The Supreme Court handed down a 6–2 decision (with Kagan recused) recently where it allowed police officers to testify about what a mortally wounded crime victim said about the identity and description of his shooter before he died. The Court ruled in Michigan v. Bryant that the victim’s statements did not violate the Confrontation Clause of the Constitution because they were not testimonial because their primary purpose was to enable police assistance to meet an ongoing emergency.
The Supreme Court of Michigan held that the question of whether the victim’s statements would have been admissible as “dying declarations” was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances. The trial court ruled that the statements were admissible as excited utterances and did not address their admissibility as dying declarations. Because of the State’s failure to preserve its argument with regard to dying declarations, the Court did not decide that question here.
Justice Sotomayor wrote the majority opinion joined by Roberts, Alito, Kennedy and Breyer; Justice Thomas concurred; and both Justices Scalia and Ginsburg dissented.
The interesting part of the decision was the harsh dissent authored by Scalia.
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.
Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a radio dispatch indicating that a man had been shot. At the scene, they found the victim, Anthony Covington, lying on the ground next to his car in a gas station parking lot. Covington had a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty.
The police asked him “what had happened, who had shot him, and where the shooting had occurred.” Covington stated that “Rick” shot him at around 3 a.m. He also indicated that he had a conversation with Bryant, whom he recognized based on his voice, through the back door of Bryant’s house. Covington explained that when he turned to leave, he was shot through the door and then drove to the gas station, where police found him.
Covington’s conversation with the police ended within 5 to 10 minutes when emergency medical services arrived. Covington was transported to a hospital and died within hours. The police left the gas station after speaking with Covington, called for backup, and traveled to Bryant’s house. They did not find Bryant there but did find blood and a bullet on the back porch and an apparent bullet hole in the back door. Police also found Covington’s wallet and identification outside the house.