The United States Supreme Court will hear oral argument in the Sixth Amendment Confrontation Clause case of Michigan v. Bryant on October 5th. In Bryant, a case from Michigan, the victim of a crime was injured from a gunshot wound and gave a description of the shooter to police. The victim died from the gunshot wound. The State admitted into evidence at trial the victim’s statements to the police. The defendant was convicted and appealed to the Michigan Supreme Court which held that the defendant’s right of confrontation was violated. The State appealed to the United States Supreme Court, which granted certiorari on March 1, 2010, 130 S.Ct. 2138 (2010).

The Bryant case raises the issue of whether statements to police by a witness experiencing a medical emergency are nontestimonial when made for the primary purpose of allowing the police to respond to an ongoing emergency when the perpetrator of the crime is still at large. The Court’s resolution of Bryant will rely heavily on how the court interprets its prior decision of Davis v. Washington, 547 U.S. 813 (2006) which defined when a statement is testimonial under the Sixth Amendment.

In Davis, the United States Supreme Court held that statement made by a victim who called 911 to report that she was being subject to domestic violence were nontestimonial. The Court held that the victim’s statements to the 911 operator were nontestimonial because the victim was speaking of events as they were actually happening and the statements were made as the victim faced an ongoing emergency and were made for the purpose of allowing the police to respond to the emergency.

In Davis, the 911 operator asked questions of the victim to establish his identity, whether or not he had been drinking and whether he had any weapons. This is significant as the 911 operator did not just passively receive information but actively obtained information that would assist in the prosecution of the defendant. The Davis Court held that statements were nontestimonial when made in the course of police interrogation under circumstances that objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The Court held that statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove a past event potentially relevant to criminal prosecution.

The State in Bryant argued in its brief that the questioning of the injured victim was necessary to respond to an ongoing emergency to apprehend a dangerous suspect. The defendant’s criminal defense attorneys argued in its brief that there was no ongoing emergency because the victim was found six blocks from the shooting and thirty minutes passed from the time of the shooting to the time of the statement.

The State will argue before the Supreme Court that ongoing emergency should be read broadly to encompass any emergency, that the criminal activity set in motion. In contrast, the defendant will urge a more limited interpretation of ongoing emergency to limit to circumstances where the victim is making a cry for help and seeking immediate assistance.

The Court should find that the defendant’s Sixth Amendment right of confrontation was violated by the admission of the victim’s statements. The victim’s statements directly implicate the defendant in the criminal conduct after it had already occurred and the emergency to the victim had subsided.

There is no way for the defendant’s criminal defense lawyer to challenge the reliability of the victim’s statement’s statements and accordingly, he is being denied his right of confrontation. The statements should be viewed as testimonial because the victim is speaking to the police with the sole purpose that the suspect be caught and prosecuted. Under the Davis case, the victim made the statements while the incident was ongoing; accordingly, under the ongoing emergency exception the court viewed these statements as nontestimonial. To expand the emergency exception to include situations when the suspect is at large, would violate the Sixth Amendment and misinterpret the court narrow holding Davis, which was limited to situations where the victim was still confronted with an emergency situation and reporting the details of the criminal activity as they were occurring.