Supreme Court limits the Confrontation Clause of the Sixth Amendment in Michigan v. Bryant

Mar 07, 2011   

On February 28, 2011, in Michigan v. Byrant, Justice Sotomayor writing for the United States Supreme Court held that a victims identification and description of the defendant and the location of the alleged crime were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Citing Davis v. Washington, 547 U. S., at 822. Therefore, the use of the identification at the Defendants trial did not violate the Confrontation Clause.

To make the “primary purpose” determination, the a criminal court must objectively evaluate the circumstances in which the out-of-court statement was given to the police and the parties statements and actions. The primary purpose inquiry is an objective analysis. The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogations “primary purpose.”

However Justice Scalia wrote a blistering dissent rejecting the majority’s opinion. The highlights of the dissent include the following passages:

Todays tale”a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose”is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however”or perhaps as an intended second goal”todays 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.

The only virtue of the Courts 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 polices 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 perspectives to reach its desired outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is no guarantee at all.”

The full opinion can be found here:

The attorneys at Fuerst Ittleman have extensive experience handling white collar criminal cases at both the trial and the appellate level. You can reach an attorney by emailing us at