©2011 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM)

Investigators and Prosecutors Must Look At Totality of Circumstances Surrounding Statement.

In the first case this term impacting law enforcement operations, the United States Supreme Court further analyzed the reach of the Sixth Amendment’s Confrontation Clause on statement’s obtained by law enforcement during initial investigations.   Investigators are all familiar with the so-called “dying-declaration” which is an exception to the rule which prohibits hearsay statements from being used in court.  The dying-declaration is a rule of evidence and not a Constitutional Rule.  Thus, a statement which may have been admissible as an exception to the hearsay rule may not be admissible under the confrontation clause of the Constitution.  In its newest ruling on this issue the United States Supreme Court examined the statement of a mortally wounded victim who, before dying, identified the shooter as well as the location of the shooting.

The Court described the facts in Michigan v. Bryant [i] as follows:

“Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a radio dispatch indicating that a man had been shot. At the scene, they found the victim, Anthony Covington, lying on the ground next to his car in a gas station parking lot. Covington had a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty.

The police asked him “what had happened, who had shot him, and where the shooting had occurred.” Covington stated that “Rick” shot him at around 3 a.m.  He also indicated that he had a conversation with Bryant, whom he recognized based on his voice, through the back door of Bryant’s house. Covington explained that when he turned to leave, he was shot through the door and then drove to the gas station, where police found him.

Covington’s conversation with the police ended within 5 to 10 minutes when emergency medical services arrived. Covington was transported to a hospital and died within hours. The police left the gas station after speaking with Covington, called for backup, and traveled to Bryant’s house. They did not find Bryant there but did find blood and a bullet on the back porch and an apparent bullet hole in the back door. Police also found Covington’s wallet and identification outside the house.”

In analyzing the Confrontation Clause, the Court cited to recent holdings carving the parameters of admissibility.  In prior decisions the Court has distinguished testimonial from non-testimonial statements and held that non-testimonial statements may be admissible under the Constitution if also meeting a firmly rooted hearsay exception.  For prior cases, see “An Investigator’s Road Map to Out of Court Statements.”

In its prior cases the Court has defined testimony “as [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”  The Court described it’s holding from Crawford [ii] case the Court asserted: “We therefore limited the Confrontation Clause’s reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands what the common law required: unavailability and a prior opportunity for cross-examination.” Although “leav[ing] for another day any effort to spell out a comprehensive definition 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.”

The Court’s concern with these out of court statements is that the introduction of these statements at trial may deprive the accused of being able to confront and cross-examine his or her accuser.  The Confrontation Clause provides the defendant with the right to challenge and test the testimony of the witnesses and/or victim who is making the accusation.  If a witness’ statement is introduced and the witness is not present there is no such opportunity.

In determining whether a statement made to law enforcement runs afoul of the Sixth Amendment’s Confrontation Clause, a court must look at the “primary purpose” of the statement.

The Court asserted: “If 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.”  In cases where the primary purpose is not to create a record for trial then the Federal and State Rules of Evidence, i.e. hearsay rules apply but not the Sixth Amendment’s Confrontation Clause.

In providing the framework for law enforcement and prosecutors, the Court provided the following analysis: “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render the resulting statements non-testimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.”

In describing the facts to be considered the Court provided the following:

“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 objectively 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 reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred…As our recent Confrontation Clause cases have explained, 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…The existence 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…Rather, it focuses them on “end[ing] a threatening situation.’ Implicit in Davis [iii] is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

Additional factors in the analysis include the informality of the interview and the actions of the officers or the person being interviewed.  The Court noted that the actions of the parties may provide objective evidence as to the primary purpose of the “interrogation.”  This would include the questions which were asked and answered, were these questions and answers important to resolving the on-going emergency.  The condition of the victim being interrogated may also be part of the objective analysis since it is unlikely that a severely injured victim will be thinking about the suspect being prosecuted when providing a statement.

The Court held:

“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 purpose 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 testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.  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.”

In applying this analysis to the facts of the case, the Court asserted:

“We turn now to that inquiry, as informed by the circumstances of the ongoing emergency just described. The circumstances of the encounter provide important 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?’ Covington’s response was either ‘Rick shot me’ or ‘I was shot,’ followed very quickly by an identification of ‘Rick’ as the shooter. 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 answers to the police officers’ questions were punctuated with questions about when emergency medical services would arrive. He was obviously in considerable pain and had difficulty breathing and talking. 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 ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution…’ 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. The questions they asked – ‘what had happened, who had shot him, and where the shooting occurred,’ 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, including to allow them to ascertain ‘whether they would be encountering a violent felon.’ In other words, they solicited the information necessary to enable them “to meet an ongoing emergency.”

The Court noted the informality and chaotic nature of the scene at the gas station as officers arrived to the call of a shooting.  They considered the questions by the officers and the answers of the victim during this on-going emergency and determined that the victim’s statements were non-testimonial and therefore admissible against the defendant under the Sixth Amendment.






[i]   Michigan v. Bryant, 2011 U.S. LEXIS 1713 (2011)

[ii] Crawford v. Washington, 541 U.S. 36 (2004).

[iii] Davis v. Washington, 547 U.S. 813 (2006).

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