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.
Anthony Covington of Detroit was allegedly shot by Richard Bryant through Bryant’s back porch door and was wounded in the abdomen. Covington was able to make his way to his car, get in and drive it six blocks where he pulled into a gas station and got out of the car. Police were summoned to the scene and found Coverington on the pavement. The first police arrived about 25 minutes after the shooting and successive teams of officers arrived shortly thereafter.
Five different officers interrogated Covington with questions such as: “What happened?”, “Who shot?”, “Where, did the shooting take place?” Follow-up questions included: “How tall is the shooter?”, “How much did he weigh?” "What events led up to the shooting?" During the questioning Covington identified Bryant.
Upon arrival the EMS, the questioning ended. Covington later died of his wounds. At trial, Covington’s identification of Bryant was admitted into evidence and Bryant was convicted of second-degree murder. Bryant’s appeal was based, in part, on the admission of the identification which he claimed was in violation of his rights under the Confrontation Clause of the Sixth Amendment. The Michigan Supreme Court found that the admission of the statement was error and reversed the conviction. Michigan appealed to the U.S. Supreme Court.
The Confrontation Clause provides that “…in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Bryant asserted that because Covington had died and because Bryant never had the opportunity to confront him in cross-examination, his rights under the Confrontation Clause were violated. In prior Court decisions - Crawford v. Washington and Davis v. Washington - such testimony could be admitted without violating the defendant’s right of confrontation if:
“the primary purpose … [was] to enable police assistance to meet an on-going emergency.” [Emphasis supplied]
In a decision by Justice Sotomayor, the Court found that the identification could be admitted without violating Bryant's confrontation rights.
After reviewing precedents, the Court first opined that such testimony could be admitted if an ‘objective person’ (not subjective, based on how a particular individual might react) would find that the primary purpose of the statement was to address an ongoing emergency. Additionally, consideration should be given to the victim’s medical condition, the type of weapon involved, how first responders actions revealed if they thought an “emergency” was a continuing threat to the victim, themselves and/or the public. A lot to consider.
Justice Scalia added, "In its vain attempt to make the incredible plausible, today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles.”