The Supreme Court recently published a confusing case that may affect how courts view the Confrontation Clause. Following the seminal cases of Crawford v. Washington and
Davis v. Washington, the United States Supreme Court held that with few exceptions, a prior testimonial statement could only be admissible if the witness was unavailable and a defendant had a prior opportunity to cross-examine the witness.
In Davis, the Court defined "testimonial" to exclude a telephone call to 911 regarding an "ongoing emergency", thus permitting the transcripts of such calls to be used against a criminal defendant.
However, in Michigan v. Bryant (2011) 131 S. Ct. 1143, the Supreme Court seems to have taken a backward step from its prior decisions. In that case, the victim did not call 911, but identified Bryant as his shooter after he was shot and while police were looking for the perpetrator. The issue before the Court in
Bryant is whether the police's questioning occurred in the context of an ongoing emergency. The Court ruled that it was and based its decision, in part, on the subjective intent of the officers who took the information.
In a blistering dissent by Justice Scalia, he called the Court's reasoning an obfuscation of Crawford's logical approach. Nevertheless, criminal defense attorneys must be aware that in violent altercations, like the one posed in
Bryant, prosecutors will attempt to skirt the confrontation clause requirements by arguing the "on-going" emergency exception.
It remains to be seen how the California courts will interpret Bryant and whether they will expand the "on-going" emergency exception. However, criminal practitioners must be aware of this problem if faced with a confrontation question.