Legal Commentary

Michigan v. Bryant and the Future of the Confrontation Clause

By Orin Kerr

The Supreme Court handed down Michigan v. Bryant today, and it voted 6?2 (with Kagan recused) to allow police officers to testify about what a mortally wounded crime victim told the police about the identity and description of his shooter. The case involves the Confrontation Clause, and the issue is whether the statement of the individual who was not present and could not be cross-examined (being dead and all) could be admitted. The Court held that the statements could be admitted because they were not ?testimonial? ? their primary purpose was to enable police assistance to meet an on-going emergency. Justice Sotomayor wrote the majority opinion joined by Roberts, Alito, Kennedy and Breyer. Justice Thomas concurred, and both Justices Scalia and Ginsburg dissented.

The case seems destined to be known in part for its absolutely blistering solo dissent by Justice Scalia. Yes, it?s blistering even by Justice Scalia standards, perhaps because he was writing just for himself. I may as well get to that, as everyone else will. Here?s Scalia?s introduction:

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.

Also from the opinion:

[T]oday?s decision is not only a gross distortion of the facts. It is a gross distortion of the law?a revisionist narrative in which reliability continues to guide our Con? frontation Clause jurisprudence, at least where emergen? cies and faux emergencies are concerned. . . .

Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford?s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by follow? ing today?s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices? preference comports with the meaning of the Confrontation Clause that the People adopted?or to confess that only the Justices? preference really matters.

And the conclusion:

Judicial decisions, like the Constitution itself, are nothing more than ?parchment barriers,? 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges? policy preferences. Today?s opinion falls far short of living up to that obligation?short on the facts, and short on the law.
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the proce? dures that our Constitution requires. And what has been taken away from him has been taken away from us all.

Full post as published by The Volokh Conspiracy on February 28, 2011 (boomark / email).