing upon any piece of the fact pattern that might justify a benign purpose, and reaching the conclusion that some objective primary goal that miraculously removes it from the testimonial category, and therefore allows it to be introduced without being subject to the crucible of cross. 

The rationale of insignificant non-testimonial motives, combined with indicia of reliability, will pervade the decision, until we find ourselves back to the good old days of the most damning evidence spread across the courtroom, yet the accused denied any opportunity to confront.  But what harm could there be, since guilt will be proven reliably.

And tomorrow brings oral argument in Bullcoming v. New Mexico, challenging  the holding of  Melendez-Diaz, that the forensic chemist who actually performed the clearly testimonial tests sought to be used to conclusively prove a critical element of a crime can be replaced by a bobble-head

It was a bright, shining moment for confrontation indeed.  And now it’s gone.