Michigan police responded to a shooting call and found a man with a wound, asked him what happened, and he said he was shot by the defendant. The victim dies a few hours later. At trial, the victim's statements are introduced against the defendant and he is convicted of murder.
Result: Sotomayor concludes there was NOT a violation of the Confrontation Clause, because the police were not eliciting testimonial statements from the victim with a view towards ultimate prosecution, but responding to a perceived on-going emergency in which they did not know where the shooting happened, who the shooter was, or where he was located, and informally asking the victim questions geared to addressing those objective concerns.
Scalia, in dissent, and with his usual coyness, holds that:
Today’s 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.Scalia suggests that rather than focusing on the "primary purpose" of the questioning, a focus on the interrogator, the proper inquiry is solely on the declarant's purpose in making a statement. He concludes that in this case, the declarant could not have perceived anything other than that the police were hoping to identify his assailant in order to arrest and prosecute him. Result: a testimonial statement subject to the right of confrontation.
Justice Thomas, as is usually the case, answers the issue correctly (concurring in the majority result) rejecting the whole venture of attempting to recreate what the "primary purpose" of a questioning was. He maintains that this test is unhistorical and generates much uncertainty among police and trial courts.
Rather, according to Thomas, the Court should "consider the extent to which the interrogation resembles those historical practices that the Confrontation Clause addressed. See, e.g., id., at 835–836 (describing "practices that occurred underthe English bail and committal statutes passed during the reign of Queen Mary")." If the interrogation practices in a given case do not approximate those historical practices, then there is no violation of the Confrontation Clause by introducing the contents of the interrogation.
The case is Michigan v. Bryant.