Michigan v. Bryant , 131 S. Ct. 1143 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MICHIGAN v. BRYANT
CERTIORARI TO THE SUPREME COURT OF MICHIGAN
No. 09–150. Argued October 5, 2010—Decided February 28, 2011
Michigan police dispatched to a gas station parking lot found Anthony
Covington mortally wounded. Covington told them that he had been
shot by respondent Bryant outside Bryant’s house and had then
driven himself to the lot. At trial, which occurred before Crawford v.
Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813,
were decided, the officers testified about what Covington said. Bry
ant was found guilty of, inter alia, second-degree murder. Ulti
mately, the Michigan Supreme Court reversed his conviction, holding
that the Sixth Amendment’s Confrontation Clause, as explained in
Crawford and Davis, rendered Covington’s statements inadmissible
testimonial hearsay.
Held: Covington’s identification and description of the shooter and the
location of the shooting were not testimonial statements because they
had a “primary purpose . . . to enable police assistance to meet an on
going emergency.” Davis, 547 U. S., at 822. Therefore, their admis
sion at Bryant’s trial did not violate the Confrontation Clause. Pp. 5–
32.
(a) In Crawford, this Court held that in order for testimonial evi
dence to be admissible, the Sixth Amendment “demands . . . unavail
ability and a prior opportunity for cross-examination.” 541 U. S., at
68. Crawford did not “spell out a comprehensive definition of ‘testi
monial,’ ” but it noted that testimonial evidence includes, among
other things, “police interrogations.” Ibid. Thus, Sylvia Crawford’s
statements during a station-house interrogation about a stabbing
were testimonial, and their admission when her husband, the ac
cused, had “no opportunity” for cross-examination due to spousal
privilege made out a Sixth Amendment violation. In Davis and
Hammon, both domestic violence cases, the Court explained that
“[s]tatements are nontestimonial when made in the course of police
2 MICHIGAN v. BRYANT
Syllabus
interrogation under circumstances objectively indicating that the [in
terrogation’s] primary purpose . . . is to enable police assistance to
meet an ongoing emergency,” but they “are testimonial when the cir
cumstances objectively indicate that there is no such ongoing emer
gency, and that the [interrogation’s] primary purpose is to establish
or prove past events potentially relevant to later criminal prosecu
tion.” 547 U. S., at 822. Thus, a recording of a 911 call describing an
ongoing domestic disturbance was nontestimonial in Davis, where
the victim’s “elicited statements were necessary to be able to resolve
[the ongoing] emergency,” and the statements were not formal. Id.,
at 827. But the statements in Hammon were testimonial, where the
victim was interviewed after the event in a room separate from her
husband and “deliberately recounted, in response to police question
ing” the past events. Id., at 830. Here, the context is a nondomestic
dispute, with the “ongoing emergency” extending beyond an initial
victim to a potential threat to the responding police and the public.
This context requires additional clarification of what Davis meant by
“the primary purpose of the interrogation is to enable police assis
tance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.
(b) To make the “primary purpose” determination, the Court must
objectively evaluate the circumstances in which the encounter be
tween the individual and the police occurs and the parties’ state
ments and actions. Pp. 12–23.
(1) The primary purpose inquiry is objective. The circumstances
in which an encounter occurs—e.g., at or near a crime scene versus at
a police station, during an ongoing emergency or afterwards—are
clearly matters of objective fact. And the relevant inquiry into the
parties’ statements and actions is not the subjective or actual purpose
of the particular parties, but the purpose that reasonable partici
pants would have had, as ascertained from the parties’ statements
and actions and the circumstances in which the encounter occurred.
P. 13.
(2) The existence of an “ongoing emergency” at the time of the
encounter is among the most important circumstances informing the
interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828–
830. An emergency focuses the participants not on “prov[ing] past
events potentially relevant to later criminal prosecution,” id., at 822,
but on “end[ing] a threatening situation,” id., at 832. The Michigan
Supreme Court failed to appreciate that whether an emergency exists
and is ongoing is a highly context-dependent inquiry. An assessment
of whether an emergency threatening the police and public is ongoing
cannot narrowly focus on whether the threat to the first victim has
been neutralized because the threat to the first responders and public
may continue. The State Supreme Court also did not appreciate that
Cite as: 562 U. S. ____ (2011) 3
Syllabus
an emergency’s duration and scope may depend in part on the type of
weapon involved; the court below relied on Davis and Hammon,
where the assailants used their fists, as controlling the scope of an
emergency involving a gun. A victim’s medical condition is important
to the primary purpose inquiry to the extent that it sheds light on the
victim’s ability to have any purpose at all in responding to police
questions and on the likelihood that any such purpose would be a tes
timonial one. It also provides important context for first responders
to judge the existence and magnitude of a continuing threat to the
victim, themselves, and the public. This does not mean that an
emergency lasts the entire time that a perpetrator is on the loose, but
trial courts can determine in the first instance when an interrogation
transitions from nontestimonial to testimonial. Finally, whether an
ongoing emergency exists is simply one factor informing the ultimate
inquiry regarding an interrogation’s “primary purpose.” Another is
the encounter’s informality. Formality suggests the absence of an
emergency, but informality does not necessarily indicate the presence
of an emergency or the lack of testimonial intent. The facts here—
the questioning occurred in an exposed, public area, before emer
gency medical services arrived, and in a disorganized fashion—
distinguish this case from Crawford’s formal station-house interroga
tion. Pp. 14–20.
(3) The statements and actions of both the declarant and interro
gators also provide objective evidence of the interrogation’s primary
purpose. Looking to the contents of both the questions and the an
swers ameliorates problems that could arise from looking solely to
one participant, since both interrogators and declarants may have
mixed motives. Police officers’ dual responsibilities as both first re
sponders and criminal investigators may lead them to act with differ
ent motives simultaneously or in quick succession. And during an
ongoing emergency, victims may want the threat to end, but may not
envision prosecution. Alternatively, a severely injured victim may
have no purpose at all in answering questions. Taking into account
such injuries does not make the inquiry subjective. The inquiry still
focuses on the understanding and purpose of a reasonable victim in
the actual victim’s circumstances, which prominently include the vic
tim’s physical state. Objectively ascertaining the primary purpose of
the interrogation by examining the statements and actions of all par
ticipants is also consistent with this Court’s prior holdings. E.g.,
Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23.
(c) Here, the circumstances of the encounter as well as the state
ments and actions of Covington and the police objectively indicate
that the interrogation’s “primary purpose” was “to enable police as
sistance to meet an ongoing emergency,” 547 U. S., at 822. The cir
4 MICHIGAN v. BRYANT
Syllabus
cumstances of the interrogation involved an armed shooter, whose
motive for and location after the shooting were unknown and who
had mortally wounded Covington within a few blocks and a few min
utes of the location where police found Covington. Unlike the emer
gencies in Davis and Hammon, this dispute’s potential scope and
thus the emergency encompassed a potential threat to the police and
the public. And since this case involved a gun, the physical separa
tion that was sufficient to end the emergency in Hammon was not
necessarily sufficient to end the threat here. Informed by the circum
stances of the ongoing emergency, the Court now turns to determin
ing the “primary purpose of the interrogation” as evidenced by the
statements and actions of Covington and the police. The circum
stances of the encounter provide important context for understanding
Covington’s statements to the police. When he responded to their
questions, he was lying in a gas station parking lot bleeding from a
mortal gunshot wound, and his answers were punctuated with ques
tions about when emergency medical services would arrive. Thus,
this Court cannot say that a person in his situation would have had a
“primary purpose” “to establish or prove past events potentially rele
vant to later criminal prosecution.” Ibid. For their part, the police
responded to a call that a man had been shot. They did not know
why, where, or when the shooting had occurred; the shooter’s loca
tion; or anything else about the crime. They asked exactly the type of
questions necessary to enable them “to meet an ongoing emergency.”
Ibid. Nothing in Covington’s responses indicated to the police that
there was no emergency or that the emergency had ended. Finally,
this situation is more similar to the informal, harried 911 call in
Davis than to the structured, station-house interview in Crawford.
The officers all arrived at different times; asked, upon arrival, what
had happened; and generally did not conduct a structured interroga
tion. The informality suggests that their primary purpose was to ad
dress what they considered to be an ongoing emergency, and the cir
cumstances lacked a formality that would have alerted Covington to
or focused him on the possible future prosecutorial use of his state
ments. Pp. 23–32.
483 Mich. 132, 768 N. W. 2d 65, vacated and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed
an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J.,
filed dissenting opinions. KAGAN, J., took no part in the consideration
or decision of the case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–150
_________________
MICHIGAN, PETITIONER v. RICHARD PERRY
BRYANT
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF MICHIGAN
[February 28, 2011]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
At respondent Richard Bryant’s trial, the court admitted
statements that the victim, Anthony Covington, made to
police officers who discovered him mortally wounded in a
gas station parking lot. A jury convicted Bryant of, inter
alia, second-degree murder. 483 Mich. 132, 137, 768
N. W. 2d 65, 67–68 (2009). On appeal, the Supreme Court
of Michigan held that the Sixth Amendment’s Confronta
tion Clause, as explained in our decisions in Crawford v.
Washington, 541 U. S. 36 (2004), and Davis v. Washington,
547 U. S. 813 (2006), rendered Covington’s statements
inadmissible testimonial hearsay, and the court reversed
Bryant’s conviction. 483 Mich., at 157, 768 N. W. 2d, at
79. We granted the State’s petition for a writ of certiorari
to consider whether the Confrontation Clause barred the
admission at trial of Covington’s statements to the police.
We hold that the circumstances of the interaction between
Covington and the police objectively indicate that the
“primary purpose of the interrogation” was “to enable
police assistance to meet an ongoing emergency.” Davis,
547 U. S., at 822. Therefore, Covington’s identification
2 MICHIGAN v. BRYANT
Opinion of the Court
and description of the shooter and the location of the
shooting were not testimonial statements, and their ad
mission at Bryant’s trial did not violate the Confrontation
Clause. We vacate the judgment of the Supreme Court of
Michigan and remand.
I
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.” 483
Mich., at 143, 768 N. W. 2d, at 71. Covington stated that
“Rick” shot him at around 3 a.m. Id., at 136, and n. 1, 768
N. W. 2d, at 67, and n. 1. 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. Cov
ington 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.
At trial, which occurred prior to our decisions in Craw
ford, 541 U. S. 36, and Davis, 547 U. S. 813, the police
officers who spoke with Covington at the gas station testi
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
fied about what Covington had told them. The jury re
turned a guilty verdict on charges of second-degree
murder, being a felon in possession of a firearm, and pos
session of a firearm during the commission of a felony.
Bryant appealed, and the Michigan Court of Appeals
affirmed his conviction. No. 247039, 2004 WL 1882661(Aug. 24, 2004) (per curiam). Bryant then appealed to the
Supreme Court of Michigan, arguing that the trial court
erred in admitting Covington’s statements to the police.
The Supreme Court of Michigan eventually remanded the
case to the Court of Appeals for reconsideration in light of
our 2006 decision in Davis. 477 Mich. 902, 722 N. W. 2d
797 (2006). On remand, the Court of Appeals again af
firmed, holding that Covington’s statements were properly
admitted because they were not testimonial. No. 247039,
2007 WL 675471 (Mar. 6, 2007) (per curiam). Bryant
again appealed to the Supreme Court of Michigan, which
reversed his conviction. 483 Mich. 132, 768 N. W. 2d 65.
Before the Supreme Court of Michigan, Bryant argued
that Covington’s statements to the police were testimonial
under Crawford and Davis and were therefore inadmissi
ble. The State, on the other hand, argued that the state
ments were admissible as “excited utterances” under the
Michigan Rules of Evidence. 483 Mich., at 142, and n. 6,
768 N. W. 2d, at 70, and n. 6. There was no dispute that
Covington was unavailable at trial and Bryant had no
prior opportunity to cross-examine him. The court there
fore 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 con
cluded 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.” Id., at 143, 768 N. W. 2d, at 71. The
4 MICHIGAN v. BRYANT
Opinion of the Court
court explained that, in its view, Covington was describing
past events and as such, his “primary purpose in making
these statements to the police . . . was . . . to tell the police
who had committed the crime against him, where the
crime had been committed, and where the police could find
the criminal.” Id., at 144, 768 N. W. 2d, at 71. Noting
that the officers’ actions did not suggest that they per
ceived an ongoing emergency at the gas station, the court
held that there was in fact no ongoing emergency. Id., at
145–147, 768 N. W. 2d, at 71–73. The court distinguished
the facts of this case from those in Davis, where we held a
declarant’s statements in a 911 call to be nontestimonial.
It instead analogized this case to Hammon v. Indiana,
which we decided jointly with Davis and in which we
found testimonial a declarant’s statements to police just
after an assault. See 547 U. S., at 829–832. Based on this
analysis, the Supreme Court of Michigan held that the
admission of Covington’s statements constituted prejudi
cial plain error warranting reversal and ordered a new
trial. 483 Mich., at 151–153, 768 N. W. 2d, at 75–76. The
court did not address whether, absent a Confrontation
Clause bar, the statements’ admission would have been
otherwise consistent with Michigan’s hearsay rules or due
process.1
——————
1 The Supreme Court of Michigan held that the question 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. 483 Mich., at153–154, 768 N. W. 2d, at 76–77. This occurred prior to our 2004
decision in Crawford v. Washington, 541 U. S. 36, where we first
suggested that dying declarations, even if testimonial, might be admis
sible as a historical exception to the Confrontation Clause. Id., at 56,
n. 6; see also Giles v. California, 554 U. S. 353, 358–359 (2008). We
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Opinion of the Court
The majority’s opinion provoked two dissents, both of
which would have held Covington’s statements admissible
because they were made in circumstances indicating that
their “primary purpose” was to assist police in addressing
an ongoing emergency. Id., at 157, 768 N. W. 2d, at 79(opinion of Weaver, J.); id., at 157–158, 768 N. W. 2d, at
79 (opinion of Corrigan, J.). Justice Corrigan’s dissent
explained that the time and space between “the onset of
an emergency and statements about that emergency
clearly must be considered in context.” Id., at 161, 768
N. W. 2d, at 80. Justice Corrigan concluded that the
objective circumstances of Covington’s interaction with
police rendered this case more similar to the nontestimo
nial statements in Davis than to the testimonial state
ments in Crawford. 483 Mich., at 164, 768 N. W. 2d,
at 82.
We granted certiorari to determine whether the Con
frontation Clause barred admission of Covington’s state
ments. 559 U. S. ___ (2010).
II
The Confrontation Clause of the Sixth Amendment
states: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.” The Fourteenth Amendment renders the
Clause binding on the States. Pointer v. Texas, 380 U. S.
400, 403 (1965). In Ohio v. Roberts, 448 U. S. 56, 66
(1980), we explained that the confrontation right does not
bar admission of statements of an unavailable witness if
the statements “bea[r] adequate ‘indicia of reliability.’ ”
——————
noted in Crawford that we “need not decide in this case whether the
Sixth Amendment incorporates an exception for testimonial dying
declarations.” 541 U. S., at 56, n. 6. Because of the State’s failure to
preserve its argument with regard to dying declarations, we similarly
need not decide that question here. See also post, p. __ (GINSBURG, J.,
dissenting).
6 MICHIGAN v. BRYANT
Opinion of the Court
We held that reliability can be established if “the evidence
falls within a firmly rooted hearsay exception,” or if it does
not fall within such an exception, then if it bears “particu
larized guarantees of trustworthiness.” Ibid.Nearly a quarter century later, we decided Crawford v.
Washington, 541 U. S. 36. Petitioner Michael Crawford
was prosecuted for stabbing a man who had allegedly
attempted to rape his wife, Sylvia. Sylvia witnessed the
stabbing, and later that night, after she and her husband
were both arrested, police interrogated her about the
incident. At trial, Sylvia Crawford claimed spousal privi
lege and did not testify, but the State introduced a tape
recording of Sylvia’s statement to the police in an effort to
prove that the stabbing was not in self-defense, as Michael
Crawford claimed. The Washington Supreme Court af
firmed Crawford’s conviction because it found Sylvia’s
statement to be reliable, as required under Ohio v. Rob
erts. We reversed, overruling Ohio v. Roberts. 541 U. S.,
at 60–68; see also Davis, 547 U. S., at 825, n. 4.
Crawford examined the common-law history of the
confrontation right and explained that “the principal evil
at which the Confrontation Clause was directed was the
civil-law mode of criminal procedure, and particularly its
use of ex parte examinations as evidence against the ac
cused.” 541 U. S., at 50. We noted that in England, pre
trial examinations of suspects and witnesses by govern
ment officials “were sometimes read in court in lieu of live
testimony.” Id., at 43. In light of this history, we empha
sized the word “witnesses” in the Sixth Amendment, defin
ing it as “those who ‘bear testimony.’ ” Id., at 51 (quoting
2 N. Webster, An American Dictionary of the English
Language (1828)). We defined “testimony” as “ ‘ [a] solemn
declaration or affirmation made for the purpose of estab
lishing or proving some fact.’ ” 541 U. S., at 51 (quoting
Webster). We noted that “[a]n accuser who makes a for
mal statement to government officers bears testimony in a
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
sense that a person who makes a casual remark to an
acquaintance does not.” Ibid. We therefore limited the
Confrontation Clause’s reach to testimonial statements
and held that in order for testimonial evidence to be ad
missible, the Sixth Amendment “demands what the com
mon law required: unavailability and a prior opportunity
for cross-examination.” Id., at 68. Although “leav[ing] for
another day any effort to spell out a comprehensive defini
tion of ‘testimonial,’ ” Crawford noted that “at a minimum”
it includes “prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and . . . police
interrogations.” Ibid. Under this reasoning, we held that
Sylvia Crawford’s statements in the course of police ques
tioning were testimonial and that their admission when
Michael Crawford “had no opportunity to cross-examine
her” due to spousal privilege was “sufficient to make out a
violation of the Sixth Amendment.” Ibid.In 2006, the Court in Davis v. Washington and Hammon
v. Indiana, 547 U. S. 813, took a further step to “deter
mine more precisely which police interrogations produce
testimony” and therefore implicate a Confrontation Clause
bar. Id., at 822. We explained that when Crawford said
that
“ ‘interrogations by law enforcement officers fall
squarely within [the] class’ of testimonial hearsay, we
had immediately in mind (for that was the case before
us) interrogations solely directed at establishing the
facts of a past crime, in order to identify (or provide
evidence to convict) the perpetrator. The product of
such interrogation, whether reduced to a writing
signed by the declarant or embedded in the memory
(and perhaps notes) of the interrogating officer, is tes
timonial.” Davis, 547 U. S., at 826.
We thus made clear in Davis that not all those questioned
by the police are witnesses and not all “interrogations by
8 MICHIGAN v. BRYANT
Opinion of the Court
law enforcement officers,” Crawford, 541 U. S., at 53, are
subject to the Confrontation Clause.2
Davis and Hammon were both domestic violence cases.
In Davis, Michelle McCottry made the statements at issue
to a 911 operator during a domestic disturbance with
Adrian Davis, her former boyfriend. McCottry told the
operator, “ ‘He’s here jumpin’ on me again,’ ” and, “ ‘He’s
usin’ his fists.’ ” 547 U. S., at 817. The operator then
asked McCottry for Davis’ first and last names and middle
initial, and at that point in the conversation McCottry
reported that Davis had fled in a car. Id., at 818.
McCottry did not appear at Davis’ trial, and the State
introduced the recording of her conversation with the 911
operator. Id., at 819.
In Hammon, decided along with Davis, police responded
to a domestic disturbance call at the home of Amy and
Hershel Hammon, where they found Amy alone on the
front porch. Ibid. She appeared “ ‘somewhat frightened,’ ”
but told them “ ‘nothing was the matter.’ ” Ibid. (quoting
Hammon v. State, 829 N. E. 2d 444, 446–447 (Ind. 2005)).
She gave the police permission to enter the house, where
they saw a gas heating unit with the glass front shattered
on the floor. One officer remained in the kitchen with
Hershel, while another officer talked to Amy in the living
room about what had happened. Hershel tried several
times to participate in Amy’s conversation with the police
and became angry when the police required him to stay
separated from Amy. 547 U. S., at 819–820. The police
asked Amy to fill out and sign a battery affidavit. She
wrote: “ ‘Broke our Furnace & shoved me down on the floor
——————
2 We noted in Crawford that “[w]e use the term ‘interrogation’ in its
colloquial, rather than any technical legal, sense,” and that “[j]ust as
various definitions of ‘testimonial’ exist, one can imagine various
definitions of ‘interrogation,’ and we need not select among them in this
case.” 541 U. S., at 53, n. 4. Davis did not abandon those qualifica
tions; nor do we do so here.
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
into the broken glass. Hit me in the chest and threw me
down. Broke our lamps & phone. Tore up my van where I
couldn’t leave the house. Attacked my daughter.’ ” Id., at
820. Amy did not appear at Hershel’s trial, so the police
officers who spoke with her testified as to her statements
and authenticated the affidavit. Ibid. The trial court
admitted the affidavit as a present sense impression and
admitted the oral statements as excited utterances under
state hearsay rules. Ibid. The Indiana Supreme Court
affirmed Hammon’s conviction, holding that Amy’s oral
statements were not testimonial and that the admission of
the affidavit, although erroneous because the affidavit was
testimonial, was harmless. Hammon v. State, 829 N. E.
2d, at 458–459.
To address the facts of both cases, we expanded upon
the meaning of “testimonial” that we first employed in
Crawford and discussed the concept of an ongoing emer
gency. We explained:
“Statements are nontestimonial when made in the
course of police interrogation under circumstances ob
jectively 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 pur
pose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecu
tion.” Davis, 547 U. S., at 822.
Examining the Davis and Hammon statements in light of
those definitions, we held that the statements at issue
in Davis were nontestimonial and the statements in
Hammon were testimonial. We distinguished the state
ments in Davis from the testimonial statements in Craw
ford on several grounds, including that the victim in Davis
was “speaking about events as they were actually happen
10 MICHIGAN v. BRYANT
Opinion of the Court
ing, rather than ‘describ[ing] past events,’ ” that there was
an ongoing emergency, that the “elicited statements were
necessary to be able to resolve the present emergency,”
and that the statements were not formal. 547 U. S., at
827. In Hammon, on the other hand, we held that, “[i]t is
entirely clear from the circumstances that the interroga
tion was part of an investigation into possibly criminal
past conduct.” Id., at 829. There was “no emergency in
progress.” Ibid. The officer questioning Amy “was not
seeking to determine . . . ‘what is happening,’ but rather
‘what happened.’ ” Id., at 830. It was “formal enough”
that the police interrogated Amy in a room separate from
her husband where, “some time after the events described
were over,” she “deliberately recounted, in response to
police questioning, how potentially criminal past events
began and progressed.” Ibid. Because her statements
“were neither a cry for help nor the provision of informa
tion enabling officers immediately to end a threatening
situation,” id., at 832, we held that they were testimonial.
Davis did not “attemp[t] to produce an exhaustive classi
fication of all conceivable statements—or even all conceiv
able statements in response to police interrogation—as
either testimonial or nontestimonial.” Id., at 822.3 The
——————
3 Davis explained that 911 operators “may at least be agents of
law enforcement when they conduct interrogations of 911 callers,” and
therefore “consider[ed] their acts to be acts of the police” for purposes of
the opinion. 547 U. S., at 823, n. 2. Davis explicitly reserved the
question of “whether and when statements made to someone other than
law enforcement personnel are ‘testimonial.’ ” Ibid. We have no need to
decide that question in this case either because Covington’s statements
were made to police officers. The dissent also claims to reserve this
question, see post, at 3, n. 1 (opinion of SCALIA, J.), but supports one of
its arguments by relying on King v. Brasier, 1 Leach 199, 200, 168 Eng.
Rep. 202, 202–203 (K. B. 1779), which involved statements made by a
child to her mother—a private citizen—just after the child had been
sexually assaulted. See also Crawford v. Washington, 541 U. S. 36, 69–
70 (2004) (Rehnquist, C. J., concurring in judgment) (citing King v.
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
basic purpose of the Confrontation Clause was to “targe[t]”
the sort of “abuses” exemplified at the notorious treason
trial of Sir Walter Raleigh. Crawford, 541 U. S., at 51.
Thus, the most important instances in which the Clause
restricts the introduction of out-of-court statements are
those in which state actors are involved in a formal, out-of
court interrogation of a witness to obtain evidence for
trial.4 See id., at 43–44. Even where such an interroga
tion is conducted with all good faith, introduction of the
resulting statements at trial can be unfair to the accused
if they are untested by cross-examination. Whether for
mal or informal, out-of-court statements can evade the
basic objective of the Confrontation Clause, which is to
prevent the accused from being deprived of the opportu
nity to cross-examine the declarant about statements
taken for use at trial. When, as in Davis, the primary
purpose of an interrogation is to respond to an “ongoing
emergency,” its purpose is not to create a record for trial
and thus is not within the scope of the Clause. But there
may be other circumstances, aside from ongoing emergen
cies, when a statement is not procured with a primary
purpose of creating an out-of-court substitute for trial
testimony. In making the primary purpose determination,
standard rules of hearsay, designed to identify some state
——————
Brasier for the different proposition that “out-of-court statements made
by someone other than the accused and not taken under oath, unlike ex
parte depositions or affidavits, were generally not considered substan
tive evidence upon which a conviction could be based”).
4 Contrary to the dissent’s excited suggestion, nothing in this opinion
casts “favorable light,” post, at 11 (opinion of SCALIA, J.), on the conduct
of Sir Walter Raleigh’s trial or other 16th- and 17th-century English
treason trials. The dissent is correct that such trials are “unquestiona
bly infamous,” ibid., and our decision here confirms, rather than un
dermines, that assessment. See also n. 17, infra. For all of the
reasons discussed in JUSTICE THOMAS’ opinion concurring in the judg
ment, the situation presented in this case is nothing like the circum
stances presented by Sir Walter Raleigh’s trial. See post, p. __.
12 MICHIGAN v. BRYANT
Opinion of the Court
ments as reliable, will be relevant. Where no such pri
mary purpose exists, the admissibility of a statement is
the concern of state and federal rules of evidence, not the
Confrontation Clause.5
Deciding this case also requires further explanation of
the “ongoing emergency” circumstance addressed in Davis.
Because Davis and Hammon arose in the domestic vio
lence context, that was the situation “we had immediately
in mind (for that was the case before us).” 547 U. S., at
826. We now face a new context: a nondomestic dispute,
involving a victim found in a public location, suffering
from a fatal gunshot wound, and a perpetrator whose
location was unknown at the time the police located the
victim. Thus, we confront for the first time circumstances
in which the “ongoing emergency” discussed in Davis
extends beyond an initial victim to a potential threat to
the responding police and the public at large. This new
context requires us to provide additional clarification with
regard to what Davis meant by “the primary purpose of
the interrogation is to enable police assistance to meet an
ongoing emergency.” Id., at 822.
III
To determine whether the “primary purpose” of an
interrogation is “to enable police assistance to meet an
ongoing emergency,” Davis, 547 U. S., at 822, which would
render the resulting statements nontestimonial, we objec
tively evaluate the circumstances in which the encounter
occurs and the statements and actions of the parties.
——————
5 See Davis v. Washington, 547 U. S. 813, 823–824 (2006) (explaining
the question before the Court as “whether the Confrontation Clause
applies only to testimonial hearsay” and answering in the affirmative
because “[a] limitation so clearly reflected in the text of the constitu
tional provision must fairly be said to mark out not merely its ‘core,’ but
its perimeter”). See also post, at 2 (SCALIA, J., dissenting).
Cite as: 562 U. S. ____ (2011)
13
Opinion of the Court
A
The Michigan Supreme Court correctly understood that
this inquiry is objective.6 483 Mich., at 142, 768 N. W. 2d,
at 70. Davis uses the word “objective” or “objectively” no
fewer than eight times in describing the relevant inquiry.
See 547 U. S., at 822, 826–828, 830–831, and n. 5; see, e.g.,
id., at 826 (“The question before us in Davis, then, is
whether, objectively considered, the interrogation that
took place in the course of the 911 call produced testimo
nial statements”). “Objectively” also appears in the defini
tions of both testimonial and nontestimonial statements
that Davis established. Id., at 822.
An objective analysis of the circumstances of an encoun
ter and the statements and actions of the parties to it
provides the most accurate assessment of the “primary
purpose of the interrogation.” The circumstances in which
an encounter occurs—e.g., at or near the scene of the crime
versus at a police station, during an ongoing emergency
or afterwards—are clearly matters of objective fact. The
statements and actions of the parties must also be objec
tively evaluated. That is, the relevant inquiry is not the
subjective or actual purpose of the individuals involved in
a particular encounter, but rather the purpose that rea
sonable participants would have had, as ascertained from
the individuals’ statements and actions and the circum
stances in which the encounter occurred.7
——————
6 Bryant suggests that Michigan is arguing for “a subjective analysis
of the intent of the interrogator’s questioning.” Brief for Respondent
12. We do not read Michigan’s brief to be arguing for a subjective
inquiry, and any such argument would be in error. We do not under
stand the dissent to disagree that the inquiry is objective.
7 This approach is consistent with our rejection of subjective inquiries
in other areas of criminal law. See, e.g., Whren v. United States, 517
U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reason
ableness subjectively in light of the officers’ actual motivations); New
York v. Quarles, 467 U. S. 649, 655–656, and n. 6 (1984) (holding that
an officer’s subjective motivation is irrelevant to determining the
14 MICHIGAN v. BRYANT
Opinion of the Court
B
As our recent Confrontation Clause cases have ex
plained, the existence of an “ongoing emergency” at the
time of an encounter between an individual and the police
is among the most important circumstances informing the
“primary purpose” of an interrogation. See Davis, 547
U. S., at 828–830; Crawford, 541 U. S., at 65. The exis
tence 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.”8 Davis, 547 U. S., at 822. Rather,
it focuses them on “end[ing] a threatening situation.” Id.,
at 832. 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 signifi
cantly diminished, the Confrontation Clause does not
require such statements to be subject to the crucible of
cross-examination.
This logic is not unlike that justifying the excited utter
ance exception in hearsay law. Statements “relating to a
startling event or condition made while the declarant was
under the stress of excitement caused by the event or
——————
applicability of the public safety exception to Miranda v. Arizona, 384
U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980)
(holding that a police officer’s subjective intent to obtain incriminatory
statements is not relevant to determining whether an interrogation has
occurred).
8 The existence of an ongoing emergency must be objectively assessed
from the perspective of the parties to the interrogation at the time, not
with the benefit of hindsight. If the information the parties knew at
the time of the encounter would lead a reasonable person to believe
that there was an emergency, even if that belief was later proved
incorrect, that is sufficient for purposes of the Confrontation Clause.
The emergency is relevant to the “primary purpose of the interrogation”
because of the effect it has on the parties’ purpose, not because of its
actual existence.
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
condition,” Fed. Rule Evid. 803(2); see also Mich. Rule
Evid. 803(2) (2010), are considered reliable because the
declarant, in the excitement, presumably cannot form a
falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990)
(“The basis for the ‘excited utterance’ exception . . . is that
such statements are given under circumstances that
eliminate the possibility of fabrication, coaching, or con
fabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s
Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed.
2010) (same); Advisory Committee’s Notes on Fed. Rule
Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing
emergency has a similar effect of focusing an individual’s
attention on responding to the emergency.9
Following our precedents, the court below correctly
began its analysis with the circumstances in which Cov
ington interacted with the police. 483 Mich., at 143, 768
——————
9 Many other exceptions to the hearsay rules similarly rest on the
belief that certain statements are, by their nature, made for a purpose
other than use in a prosecution and therefore should not be barred by
hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement
by a co-conspirator during and in furtherance of the conspiracy); 803(4)
(Statements for Purposes of Medical Diagnosis or Treatment); 803(6)
(Records of Regularly Conducted Activity); 803(8) (Public Records and
Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Reli
gious Organizations); 803(12) (Marriage, Baptismal, and Similar
Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against
Interest); see also Melendez-Diaz v. Massachusetts, 557 U. S. __, __
(2009) (slip op., at 18) (“Business and public records are generally
admissible absent confrontation not because they qualify under an
exception to the hearsay rules, but because—having been created for
the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not testimonial”);
Giles v. California, 554 U. S., at 376 (noting in the context of domestic
violence that “[s]tatements to friends and neighbors about abuse and
intimidation and statements to physicians in the course of receiving
treatment would be excluded, if at all, only by hearsay rules”); Craw
ford, 541 U. S., at 56 (“Most of the hearsay exceptions covered state
ments that by their nature were not testimonial—for example, business
records or statements in furtherance of a conspiracy”).
16 MICHIGAN v. BRYANT
Opinion of the Court
N. W. 2d, at 71. But in doing so, the court construed Davis
to have decided more than it did and thus employed an
unduly narrow understanding of “ongoing emergency” that
Davis does not require.
First, the Michigan Supreme Court repeatedly and
incorrectly asserted that Davis “defined” “ ‘ongoing emer
gency.’ ” 483 Mich., at 147, 768 N. W. 2d, at 73; see also
id., at 144, 768 N. W. 2d, at 71–72. In fact, Davis did not
even define the extent of the emergency in that case. The
Michigan Supreme Court erroneously read Davis as decid
ing that “the statements made after the defendant stopped
assaulting the victim and left the premises did not occur
during an ‘ongoing emergency.’ ” 483 Mich., at 150, n. 15,
768 N. W. 2d, at 75, n. 15. We explicitly explained in
Davis, however, that we were asked to review only the
testimonial nature of Michelle McCottry’s initial state
ments during the 911 call; we therefore merely assumed
the correctness of the Washington Supreme Court’s hold
ing that admission of her other statements was harmless,
without deciding whether those subsequent statements
were also made for the primary purpose of resolving an
ongoing emergency. 547 U. S., at 829.
Second, by assuming that Davis defined the outer
bounds of “ongoing emergency,” the Michigan Supreme
Court failed to appreciate that whether an emergency
exists and is ongoing is a highly context-dependent in
quiry. See Brief for United States as Amicus Curiae 20.
Davis and Hammon involved domestic violence, a known
and identified perpetrator, and, in Hammon, a neutralized
threat. Because Davis and Hammon were domestic vio
lence cases, we focused only on the threat to the victims
and assessed the ongoing emergency from the perspective
of whether there was a continuing threat to them. 547
U. S., at 827, 829–830.
Domestic violence cases like Davis and Hammon often
have a narrower zone of potential victims than cases
Cite as: 562 U. S. ____ (2011) 17
Opinion of the Court
involving threats to public safety. An assessment of
whether an emergency that threatens the police and pub
lic is ongoing cannot narrowly focus on whether the threat
solely to the first victim has been neutralized because the
threat to the first responders and public may continue.
See 483 Mich., at 164, 768 N. W. 2d, at 82 (Corrigan, J.,
dissenting) (examining the threat to the victim, police, and
the public); Brief for United States as Amicus Curiae 19–
20 (“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”).
The Michigan Supreme Court also did not appreciate
that the duration and scope of an emergency may depend
in part on the type of weapon employed. The court relied
on Davis and Hammon, in which the assailants used their
fists, as controlling the scope of the emergency here, which
involved the use of a gun. The problem with that reason
ing is clear when considered in light of the assault on Amy
Hammon. Hershel 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. 547 U. S., at830–832. 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., at 819.
The Michigan Supreme Court’s failure to focus on the
context-dependent nature of our Davis decision also led it
to conclude that the medical condition of a declarant is
irrelevant. 483 Mich., at 149, 768 N. W. 2d, at 74 (“The
Court said nothing at all that would remotely suggest that
whether the victim was in need of medical attention was
in any way relevant to whether there was an ‘ongoing
emergency’ ”). But Davis and Hammon did not present
medical emergencies, despite some injuries to the victims.
547 U. S., at 818, 820. Thus, we have not previously
considered, much less ruled out, the relevance of a victim’s
severe injuries to the primary purpose inquiry.
18 MICHIGAN v. BRYANT
Opinion of the Court
Taking into account the victim’s medical state does not,
as the Michigan Supreme Court below thought, “rende[r]
non-testimonial” “all statements made while the police are
questioning a seriously injured complainant.” 483 Mich.,
at 149, 768 N. W. 2d, at 74. 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.
As the Solicitor General’s brief observes, Brief for
United States as Amicus Curiae 20, and contrary to the
Michigan Supreme Court’s claims, 483 Mich., at 147, 768
N. W. 2d, at 73, none of this suggests that an emergency is
ongoing in every place or even just surrounding the victim
for the entire time that the perpetrator of a violent crime
is on the loose. As we recognized in Davis, “a conversation
which begins as an interrogation to determine the need for
emergency assistance” can “evolve into testimonial state
ments.” 547 U. S., at 828 (internal quotation marks omit
ted). This evolution may occur if, for example, 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. It could also occur if a perpe
trator is disarmed, surrenders, is apprehended, or, as in
Davis, flees with little prospect of posing a threat to the
public. Trial courts can determine in the first instance
when any transition from nontestimonial to testimonial
occurs,10 and exclude “the portions of any statement that
——————
10 Recognizing the evolutionary potential of a situation in criminal
law is not unique to the Confrontation Clause context. We noted in
Cite as: 562 U. S. ____ (2011) 19
Opinion of the Court
have become testimonial, as they do, for example, with
unduly prejudicial portions of otherwise admissible evi
dence.” Id., at 829.
Finally, our discussion of the Michigan Supreme Court’s
misunderstanding of what Davis meant by “ongoing emer
gency” should not be taken to imply that the existence vel
non of an ongoing emergency is dispositive of the testimo
nial inquiry. As Davis made clear, whether an ongoing
emergency exists is simply one factor—albeit an important
factor—that informs the ultimate inquiry regarding the
“primary purpose” of an interrogation. Another factor the
Michigan Supreme Court did not sufficiently account for is
the importance of informality in an encounter between a
victim and police. Formality is not the sole touchstone of
our primary purpose inquiry because, although formality
suggests the absence of an emergency and therefore an
increased likelihood that the purpose of the interrogation
is to “establish or prove past events potentially relevant to
later criminal prosecution,” id., at 822, informality does
not necessarily indicate the presence of an emergency or
the lack of testimonial intent. Cf. id., at 826 (explaining
that Confrontation Clause requirements cannot “readily
be evaded” by the parties deliberately keeping the written
product of an interrogation informal “instead of having the
declarant sign a deposition”). The court below, however,
too readily dismissed the informality of the circumstances
in this case in a single brief footnote and in fact seems to
have suggested that the encounter in this case was formal.
483 Mich., at 150, n. 16, 768 N. W. 2d, at 75, n. 16. As we
——————
Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can
and will distinguish almost instinctively between questions necessary
to secure their own safety or the safety of the public and questions
designed solely to elicit testimonial evidence from a suspect, . . . trial
courts will recognize the point at which, for Sixth Amendment pur
poses, statements in response to interrogations become testimonial.”
547 U. S., at 829 (quoting New York v. Quarles, 467 U. S., at 658–659).
20 MICHIGAN v. BRYANT
Opinion of the Court
explain further below, the questioning in this case oc
curred in an exposed, public area, prior to the arrival of
emergency medical services, and in a disorganized fashion.
All of those facts make this case distinguishable from
the formal station-house interrogation in Crawford. See
Davis, 547 U. S., at 827.
C
In addition to the circumstances in which an encounter
occurs, the statements and actions of both the declarant
and interrogators provide objective evidence of the pri
mary purpose of the interrogation. See, e.g., Davis, 547
U. S., at 827 (“[T]he nature of what was asked and an
swered in Davis, again viewed objectively, was such that
the elicited statements were necessary to be able to resolve
the present emergency, rather than simply to learn (as in
Crawford) what had happened in the past” (first emphasis
added)). The Michigan Supreme Court did, at least
briefly, conduct this inquiry. 483 Mich., at 144–147, 768
N. W. 2d, at 71–73.
As the Michigan Supreme Court correctly recognized,
id., at 140, n. 5, 768 N. W. 2d, at 69, n. 5, Davis requires a
combined inquiry that accounts for both the declarant and
the interrogator.11 In many instances, the primary pur
——————
11 Some portions of Davis, however, have caused confusion about
whether the inquiry prescribes examination of one participant to the
exclusion of the other. Davis’ language indicating that a statement’s
testimonial or nontestimonial nature derives from “the primary pur
pose of the interrogation,” 547 U. S., at 822 (emphasis added), could be
read to suggest that the relevant purpose is that of the interrogator. In
contrast, footnote 1 in Davis explains, “it is in the final analysis the
declarant’s statements, not the interrogator’s questions, that the
Confrontation Clause requires us to evaluate.” Id., at 822–823, n. 1.
Bryant draws on the footnote to argue that the primary purpose inquiry
must be conducted solely from the perspective of the declarant, and
argues against adoption of a purpose-of-the-interrogator perspective.
Brief for Respondent 10–13; see also Brief for Richard D. Friedman as
Amicus Curiae 5–15. But this statement in footnote 1 of Davis merely
Cite as: 562 U. S. ____ (2011) 21
Opinion of the Court
pose of the interrogation will be most accurately ascer
tained 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.
The combined approach also ameliorates problems that
could arise from looking solely to one participant. Pre
dominant 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. See New York v. Quarles, 467 U. S.
649, 656 (1984) (“Undoubtedly most police officers [decid
ing whether to give Miranda warnings in a possible emer
gency situation] would act out of a host of different, in
stinctive, and largely unverifiable motives—their own
safety, the safety of others, and perhaps as well the desire
to obtain incriminating evidence from the suspect”); see
also Davis, 547 U. S., at 839 (THOMAS, J., concurring in
judgment in part and dissenting in part) (“In many, if not
most, cases where police respond to a report of a crime,
whether pursuant to a 911 call from the victim or other
wise, the purposes of an interrogation, viewed from the
perspective of the police, are both to respond to the emer
——————
acknowledges that the Confrontation Clause is not implicated when
statements are offered “for purposes other than establishing the truth
of the matter asserted.” Crawford, 541 U. S., at 60, n. 9. An interroga
tor’s questions, unlike a declarant’s answers, do not assert the truth of
any matter. The language in the footnote was not meant to determine
how the courts are to assess the nature of the declarant’s purpose, but
merely to remind readers that it is the statements, and not the ques
tions, that must be evaluated under the Sixth Amendment.
22 MICHIGAN v. BRYANT
Opinion of the Court
gency situation and to gather evidence”).
Victims are also likely to have mixed motives when they
make statements to the police. During an ongoing emer
gency, a victim is most likely to want the threat to her and
to other potential victims to end, but that does not neces
sarily mean that the victim wants or envisions prosecution
of the assailant. A victim may want the attacker to be
incapacitated temporarily or rehabilitated. Alternatively,
a severely injured victim may have no purpose at all in
answering questions posed; the answers may be simply
reflexive. The victim’s injuries could be so debilitating
as to prevent her from thinking sufficiently clearly to un
derstand whether her statements are for the purpose of
addressing an ongoing emergency or for the purpose of fu
ture prosecution.12 Taking into account a victim’s injuries
does not transform this objective inquiry into a subjective
one. The inquiry is still objective because it focuses on the
understanding and purpose of a reasonable victim in the
circumstances of the actual victim—circumstances that
prominently include the victim’s physical state.
The dissent suggests, post, at 3–4 (opinion of SCALIA, J.),
that we intend to give controlling weight to the “intentions
of the police,” post, at 4. That is a misreading of our opin
ion. At trial, the declarant’s statements, not the interro
gator’s questions, will be introduced to “establis[h] the
truth of the matter asserted,” Crawford, 541 U. S., at 60,
n. 9, and must therefore pass the Sixth Amendment test.
——————
12 In such a situation, the severe injuries of the victim would un
doubtedly also weigh on the credibility and reliability that the trier of
fact would afford to the statements. Cf. Advisory Committee’s Notes on
Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (noting that although
the “theory” of the excited utterance exception “has been criticized on
the ground that excitement impairs [the] accuracy of observation as
well as eliminating conscious fabrication,” it “finds support in cases
without number” (citing 6 J. Wigmore, Evidence §1750 (J. Chadbourn
rev. 1976))).
Cite as: 562 U. S. ____ (2011) 23
Opinion of the Court
See n. 11, supra. In determining whether a declarant’s
statements are testimonial, courts should look to all of the
relevant circumstances. Even JUSTICE SCALIA concedes
that the interrogator is relevant to this evaluation, post,
at 3, and we agree that “[t]he identity of an interrogator,
and the content and tenor of his questions,” ibid., can illu
minate the “primary purpose of the interrogation.” The
dissent, see post, at 3–5 (opinion of SCALIA, J.), criticizes
the complexity of our approach, but we, at least, are un
willing to sacrifice accuracy for simplicity. Simpler is not
always better, and courts making a “primary purpose”
assessment should not be unjustifiably restrained from
consulting all relevant information, including the state
ments and actions of interrogators.
Objectively ascertaining the primary purpose of the
interrogation by examining the statements and actions of
all participants is also the approach most consistent with
our past holdings. E.g., Davis, 547 U. S., at 822–823, n. 1
(noting that “volunteered testimony” is still testimony and
remains subject to the requirements of the Confrontation
Clause).
IV
As we suggested in Davis, when a court must determine
whether the Confrontation Clause bars the admission of a
statement at trial, it should determine the “primary pur
pose of the interrogation” by objectively evaluating the
statements and actions of the parties to the encounter, in
light of the circumstances in which the interrogation
occurs. The existence of an emergency or the parties’
perception that an emergency is ongoing is among the
most important circumstances that courts must take into
account in determining whether an interrogation is tes
timonial because statements made to assist police in
addressing an ongoing emergency presumably lack the
testimonial purpose that would subject them to the
24 MICHIGAN v. BRYANT
Opinion of the Court
requirement of confrontation.13 As the context of this case
brings into sharp relief, the existence and duration of an
emergency depend on the type and scope of danger posed
to the victim, the police, and the public.
Applying this analysis to the facts of this case is more
difficult than in Davis because we do not have the luxury
of reviewing a transcript of the conversation between the
victim and the police officers. Further complicating our
task is the fact that the trial in this case occurred before
our decisions in Crawford and Davis. We therefore review
a record that was not developed to ascertain the “primary
purpose of the interrogation.”
We first examine the circumstances in which the inter
rogation occurred. The parties disagree over whether
there was an emergency when the police arrived at the gas
station. Bryant argues, and the Michigan Supreme Court
accepted, 483 Mich., at 147, 768 N. W. 2d, at 73, that there
was no ongoing emergency because “there . . . was no
criminal conduct occurring. No shots were being fired, no
one was seen in possession of a firearm, nor were any
witnesses seen cowering in fear or running from the
scene.” Brief for Respondent 27. Bryant, while conceding
that “a serious or life-threatening injury creates a medical
emergency for a victim,” id., at 30, further argues that a
declarant’s medical emergency is not relevant to the ongo
——————
13 Of course the Confrontation Clause is not the only bar to admissi
bility of hearsay statements at trial. State and federal rules of evidence
prohibit the introduction of hearsay, subject to exceptions. Consistent
with those rules, the Due Process Clauses of the Fifth and Fourteenth
Amendments may constitute a further bar to admission of, for example,
unreliable evidence. See Montana v. Egelhoff, 518 U. S. 37, 53 (1996)
(plurality opinion) (“[E]rroneous evidentiary rulings can, in combina
tion, rise to the level of a due process violation”); Dutton v. Evans, 400
U. S. 74, 96–97 (1970) (Harlan, J., concurring in result) (“[T]he Fifth
and Fourteenth Amendments’ commands that federal and state trials,
respectively, must be conducted in accordance with due process of law”
are the “standard” by which to “test federal and state rules of evidence”).
Cite as: 562 U. S. ____ (2011) 25
Opinion of the Court
ing emergency determination.
In contrast, Michigan and the Solicitor General explain
that when the police responded to the call that a man had
been shot and found Covington bleeding on the gas station
parking lot, “they did not know who Covington was,
whether the shooting had occurred at the gas station or at
a different location, who the assailant was, or whether the
assailant posed a continuing threat to Covington or oth
ers.” Brief for United States as Amicus Curiae 15; Brief
for Petitioner 16; see also id., at 15 (“[W]hen an officer
arrives on the scene and does not know where the perpe
trator is, whether he is armed, whether he might have
other targets, and whether the violence might continue
at the scene or elsewhere, interrogation that has the pri
mary purpose of establishing those facts to assess the situ
ation is designed to meet the ongoing emergency and is
nontestimonial”).
The Michigan Supreme Court stated that the police
asked Covington, “what had happened, who had shot him,
and where the shooting had occurred.” 483 Mich., at 143,
768 N. W. 2d, at 71. The joint appendix contains the
transcripts of the preliminary examination, suppression
hearing, and trial testimony of five officers who responded
to the scene and found Covington. The officers’ testimony
is essentially consistent but, at the same time, not specific.
The officers basically agree on what information they
learned from Covington, but not on the order in which
they learned it or on whether Covington’s statements were
in response to general or detailed questions. They all
agree that the first question was “what happened?” The
answer was either “I was shot” or “Rick shot me.”14
——————
14 See App. 76 (testimony of Officer McCallister); id., at 101, 113–114
(testimony of Sgt. Wenturine); id., at 127, 131–133 (testimony of Officer
Stuglin). Covington told them that Rick had shot him through the back
door of Rick’s house, id., at 127–128 (testimony of Officer Stuglin),
located at the corner of Pennsylvania and Laura, id., at 102 (testimony
26 MICHIGAN v. BRYANT
Opinion of the Court
As explained above, the scope of an emergency in terms
of its threat to individuals other than the initial assailant
and victim will often depend on the type of dispute in
volved. Nothing Covington said to the police indicated
that the cause of the shooting was a purely private dispute
or that the threat from the shooter had ended. The record
reveals little about the motive for the shooting. The police
officers who spoke with Covington at the gas station testi
fied that Covington did not tell them what words Coving
ton and Rick had exchanged prior to the shooting.15 What
Covington did tell the officers was that he fled Bryant’s
back porch, indicating that he perceived an ongoing
threat.16 The police did not know, and Covington did not
tell them, whether the threat was limited to him. The
——————
of Sgt. Wenturine), and that Covington recognized Rick by his voice, id.,
at 128 (testimony of Officer Stuglin). Covington also gave them a
physical description of Rick. Id., at 84–85, 93–94 (testimony of Officer
McAllister); id., at 103, 115 (testimony of Sgt. Wenturine); id., at 134
(testimony of Officer Stuglin).
15 See id., at 114 (“Q Did he tell you what Rick said? A He said they
were having a conversation. Q Did he tell you what Rick said? A He
did not” (testimony of Sgt. Wenturine) (paragraph breaks omitted)); see
also id., at 79 (testimony of Officer McAllister); id., at 128 (testimony of
Officer Stuglin).
16 See id., at 127–128 (“A He said he’d went up, he went up to the
back door of a house; that a person he said he knew, and he was knock
ing and he was knocking on the door he said he’d talked to somebody
through the door. He said he recognized the voice. Q Did he say who it
was that he recognized the voice of? A That’s when he told me it was,
he said it was Rick a/k/a Buster. Q And did he say what the conversa
tion was about at the door? A I don’t, I don’t believe so. Q All right.
And did he say what happened there, whether or not they had a con
versation or not, did he say what ended up happening? A He said what
happened was that he heard a shot and then he started to turn to get
off the porch and then another one and then that’s when he was hit by
a gunshot” (testimony of Officer Stuglin) (paragraph breaks omitted)).
Unlike the dissent’s apparent ability to read Covington’s mind, post, at
6 (opinion of SCALIA, J.), we rely on the available evidence, which
suggests that Covington perceived an ongoing threat.
Cite as: 562 U. S. ____ (2011) 27
Opinion of the Court
potential scope of the dispute and therefore the emergency
in this case thus stretches more broadly than those at
issue in Davis and Hammon and encompasses a threat
potentially to the police and the public.
This is also the first of our post-Crawford Confrontation
Clause cases to involve a gun. The physical separation
that was sufficient to end the emergency in Hammon was
not necessarily sufficient to end the threat in this case;
Covington was shot through the back door of Bryant’s
house. Bryant’s argument that there was no ongoing
emergency because “[n]o shots were being fired,” Brief for
Respondent 27, surely construes ongoing emergency too
narrowly. An emergency does not last only for the time
between when the assailant pulls the trigger and the
bullet hits the victim. If an out-of-sight sniper pauses
between shots, no one would say that the emergency
ceases during the pause. That is an extreme example and
not the situation here, but it serves to highlight the im
plausibility, at least as to certain weapons, of construing
the emergency to last only precisely as long as the violent
act itself, as some have construed our opinion in Davis.
See Brief for Respondent 23–25.
At no point during the questioning did either Covington
or the police know the location of the shooter. In fact,
Bryant was not at home by the time the police searched
his house at approximately 5:30 a.m. 483 Mich., at 136,
768 N. W. 2d, at 67. At some point between 3 a.m. and
5:30 a.m., Bryant left his house. At bottom, there was an
ongoing emergency here where an armed shooter, whose
motive for and location after the shooting were unknown,
had mortally wounded Covington within a few blocks
and a few minutes of the location where the police found
Covington.17
——————
17 It hardly bears mention that the emergency situation in this case is
readily distinguishable from the “treasonous conspiracies of unknown
28 MICHIGAN v. BRYANT
Opinion of the Court
This is not to suggest that the emergency continued
until Bryant was arrested in California a year after the
shooting. Id., at 137, 768 N. W. 2d, at 67. We need not
decide precisely when the emergency ended because Cov
ington’s encounter with the police and all of the state
ments he made during that interaction occurred within
the first few minutes of the police officers’ arrival and
well before they secured the scene of the shooting—the
shooter’s last known location.
We reiterate, moreover, that the existence vel non of an
ongoing emergency is not the touchstone of the testimonial
inquiry; rather, the ultimate inquiry is whether the “pri
mary purpose of the interrogation [was] to enable police
assistance to meet [the] ongoing emergency.” Davis, 547
U. S., at 822. We turn now to that inquiry, as informed by
the circumstances of the ongoing emergency just de
scribed. The circumstances of the encounter provide im
portant context for understanding Covington’s statements
to the police. When the police arrived at Covington’s side,
their first question to him was “What happened?”18 Cov
ington’s response was either “Rick shot me” or “I was
shot,” followed very quickly by an identification of “Rick”
——————
scope, aimed at killing or overthrowing the king,” post, at 11, about
which JUSTICE SCALIA’s dissent is quite concerned.
18 Although the dissent claims otherwise, post, at 7 (opinion of
SCALIA, J.), at least one officer asked Covington something akin to “how
was he doing.” App. 131 (testimony of Officer Stuglin) (“A I approached
the subject, the victim, Mr. Covington, on the ground and had asked
something like what happened or are you okay, something to that
line. . . . Q So you asked this man how are you, how are you doing? A
Well, basically it’s, you know, what’s wrong, you know” (paragraph
breaks omitted)). The officers also testified about their assessment of
Covington’s wounds. See id., at 35 (suppression hearing testimony of
Officer Brown) (“[H]e had blood . . . on the front of his body”); id., at 75
(testimony of Officer McCallister) (“It appeared he had a stomach
wound of a gunshot”); id., at 132 (testimony of Officer Stuglin) (“Q Did
you see the wound? A Yes, I did. Q You had to move some clothing to
do that? A Yes” (paragraph breaks omitted)).
Cite as: 562 U. S. ____ (2011) 29
Opinion of the Court
as the shooter. App. 76. In response to further questions,
Covington explained that the shooting occurred through
the back door of Bryant’s house and provided a physical
description of the shooter. When he made the statements,
Covington was lying in a gas station parking lot bleeding
from a mortal gunshot wound to his abdomen. His an
swers to the police officers’ questions were punctuated
with questions about when emergency medical services
would arrive. Id., at 56–57 (suppression hearing testi
mony of Officer Brown). He was obviously in considerable
pain and had difficulty breathing and talking. Id., at 75,
83–84 (testimony of Officer McCallister); id., at 101, 110–
111 (testimony of Sgt. Wenturine); id., at 126, 137 (testi
mony of Officer Stuglin). From this description of his
condition and report of his statements, we cannot say that
a person in Covington’s situation would have had a “pri
mary purpose” “to establish or prove past events poten
tially relevant to later criminal prosecution.” Davis, 547
U. S., at 822.
For their part, the police responded to a call that a man
had been shot. As discussed above, they did not know
why, where, or when the shooting had occurred. Nor did
they know the location of the shooter or anything else
about the circumstances in which the crime occurred.19
——————
19 Contrary to the dissent’s suggestion, post, at 8 (opinion of SCALIA,
J.), and despite the fact that the record was developed prior to Davis’
focus on the existence of an “ongoing emergency,” the record contains
some testimony to support the idea that the police officers were con
cerned about the location of the shooter when they arrived on the scene
and thus to suggest that the purpose of the questioning of Covington
was to determine the shooter’s location. See App. 136 (testimony of
Officer Stuglin) (stating that upon arrival officers questioned the gas
station clerk about whether the shooting occurred in the gas station
parking lot and about concern for safety); see also ibid. (testimony of
Officer Stuglin) (“Q . . . So you have some concern, there may be a
person with a gun or somebody, a shooter right there in the immediate
area? A Sure, yes. Q And you want to see that that area gets secured?
30 MICHIGAN v. BRYANT
Opinion of the Court
The questions they asked—“what had happened, who had
shot him, and where the shooting occurred,” 483 Mich., at
143, 768 N. W. 2d, at 71—were the exact type of questions
necessary to allow the police to “ ‘assess the situation, the
threat to their own safety, and possible danger to the
potential victim’ ” and to the public, Davis, 547 U. S., at
832 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cty., 542 U. S. 177, 186 (2004)), including to
allow them to ascertain “whether they would be encoun
tering a violent felon,”20 Davis, 547 U. S., at 827. In other
words, they solicited the information necessary to enable
them “to meet an ongoing emergency.” Id., at 822.
Nothing in Covington’s responses indicated to the police
that, contrary to their expectation upon responding to a
call reporting a shooting, there was no emergency or that
a prior emergency had ended. Covington did indicate that
he had been shot at another location about 25 minutes
earlier, but he did not know the location of the shooter at
the time the police arrived and, as far as we can tell from
the record, he gave no indication that the shooter, having
shot at him twice, would be satisfied that Covington was
only wounded. In fact, Covington did not indicate any
possible motive for the shooting, and thereby gave no
reason to think that the shooter would not shoot again if
he arrived on the scene. As we noted in Davis, “initial
inquiries” may “often . . . produce nontestimonial state
——————
A Correct. Q For your safety as well as everyone else? A Correct”
(paragraph breaks omitted)); id., at 82 (testimony of Officer McCallis
ter). But see id., at 83 (cross-examination of Officer McAllister) (“Q You
didn’t, you didn’t look around and say, gee, there might be a shooter
around here, I better keep an eye open? A I did not, no. That could
have been my partner I don’t know” (paragraph breaks omitted)).
20 Hiibel, like our post-Crawford Confrontation Clause cases, involved
domestic violence, which explains the Court’s focus on the security of
the victim and the police: they were the only parties potentially threat
ened by the assailant. 542 U. S., at 186 (noting that the case involved a
“domestic assault”).
Cite as: 562 U. S. ____ (2011) 31
Opinion of the Court
ments.” Id., at 832. The initial inquiries in this case
resulted in the type of nontestimonial statements we
contemplated in Davis.
Finally, we consider the informality of the situation and
the interrogation. This situation is more similar, though
not identical, to the informal, harried 911 call in Davis
than to the structured, station-house interview in Craw
ford. As the officers’ trial testimony reflects, the situation
was fluid and somewhat confused: the officers arrived at
different times; apparently each, upon arrival, asked
Covington “what happened?”; and, contrary to the dis
sent’s portrayal, post, at 7–9 (opinion of SCALIA, J.), they
did not conduct a structured interrogation. App. 84 (tes
timony of Officer McCallister) (explaining duplicate ques
tioning, especially as to “what happened?”); id., at 101–102
(testimony of Sgt. Wenturine) (same); id., at 126–127
(testimony of Officer Stuglin) (same). The informality
suggests that the interrogators’ primary purpose was
simply to address what they perceived to be an ongoing
emergency, and the circumstances lacked any formality
that would have alerted Covington to or focused him on
the possible future prosecutorial use of his statements.
Because the circumstances of the encounter as well as
the statements and actions of Covington and the police
objectively indicate that the “primary purpose of the inter
rogation” was “to enable police assistance to meet an
ongoing emergency,” Davis, 547 U. S., at 822, Covington’s
identification and description of the shooter and the lo
cation of the shooting were not testimonial hearsay.
The Confrontation Clause did not bar their admission at
Bryant’s trial.
* * *
For the foregoing reasons, we hold that Covington’s
statements were not testimonial and that their admission
32 MICHIGAN v. BRYANT
Opinion of the Court
at Bryant’s trial did not violate the Confrontation Clause.
We leave for the Michigan courts to decide on remand
whether the statements’ admission was otherwise permit
ted by state hearsay rules. The judgment of the Supreme
Court of Michigan is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 562 U. S. ____ (2011) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–150
_________________
MICHIGAN, PETITIONER v. RICHARD PERRY
BRYANT
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF MICHIGAN
[February 28, 2011]
JUSTICE THOMAS, concurring in the judgment.
I agree with the Court that the admission of Covington’s
out-of-court statements did not violate the Confrontation
Clause, but I reach this conclusion because Covington’s
questioning by police lacked sufficient formality and so
lemnity for his statements to be considered “testimonial.”
See Crawford v. Washington, 541 U. S. 36, 68 (2004).
In determining whether Covington’s statements to
police implicate the Confrontation Clause, the Court
evaluates the “ ‘primary purpose’ ” of the interrogation.
Ante, at 12. The majority’s analysis⎯which relies on,
inter alia, what the police knew when they arrived at the
scene, the specific questions they asked, the particular
information Covington conveyed, the weapon involved,
and Covington’s medical condition⎯illustrates the uncer
tainty that this test creates for law enforcement and the
lower courts. Ante, at 25–31. I have criticized the
primary-purpose test as “an exercise in fiction” that is
“disconnected from history” and “yields no predictable
results.” Davis v. Washington, 547 U. S. 813, 839, 838
(2006) (opinion concurring in judgment in part and dis
senting in part).
Rather than attempting to reconstruct the “primary
purpose” of the participants, I would consider the extent to
which the interrogation resembles those historical prac
2 MICHIGAN v. BRYANT
THOMAS, J., concurring in judgment
tices that the Confrontation Clause addressed. See, e.g.,
id., at 835–836 (describing “practices that occurred under
the English bail and committal statutes passed during the
reign of Queen Mary”). As the majority notes, Covington
interacted with the police under highly informal circum
stances, while he bled from a fatal gunshot wound. Ante,
at 19–20, 31. The police questioning was not “a formalized
dialogue,” did not result in “formalized testimonial ma
terials” such as a deposition or affidavit, and bore no “in-
dicia of solemnity.” Davis, supra, at 840, 837 (opinion of
THOMAS, J.); see also Giles v. California, 554 U. S. 353,
377–378 (2008) (THOMAS, J., concurring). Nor is there any
indication that the statements were offered at trial “in
order to evade confrontation.” Davis, supra, at 840. This
interrogation bears little if any resemblance to the histori
cal practices that the Confrontation Clause aimed to elimi
nate. Covington thus did not “bea[r] testimony” against
Bryant, Crawford, supra, at 51, and the introduction of his
statements at trial did not implicate the Confrontation
Clause. I concur in the judgment.
Cite as: 562 U. S. ____ (2011) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–150
_________________
MICHIGAN, PETITIONER v. RICHARD PERRY
BRYANT
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF MICHIGAN
[February 28, 2011]
JUSTICE SCALIA, dissenting.
Today’s tale—a story of five officers conducting suc
cessive 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 conclu
sion 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.
I
A
The Confrontation Clause of the Sixth Amendment,
made binding on the States by the Fourteenth Amend
ment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides
that “[i]n all criminal prosecutions, the accused shall enjoy
2 MICHIGAN v. BRYANT
SCALIA, J., dissenting
the right . . . to be confronted with the witnesses against
him.” In Crawford, we held that this provision guarantees
a defendant his common-law right to confront those “who
‘bear testimony’ ” against him. 541 U. S., at 51. A witness
must deliver his testimony against the defendant in per
son, or the prosecution must prove that the witness is
unavailable to appear at trial and that the defendant
has had a prior opportunity for cross-examination. Id., at
53–54.
Not all hearsay falls within the Confrontation Clause’s
grasp. At trial a witness “bears testimony” by providing
“ ‘[a] solemn declaration or affirmation . . . for the purpose
of establishing or proving some fact.’ ” Id., at 51 (quoting 2
N. Webster, An American Dictionary of the English Lan
guage (1828)). The Confrontation Clause protects defen
dants only from hearsay statements that do the same.
Davis v. Washington, 547 U. S. 813, 823–824 (2006). In
Davis, we explained how to identify testimonial hearsay
prompted by police questioning in the field. A statement
is testimonial “when the circumstances objectively indi
cate . . . that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
criminal prosecution.” Id., at 822. When, however, the
circumstances objectively indicate that the declarant’s
statements were “a cry for help [o]r the provision of infor
mation enabling officers immediately to end a threatening
situation,” id., at 832, they bear little resemblance to in
court testimony. “No ‘witness’ goes into court to proclaim
an emergency and seek help.” Id., at 828.
Crawford and Davis did not address whose perspective
matters—the declarant’s, the interrogator’s, or both—
when assessing “the primary purpose of [an] interroga
tion.” In those cases the statements were testimonial from
any perspective. I think the same is true here, but be
cause the Court picks a perspective so will I: The decla
rant’s intent is what counts. In-court testimony is more
Cite as: 562 U. S. ____ (2011) 3
SCALIA, J., dissenting
than a narrative of past events; it is a solemn declaration
made in the course of a criminal trial. For an out-of-court
statement to qualify as testimonial, the declarant must
intend the statement to be a solemn declaration rather
than an unconsidered or offhand remark; and he must
make the statement with the understanding that it may
be used to invoke the coercive machinery of the State
against the accused.1 See Friedman, Grappling with the
Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259
(2005). That is what distinguishes a narrative told to a
friend over dinner from a statement to the police. See
Crawford, supra, at 51. The hidden purpose of an interro
gator cannot substitute for the declarant’s intentional
solemnity or his understanding of how his words may be
used.
A declarant-focused inquiry is also the only inquiry that
would work in every fact pattern implicating the Confron
tation Clause. The Clause applies to volunteered testi
mony as well as statements solicited through police inter
rogation. See Davis, supra, at 822–823, n. 1. An inquiry
into an officer’s purposes would make no sense when a
declarant blurts out “Rick shot me” as soon as the officer
arrives on the scene. I see no reason to adopt a different
test—one that accounts for an officer’s intent—when the
officer asks “what happened” before the declarant makes
his accusation. (This does not mean the interrogator is
irrelevant. The identity of an interrogator, and the con
tent and tenor of his questions, can bear upon whether a
declarant intends to make a solemn statement, and envi
sions its use at a criminal trial. But none of this means
that the interrogator’s purpose matters.)
In an unsuccessful attempt to make its finding of emer
——————
1 I remain agnostic about whether and when statements to nonstate
actors are testimonial. See Davis v. Washington, 547 U. S. 813, 823,
n. 2 (2006).
4 MICHIGAN v. BRYANT
SCALIA, J., dissenting
gency plausible, the Court instead adopts a test that looks
to the purposes of both the police and the declarant. It
claims that this is demanded by necessity, fretting that a
domestic-violence victim may want her abuser briefly
arrested—presumably to teach him a lesson—but not
desire prosecution. See ante, at 22. I do not need to probe
the purposes of the police to solve that problem. Even if a
victim speaks to the police “to establish or prove past
events” solely for the purpose of getting her abuser ar
rested, she surely knows her account is “potentially rel
evant to later criminal prosecution” should one ensue.
Davis, supra, at 822.
The Court also wrings its hands over the possibility that
“a severely injured victim” may lack the capacity to form a
purpose, and instead answer questions “reflexive[ly].”
Ante, at 22. How to assess whether a declarant with
diminished capacity bore testimony is a difficult question,
and one I do not need to answer today. But the Court’s
proposed answer—to substitute the intentions of the police
for the missing intentions of the declarant—cannot be the
correct one. When the declarant has diminished capacity,
focusing on the interrogators make less sense, not more.
The inquiry under Crawford turns in part on the actions
and statements of a declarant’s audience only because
they shape the declarant’s perception of why his audience
is listening and therefore influence his purpose in making
the declaration. See 541 U. S., at 51. But a person who
cannot perceive his own purposes certainly cannot per
ceive why a listener might be interested in what he has to
say. As far as I can tell, the Court’s substituted-intent
theory “has nothing to be said for it except that it can
sometimes make our job easier,” Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. ___,
___ (2010) (SCALIA, J., concurring in part and concurring
in judgment) (slip op., at 2).
The Court claims one affirmative virtue for its focus on
Cite as: 562 U. S. ____ (2011) 5
SCALIA, J., dissenting
the purposes of both the declarant and the police: It “ame
liorates problems that . . . arise” when declarants have
“mixed motives.” Ante, at 21. I am at a loss to know how.
Sorting out the primary purpose of a declarant with mixed
motives is sometimes difficult. But adding in the mixed
motives of the police only compounds the problem. Now
courts will have to sort through two sets of mixed motives
to determine the primary purpose of an interrogation.
And the Court’s solution creates a mixed-motive problem
where (under the proper theory) it does not exist—viz.,
where the police and the declarant each have one motive,
but those motives conflict. The Court does not provide an
answer to this glaringly obvious problem, probably be
cause it does not have one.
The only virtue of the Court’s approach (if it can be
misnamed a virtue) is that it leaves judges free to reach
the “fairest” result under the totality of the circumstances.
If the dastardly police trick a declarant into giving an
incriminating statement against a sympathetic defendant,
a court can focus on the police’s intent and declare the
statement testimonial. If the defendant “deserves” to go to
jail, then a court can focus on whatever perspective is
necessary to declare damning hearsay nontestimonial.
And when all else fails, a court can mix-and-match per
spectives to reach its desired outcome. Unfortunately,
under this malleable approach “the guarantee of confron
tation is no guarantee at all.” Giles v. California, 554
U. S. 353, 375 (2008) (plurality).
B
Looking to the declarant’s purpose (as we should), this is
an absurdly easy case. Roughly 25 minutes after Anthony
Covington had been shot, Detroit police responded to a 911
call reporting that a gunshot victim had appeared at a
neighborhood gas station. They quickly arrived at the
scene, and in less than 10 minutes five different Detroit
6 MICHIGAN v. BRYANT
SCALIA, J., dissenting
police officers questioned Covington about the shooting.
Each asked him a similar battery of questions: “what
happened” and when, App. 39, 126, “who shot” the victim,”
id., at 22, and “where” did the shooting take place, id., at
132. See also id., at 113. After Covington would answer,
they would ask follow-up questions, such as “how tall is”
the shooter, id., at 134, “[h]ow much does he weigh,” ibid.
what is the exact address or physical description of the
house where the shooting took place, and what chain
of events led to the shooting. The battery relented when
the paramedics arrived and began tending to Covington’s
wounds.
From Covington’s perspective, his statements had little
value except to ensure the arrest and eventual prosecution
of Richard Bryant. He knew the “threatening situation,”
Davis, 547 U. S., at 832, had ended six blocks away and 25
minutes earlier when he fled from Bryant’s back porch.
See 483 Mich. 132, 135–136, 768 N.W. 2d 65, 67 (2009);
App. 105. Bryant had not confronted him face-to-face
before he was mortally wounded, instead shooting him
through a door. See 483 Mich., at 136–137, 768 N.W. 2d,
at 67. Even if Bryant had pursued him (unlikely), and
after seeing that Covington had ended up at the gas sta
tion was unable to confront him there before the police
arrived (doubly unlikely), it was entirely beyond imagina
tion that Bryant would again open fire while Covington
was surrounded by five armed police officers. And Coving
ton knew the shooting was the work of a drug dealer, not a
spree killer who might randomly threaten others. Id., at
135, 137, 768 N.W. 2d, at 67.
Covington’s knowledge that he had nothing to fear
differs significantly from Michelle McCottry’s state of
mind during her “frantic” statements to a 911 operator at
issue in Davis, 547 U. S., at 827. Her “call was plainly a
call for help against a bona fide physical threat” describing
“events as they were actually happening.” Ibid. She did
Cite as: 562 U. S. ____ (2011) 7
SCALIA, J., dissenting
not have the luxuries of police protection and of time and
space separating her from immediate danger that Coving
ton enjoyed when he made his statements. See id., at 831.
Covington’s pressing medical needs do not suggest that
he was responding to an emergency, but to the contrary
reinforce the testimonial character of his statements. He
understood the police were focused on investigating a past
crime, not his medical needs. None of the officers asked
Covington how he was doing, attempted more than super
ficially to assess the severity of his wounds, or attempted
to administer first aid.2 They instead primarily asked
questions with little, if any, relevance to Covington’s dire
situation. Police, paramedics, and doctors do not need to
know the address where a shooting took place, the name of
the shooter, or the shooter’s height and weight to provide
proper medical care. Underscoring that Covington under
stood the officers’ investigative role, he interrupted their
interrogation to ask “when is EMS coming?” App. 57.
When, in other words, would the focus shift to his medical
needs rather than Bryant’s crime?
Neither Covington’s statements nor the colloquy be
tween him and the officers would have been out of place at
a trial; it would have been a routine direct examination.
See Davis, 547 U. S., at 830. Like a witness, Covington
recounted in detail how a past criminal event began and
progressed, and like a prosecutor, the police elicited that
account through structured questioning. Preventing the
——————
2 Officer Stuglin’s testimony does not undermine my assessment of
the officers’ behavior, although the Court suggests otherwise. See ante,
at 28, n. 18. Officer Stuglin first testified that he “asked something like
what happened or are you okay, something to that line.” App., 131.
When pressed on whether he asked “how are you doing?,” he responded,
“Well, basically . . . what’s wrong.” Ibid. Other officers were not so
equivocal: They admitted they had no need to “ask him how he was
doing. . . . It was very obvious how he was doing.” Id., at 110; see also
id., at 19.
8 MICHIGAN v. BRYANT
SCALIA, J., dissenting
admission of “weaker substitute[s] for live testimony at
trial” such as this, id., at 828 (internal quotation marks
omitted), is precisely what motivated the Framers to adopt
the Confrontation Clause and what motivated our deci
sions in Crawford and in Hammon v. Indiana, decided
with Davis. Ex parte examinations raise the same consti
tutional concerns whether they take place in a gas-station
parking lot or in a police interrogation room.
C
Worse still for the repute of today’s opinion, this is an
absurdly easy case even if one (erroneously) takes the
interrogating officers’ purpose into account. The five
officers interrogated Covington primarily to investigate
past criminal events. None—absolutely none—of their
actions indicated that they perceived an imminent threat.
They did not draw their weapons, and indeed did not
immediately search the gas station for potential shooters.3
To the contrary, all five testified that they questioned
Covington before conducting any investigation at the scene.
Would this have made any sense if they feared the pres
ence of a shooter? Most tellingly, none of the officers
started his interrogation by asking what would have been
the obvious first question if any hint of such a fear existed:
Where is the shooter?
But do not rely solely on my word about the officers’
primary purpose. Listen to Sergeant Wenturine, who
candidly admitted that he interrogated Covington because
he “ha[d] a man here that [he] believe[d] [was] dying [so
——————
3 The
Court cites Officer Stuglin’s testimony that “I think [Brown and
Pellerito] did a little bit of both” joining the interrogation and helping
to secure the scene. Id., at 135–136. But the point is not whether they
did both; it is whether they moved to secure the area first. No officer’s
testimony suggests this. Pellerito testified that he, Stuglin, and Brown
arrived at the scene at roughly the same time and all three immedi
ately went to Covington. See id., at 17–18. The testimony of Brown
and McCallister corroborate that account. See id., at 34–36, 79–82.
Cite as: 562 U. S. ____ (2011) 9
SCALIA, J., dissenting
he was] gonna find out who did this, period.” App. 112. In
short, he needed to interrogate Covington to solve a crime.
Wenturine never mentioned an interest in ending an
ongoing emergency.
At the very least, the officers’ intentions turned investi
gative during their 10-minute encounter with Covington,
and the conversation “evolve[d] into testimonial state
ments.” Davis, 547 U. S., at 828 (internal quotation
marks omitted). The fifth officer to arrive at the scene did
not need to run straight to Covington and ask a battery of
questions “to determine the need for emergency assis
tance,” Ibid. He could have asked his fellow officers, who
presumably had a better sense of that than Covington—
and a better sense of what he could do to assist. No, the
value of asking the same battery of questions a fifth time
was to ensure that Covington told a consistent story and
to see if any new details helpful to the investigation and
eventual prosecution would emerge. Having the testimony
of five officers to recount Covington’s consistent story
undoubtedly helped obtain Bryant’s conviction. (Which
came, I may note, after the first jury could not reach a
verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)
D
A final word about the Court’s active imagination. The
Court invents a world where an ongoing emergency exists
whenever “an armed shooter, whose motive for and lo
cation after the shooting [are] unknown, . . . mortally
wound[s]” one individual “within a few blocks and [25]
minutes of the location where the police” ultimately find
that victim. Ante, at 27. Breathlessly, it worries that a
shooter could leave the scene armed and ready to pull the
trigger again. See ante, at 17–18, 27, 30. Nothing sug
gests the five officers in this case shared the Court’s
10 MICHIGAN v. BRYANT
SCALIA, J., dissenting
dystopian4 view of Detroit, where drug dealers hunt their
shooting victim down and fire into a crowd of police offi
cers to finish him off, see ante, at 30, or where spree kill
ers shoot through a door and then roam the streets leaving
a trail of bodies behind. Because almost 90 percent of
murders involve a single victim,5 it is much more likely—
indeed, I think it certain—that the officers viewed their
encounter with Covington for what it was: an investi
gation into a past crime with no ongoing or immediate
consequences.
The Court’s distorted view creates an expansive excep
tion to the Confrontation Clause for violent crimes. Be
cause Bryant posed a continuing threat to public safety in
the Court’s imagination, the emergency persisted for
confrontation purposes at least until the police learned his
“motive for and location after the shooting.” Ante, at 27.
It may have persisted in this case until the police “secured
the scene of the shooting” two-and-a-half hours later.
Ante, at 28. (The relevance of securing the scene is un
clear so long as the killer is still at large—especially if, as
the Court speculates, he may be a spree-killer.) This is a
dangerous definition of emergency. Many individuals who
testify against a defendant at trial first offer their ac
counts to police in the hours after a violent act. If the
police can plausibly claim that a “potential threat to . . .
the public” persisted through those first few hours, ante,
at 12 (and if the claim is plausible here it is always plau
——————
4 The opposite of utopian. The word was coined by John Stuart Mill
as a caustic description of British policy. See 190 Hansard’s Parlia
mentary Debates, Third Series 1517 (3d Ser. 1868); 5 Oxford English
Dictionary 13 (2d ed. 1989).
5 See Federal Bureau of Investigation, Crime in the United States,
2009: Expanded Homicide Data Table 4, Murder by Victim/Offender
Situations, 2009 (Sept. 2010), online at http://www2.fbi.gov/ucr/
cius2009/offenses/expanded_information/data/shrtable_04.html (as visited
Feb. 25, 2011, and available in Clerk of Court’s case file).
Cite as: 562 U. S. ____ (2011) 11
SCALIA, J., dissenting
sible) a defendant will have no constitutionally protected
right to exclude the uncross-examined testimony of such
witnesses. His conviction could rest (as perhaps it did
here) solely on the officers’ recollection at trial of the
witnesses’ accusations.
The Framers could not have envisioned such a hollow
constitutional guarantee. No framing-era confrontation
case that I know of, neither here nor in England, took such
an enfeebled view of the right to confrontation. For exam
ple, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202,
202–203 (K. B. 1779), held inadmissible a mother’s ac
count of her young daughter’s statements “immediately on
her coming home” after being sexually assaulted. The
daughter needed to testify herself. But today’s majority
presumably would hold the daughter’s account to her
mother a nontestimonial statement made during an ongo
ing emergency. She could not have known whether her
attacker might reappear to attack again or attempt to
silence the lone witness against him. Her mother likely
listened to the account to assess the threat to her own
safety and to decide whether the rapist posed a threat
to the community that required the immediate interven
tion of the local authorities. Cf. ante, at 29–30. Utter
nonsense.
The 16th- and 17th-century English treason trials that
helped inspire the Confrontation Clause show that today’s
decision is a mistake. The Court’s expansive definition of
an “ongoing emergency” and its willingness to consider the
perspective of the interrogator and the declarant cast a
more favorable light on those trials than history or our
past decisions suggest they deserve. Royal officials con
ducted many of the ex parte examinations introduced
against Sir Walter Raleigh and Sir John Fenwick while
investigating alleged treasonous conspiracies of unknown
scope, aimed at killing or overthrowing the King. See
Brief for National Association of Criminal Defense Law
12 MICHIGAN v. BRYANT
SCALIA, J., dissenting
yers as Amicus Curiae 21–22, and n. 11. Social stability in
16th- and 17th-century England depended mainly on the
continuity of the ruling monarch, cf. 1 J. Stephen, A His
tory of the Criminal Law of England 354 (1883), so such a
conspiracy posed the most pressing emergency imaginable.
Presumably, the royal officials investigating it would have
understood the gravity of the situation and would have
focused their interrogations primarily on ending the
threat, not on generating testimony for trial. I therefore
doubt that under the Court’s test English officials acted
improperly by denying Raleigh and Fenwick the opportu
nity to confront their accusers “face to face,” id., at 326.
Under my approach, in contrast, those English trials
remain unquestionably infamous. Lord Cobham did not
speak with royal officials to end an ongoing emergency.
He was a traitor! He spoke, as Raleigh correctly observed,
to establish Raleigh’s guilt and to save his own life. See 1
D. Jardine, Criminal Trials 435 (1832). Cobham’s state
ments, when assessed from his perspective, had only a
testimonial purpose. The same is true of Covington’s
statements here.
II
A
But today’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.
According to today’s opinion, the Davis inquiry into
whether a declarant spoke to end an ongoing emergency or
rather to “prove past events potentially relevant to later
criminal prosecution,” 547 U. S., at 822, is not aimed at
answering whether the declarant acted as a witness.
Instead, the Davis inquiry probes the reliability of a decla
rant’s statements, “[i]mplicit[ly]” importing the excited
Cite as: 562 U. S. ____ (2011) 13
SCALIA, J., dissenting
utterances hearsay exception into the Constitution. Ante,
at 14–15. A statement during an ongoing emergency is
sufficiently reliable, the Court says, “because the prospect
of fabrication . . . is presumably significantly diminished,”
so it “does not [need] to be subject to the crucible of cross
examination.” Id., at 14.
Compare that with the holding of Crawford: “Where
testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is
the one the Constitution actually prescribes: confronta
tion.” 541 U. S., at 68–69. Today’s opinion adopts, for
emergencies and faux emergencies at least, the discredited
logic of White v. Illinois, 502 U. S. 346, 355–356, and n. 8
(1992), and Idaho v. Wright, 497 U. S. 805, 819–820
(1990). White is, of course, the decision that both Craw
ford and Davis found most incompatible with the text and
history of the Confrontation Clause. See Davis, supra, at
825; Crawford, supra, at 58, n. 8. (This is not to say that
that “reliability” logic can actually justify today’s result:
Twenty-five minutes is plenty of time for a shooting victim
to reflect and fabricate a false story.)
The Court announces that in future cases it will look to
“standard rules of hearsay, designed to identify some
statements as reliable,” when deciding whether a state
ment is testimonial. Ante, at 11–12. Ohio v. Roberts, 448
U. S. 56 (1980) said something remarkably similar: An
out-of-court statement is admissible if it “falls within a
firmly rooted hearsay exception” or otherwise “bears ade
quate ‘indicia of reliability.’ ” Id., at 66. We tried that
approach to the Confrontation Clause for nearly 25 years
before Crawford rejected it as an unworkable standard
unmoored from the text and the historical roots of the
Confrontation Clause. See 541 U. S., at 54, 60, 63–65, 67–
68. The arguments in Raleigh’s infamous 17th-century
treason trial contained full debate about the reliability of
Lord Cobham’s ex parte accusations, see Raleigh’s Case,
14 MICHIGAN v. BRYANT
SCALIA, J., dissenting
2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29 (1603); that
case remains the canonical example of a Confrontation
Clause violation, not because Raleigh should have won the
debate but because he should have been allowed
cross-examination.
The Court attempts to fit its resurrected interest in
reliability into the Crawford framework, but the result is
incoherent. Reliability, the Court tells us, is a good indi
cator of whether “a statement is . . . an out-of-court substi
tute for trial testimony.” Ante, at 11. That is patently
false. Reliability tells us nothing about whether a state
ment is testimonial. Testimonial and nontestimonial
statements alike come in varying degrees of reliability.
An eyewitness’s statements to the police after a fender
bender, for example, are both reliable and testimonial.
Statements to the police from one driver attempting to
blame the other would be similarly testimonial but rarely
reliable.
The Court suggests otherwise because it “misunder
stands the relationship” between qualification for one of
the standard hearsay exceptions and exemption from the
confrontation requirement. Melendez-Diaz v. Massachu
setts, 557 U. S. ___, ___ (2009) (slip op., at 18). That rela
tionship is not a causal one. Hearsay law exempts busi
ness records, for example, because businesses have a
financial incentive to keep reliable records. See Fed. Rule
Evid. 803(6). The Sixth Amendment also generally admits
business records into evidence, but not because the records
are reliable or because hearsay law says so. It admits
them “because—having been created for the administra
tion of an entity’s affairs and not for the purpose of estab
lishing or proving some fact at trial—they are not” weaker
substitutes for live testimony. Melendez-Diaz, 557 U. S.,
at ___ (slip op., at 18). Moreover, the scope of the exemp
tion from confrontation and that of the hearsay exceptions
also are not always coextensive. The reliability logic of the
Cite as: 562 U. S. ____ (2011) 15
SCALIA, J., dissenting
business-record exception would extend to records main
tained by neutral parties providing litigation-support
services, such as evidence testing. The Confrontation
Clause is not so forgiving. Business records prepared
specifically for use at a criminal trial are testimonial and
require confrontation. See ibid.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 Craw
ford 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.
B
The Court recedes from Crawford in a second significant
way. It requires judges to conduct “open-ended balancing
tests” and “amorphous, if not entirely subjective,” inquir
ies into the totality of the circumstances bearing upon
reliability. 541 U. S., at 63, 68. Where the prosecution
cries “emergency,” the admissibility of a statement now
turns on “a highly context-dependent inquiry,” ante, at 16,
into the type of weapon the defendant wielded, see ante, at
17; the type of crime the defendant committed, see ante, at
12, 16–17; the medical condition of the declarant, see ante,
at 17–18; if the declarant is injured, whether paramedics
have arrived on the scene, see ante, at 20; whether the
encounter takes place in an “exposed public area,” ibid.;
whether the encounter appears disorganized, see ibid.;
whether the declarant is capable of forming a purpose, see
ante, at 22; whether the police have secured the scene of
16 MICHIGAN v. BRYANT
SCALIA, J., dissenting
the crime, see ante, at 28; the formality of the statement,
see ante, at 19; and finally, whether the statement strikes
us as reliable, see ante, at 11–12, 14–15. This is no better
than the nine-factor balancing test we rejected in Craw
ford, 541 U. S., at 63. I do not look forward to resolving
conflicts in the future over whether knives and poison are
more like guns or fists for Confrontation Clause purposes,
or whether rape and armed robbery are more like murder
or domestic violence.
It can be said, of course, that under Crawford analysis
of whether a statement is testimonial requires considera
tion of all the circumstances, and so is also something of a
multifactor balancing test. But the “reliability” test does
not replace that analysis; it supplements it. As I under
stand the Court’s opinion, even when it is determined that
no emergency exists (or perhaps before that determination
is made) the statement would be found admissible as far
as the Confrontation Clause is concerned if it is not
testimonial.
In any case, we did not disavow multifactor balancing
for reliability in Crawford out of a preference for rules
over standards. We did so because it “d[id] violence to” the
Framers’ design. Id., at 68. It was judges’ open-ended
determination of what was reliable that violated the trial
rights of Englishmen in the political trials of the 16th and
17th centuries. See, e.g., Throckmorton’s Case, 1 How. St.
Tr. 869, 875–876 (1554); Raleigh’s Case, 2 How. St. Tr., at
15–16, 24. The Framers placed the Confrontation Clause
in the Bill of Rights to ensure that those abuses (and the
abuses by the Admiralty courts in colonial America) would
not be repeated in this country. Not even the least dan
gerous branch can be trusted to assess the reliability of
uncross-examined testimony in politically charged trials or
trials implicating threats to national security. See Craw
ford, supra, at 67–68; cf. Hamdi v. Rumsfeld, 542 U. S.
507, 576–578 (2004) (SCALIA, J., dissenting).
Cite as: 562 U. S. ____ (2011) 17
SCALIA, J., dissenting
* * *
Judicial decisions, like the Constitution itself, are noth
ing 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.
Cite as: 562 U. S. ____ (2011) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–150
_________________
MICHIGAN, PETITIONER v. RICHARD PERRY
BRYANT
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF MICHIGAN
[February 28, 2011]
JUSTICE GINSBURG, dissenting.
I agree with JUSTICE SCALIA that Covington’s state
ments were testimonial and that “[t]he declarant’s intent
is what counts.” Ante, at 2 (dissenting opinion). 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,” ante,
at 14 (emphasis deleted).
I would add, however, this observation. In Crawford v.
Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted
that, in the law we inherited from England, there was a
well-established exception to the confrontation require
ment: The cloak protecting the accused against admission
of out-of-court testimonial statements was removed for
dying declarations. This historic exception, we recalled in
Giles v. California, 554 U. S. 353, 358 (2008); see id., at
361–362, 368, applied to statements made by a person
2 MICHIGAN v. BRYANT
GINSBURG, J., dissenting
about to die and aware that death was imminent. Were
the issue properly tendered here, I would take up the
question whether the exception for dying declarations
survives our recent Confrontation Clause decisions. The
Michigan Supreme Court, however, held, as a matter of
state law, that the prosecutor had abandoned the issue.
See 483 Mich. 132, 156–157, 768 N. W. 2d 65, 78 (2009).
The matter, therefore, is not one the Court can address in
this case.