« SCOTUS to finally consider whether "cocaine base" means more than crack | Main | "A Critical Appraisal of the Department of Justice’s New Approach to Medical Marijuana" »

February 28, 2011

SCOTUS limits reach of confrontation clause in Michigan v. Bryant

Because the Sixth Amendment's Confrontation Clause has been held not to apply at sentencing, today's SCOTUS ruling about the reach of the clause today in Michigan v. Bryantis not technically an issue of sentencing law and policy.  Nevertheless, the authors of today's opinions -- Justice Sotomayor for the Court, Justice Thomas with a separate concurrence, and Justices Scalia and Ginsburg in dissent (and Justice Kagan not participating) -- and the opinion itself are likely of great interest to all criminal justice participants.  Here is how the opinion for the Court gets started:

At respondent Richard Bryant’s trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot.  A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N.W.2d 65, 67–68 (2009).  On appeal, the Supreme Court of Michigan held that the Sixth Amendment’s Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), rendered Covington’s statements inadmissible testimonial hearsay, and the court reversed Bryant’s conviction.  483 Mich., at 157, 768 N.W.2d, at 79.  We granted the State’s petition for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of Covington’s statements to the police.  We hold that the circumstances of the interaction between Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.”  Davis, 547 U.S., at 822.  Therefore, Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.

UPDATE:  Over at The Volokh Conspiracy here, Orin Kerr has this post on the Bryant decision titled "Michigan v. Bryant and the Future of the Confrontation Clause."

February 28, 2011 at 10:18 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS limits reach of confrontation clause in Michigan v. Bryant:



What's the best cite you have that the Confrontation Clause does not apply at sentencing?


Posted by: Mark Pickrell | Feb 28, 2011 10:30:38 AM

Scalia's dissent is crushing.

Posted by: Scott Forster | Feb 28, 2011 11:10:47 AM

Between the decision in Crawford (holding that the Confrontation Clause applies only to testimonial statements) and now Bryant (limiting the category of statements are testimonial) the Confrontation Clause has been severely narrowed.

Posted by: defense attorney | Feb 28, 2011 11:22:29 AM

By way of background for my question above, when a crime victim (now) has the right to testify against a defendant at sentencing, does the defendant have the right to have the witness be under oath and subject to cross-examination? I'm not aware of any Supreme Court decision on point.

Posted by: Mark Pickrell | Feb 28, 2011 11:46:50 AM

lol so we have another retard decision by the criminals now on the supreme court.

sorry the crooked cops can call it what they want...they took info that they used as TESTIMONY at a trial ...therefore it's TESTIMONY....sounds like a no-brainer to me. pity the crooks on the bench can't get it.

Posted by: rodsmith | Feb 28, 2011 12:15:37 PM

Mark P: The technically still good law of the 1949 SCOTUS ruling in Williams is my basis for saying CC does not apply at sentencing. In addition, many circuits have reiterated this view even after Crawford, though I think some cases suggest this rule may no longer apply at capital sentencing hearings. In addition, it is relatively rare that the issue gets cleanly litigated, and it is possible that the jurisprudence could (and I think should) evolve in certain settings.

Posted by: Doug B. | Feb 28, 2011 1:11:19 PM

I would have been far more comfortable with some sort of widening of the deathbed exception to the hearsay rule than this narrowing of what is testimonial. Sadly, just like so many other arenas of crminal procedure, the more SCOTUS messes around in this arena with results oriented rulings suited for the one case in front of them the more incoherent the overall body of law becomes.

Posted by: Soronel Haetir | Feb 28, 2011 1:12:36 PM


I fail to see how the cops did anything crooked here at all. The trial judge and the SCOTUS majority, yep. But the cops did, as far as I can tell, exactly what they were supposed to.
They could, perhaps, be faulted for a lack of sensitivity to a dying man but that does not violate Bryant s rights in any way. If you can point to anything to back up your accusation of crookedness on the part of the police in this case I would be interested to see it.

Posted by: Soronel Haetir | Feb 28, 2011 1:38:44 PM

sorry soronel but these days i consider ALL cops and politicians crooked TILL THEY PROVE THEY AREN'T...

Posted by: rodsmith | Mar 1, 2011 1:52:55 AM

Returning to the topic of the blog, perhaps Rod can suggest the sentence he deems appropriate for a police officer who commits the heinous offense of asking a shooting victim, "What happened?"

Posted by: Kent Scheidegger | Mar 1, 2011 11:30:35 AM

there is a big diff in using the information gotten to get other evidence than it is to use it as direct evidence as gospel in the trial stage.

Posted by: rodsmith | Mar 1, 2011 6:15:53 PM

The prosecutor introduces it, and the judge decides whether to admit it. A police officer does nothing wrong by answering a question put to him which the judge has ruled he should answer.

Posted by: Kent Scheidegger | Mar 2, 2011 4:13:10 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB