"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, March 01, 2011

Hell Freezing Over

Sonya Sotomayer is right. Sort of. Antonin Scalia is wrong.

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.


Minnesota Criminal Lawyer said...

Hmm.. interesting story and quite the conundrum. Thanks for the well presented information. Made it a really absorbing and easy read.

expat divorce said...

Interesting- it's quite a dillema though. It has certainly left me pondering the ins and outs.

R said...

This is a very interesting case which has certainly caught my interest.

In particular I find comfort in Thomas sticking to his guns that the whole premise of determining the "primary purpose" is foolish, just as he did in Davis.

Sotomayer manages to arrive at the right conclusion based upon precedent in Davis.

Scalia, however, seems to be trying to undue his opinion in Davis by arguing that that opinion did not set forth the "perspective" that should be used to determine the "primary purpose" of an interrogation. This is nonsense. In the majority opinion, he wrote that statements are not considered testimony if the "primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency". It seems unlikely that someone being interrogated would be determining the purpose of that interrogation. It almost appears as though Scalia is viewing the perspective of the (as he views it) witness so as to muddy the waters. Perhaps he is coming around to Thomas' school of thought that the "primary purpose" test is an unwise precedent?

Chicago Criminal Lawyer said...

what is he tell lie, why any one believed his words ?