The 6-to-2 decision was a significant retreat from the court’s recent embrace of the Sixth Amendment’s Confrontation Clause, which guarantees criminal defendants the right to confront witnesses against them.
Justice Antonin Scalia had been the leading proponent of a robust interpretation of the Confrontation Clause, and Monday’s decision drew a slashing dissent from him. He called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.”
“In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles.”
The case arose from a predawn shooting in Detroit in 2001. The victim, Anthony Covington, was questioned by police officers in a gas station parking lot as he bled from a wound to his abdomen. He said he had been shot by Richard P. Bryant.
Mr. Covington died a few hours later. Police officers told the jury what he had said, and Mr. Bryant was convicted of murder.
The Michigan Supreme Court reversed the conviction, saying that allowing the officers to testify about Mr. Covington’s statements had violated the Confrontation Clause.
Justice Sonia Sotomayor, writing for the majority, said the state court had made a mistake in considering Mr. Covington’s statements to be “testimonial” and hence subject to the Confrontation Clause. Testimonial statements, she explained, are ones solemnly made to establish facts about past events.
The primary purpose of Mr. Covington’s statement was something else, Justice Sotomayor wrote. It was to aid the police in addressing an “ongoing emergency,” given that the person who shot Mr. Covington had a gun and was on the loose.
Mr. Covington’s statements might also have been admissible by another route, as a “dying declaration.” But the prosecution in Mr. Bryant’s case did not pursue that theory, and Justice Sotomayor did not address it on Monday except to say that it was possible that a dying declaration “might be admissible as a historical exception to the Confrontation Clause.” Justice Ruth Bader Ginsburg said roughly the same thing in her dissent.
Justice Sotomayor, responding to criticism from Justice Scalia, acknowledged that determining whether the primary purpose of a crime victim’s statement was to provide information about past events or to aid in addressing a current emergency requires “a highly context-dependent inquiry.”
“Simpler is not always better,” she wrote, “and courts making a ‘primary purpose’ assessment should not be unjustifiably restrained from consulting all relevant information.”
That included, she said, the circumstances in which the victim spoke and what could be known about his intentions and those of his questioners.
“There was an ongoing emergency here,” Justice Sotomayor wrote, “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 were the police found Covington.”
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined Justice Sotomayor’s opinion. Justice Clarence Thomas voted with the majority but on a different theory, saying that statements offered in informal settings were not testimonial whatever their purpose.
Justice Elena Kagan did not participate because she had worked on the case as United States solicitor general.
Justice Scalia’s dissent was comprehensively critical of the majority’s approach. He said it represented a significant shift away from the court’s 2004 ruling in Crawford v. Washington, which had breathed new life into the Confrontation Clause.
“This is an absurdly easy case,” Justice Scalia wrote. Mr. Covington’s statements, he said, “had little value except to ensure the arrest and eventual prosecution of Richard Bryant.” Indeed, he said, his exchange with the police resembled “a routine direct examination” at trial.
Justice Scalia added that the majority had smuggled back into the law a factor that the Crawford decision had rejected — whether the out-of-court statements were “reliable.”
“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” Justice Scalia wrote for the majority in Crawford. “This is not what the Sixth Amendment prescribes.”
Monday’s decision in the case, Michigan v. Bryant, No. 09-150, effectively did away with the core of Crawford even as it stopped short of overturning the decision, Justice Scalia wrote. “After all,” he said, “honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint.”
“For all I know,” Justice Scalia concluded, “Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from all of us.”
Correction: March 2, 2011
Because of an editing error, an article on Tuesday about a Supreme Court ruling that a mortally wounded man’s identification of his assailant may be used as evidence in court misspelled a word in a phrase used by Justice Antonin Scalia in his dissent. Justice Scalia pondered whether the defendant, convicted by the testimony of a witness he could not face in court, “has received his just deserts.” He did not use the often-seen, but erroneous spelling “just desserts.”