The United States Supreme Court’s decision in Michigan v. Bryant, decided today, diminishes the Sixth Amendment right of confrontation. The Court held that statements are nontestimonial and thus not covered by the Sixth Amendment confrontation clause when the primary purpose of the statement is to allow the police to respond to an ongoing emergency. The Court’s opinion represents a substantial departure from the Court’s recent cases of Crawford v. Washington, 541 U.S. 36 (2004) and Melendez Diaz v. Massachusetts, 557 U.S. __ (2009) both affirming that the Constitution requires face to face confrontation under the Sixth Amendment.

Four justices joined in this reasoning with Justice Thomas joining the majority based on the fact that the statement was not sufficiently formal to be testimonial. Accordingly, Justice Thomas defines the right of confrontation based on whether the statement is similar to the historical practices that the framers of the Constitution intended to curtail when drafting the confrontation clause.

The Bryant case is an unusual case as the police came upon a victim who was dying from a gun shot wound. The police asked the victim what happened and he identified the defendant as the shooter. The victim died, leaving his statements as the only evidence identifying the defendant is the shooter. The Court held that the circumstances of the emergency indicated that the primary purpose of the victim’s statement was to help the police respond to an ongoing emergency of capturing the assailant. The Court held that a person in the victim’s position would not have a purpose of identifying his shooter for future prosecution, but to assist the police in responding to the emergency. Further, the Court stressed that the primary purpose of the police was to respond to the medical emergency facing the victim. Additionally, the Court stated that the defendant’s medical condition and the informal nature of the questioning was relevant in determining the primary purpose of the statement.

The Court’s decision relied primarily on its precedent in Davis v. Washington, 547 U.S. 813 (2006) where the court admitted statements relating to domestic violence made to a 911 operator when the victim refused to testify at trial. The difference between the statements in Davis and Bryant is that the victim spoke to the 911 operator as the incident was occurring rather than at least 25 minutes after the incident as in Bryant. Accordingly, the court expanded the logic of Davis in the Bryant decision.

The Bryant decision is significant in that the Court is taking a pragmatic approach in defining the right of confrontation rather than relying on the literal interpretation of the Sixth Amendment as requiring face to face confrontation as stressed in the Courts’ Crawford decision.

The decision is also significant because Justice Sotomayor wrote the opinion of the court and she was not on the Court at the time of the most recent confrontation clause case of Melendez-Diaz. Justice Kagan did not participate in the decision.

Writing in dissent, Justice Scalia argued that the Court’s primary purpose test abandons the rationale of Crawford v. Washington and returns to the reliability test that the Court rejected in Crawford. Justice Scalia stressed that in court testimony is a solemn declaration that the declarant understands how the testimony may be used and the intent of the officer cannot substitute for the declarant’s understanding of how his words may be used in court. Justice Scalia asserts that the balancing behind the primary purpose test allows judges to reach results based on what the judge perceives as fair. Further, Justice Scalia found that even applying the primary purpose test the victim’s statement was testimonial because the statement had little value other than to ensure the arrest of the defendant.

As a Massachusetts criminal attorney, the Bryant decision is extremely significant because it shifts the Court’s Sixth Amendment case law toward a balancing approach that is likely to result in more out of court statements being admitted into evidence without live testimony. Further, Massachusetts criminal lawyers will have significant pretrial hearings applying the court’s balancing test to determine the admissibility of statements.