MICHIGAN v. BRYANT

OPINION OF THE COURT
MICHIGAN V. BRYANT
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-150

MICHIGAN, PETITIONER v. RICHARD PERRY BRYANT

on writ of certiorari to the supreme court of michigan

[February 28, 2011]

   Justice Sotomayor delivered the opinion of the Court.

   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.

I

   Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a radio dispatch indicating that a man had been shot. At the scene, they found the victim, Anthony Covington, lying on the ground next to his car in a gas station parking lot. Covington had a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty.

   The police asked him “what had happened, who had shot him, and where the shooting had occurred.” 483 Mich., at 143, 768 N. W. 2d, at 71. Covington stated that “Rick” shot him at around 3 a.m. Id., at 136, and n. 1, 768 N. W. 2d, at 67, and n. 1. He also indicated that he had a conversation with Bryant, whom he recognized based on his voice, through the back door of Bryant’s house. Covington explained that when he turned to leave, he was shot through the door and then drove to the gas station, where police found him.

   Covington’s conversation with the police ended within 5 to 10 minutes when emergency medical services arrived. Covington was transported to a hospital and died within hours. The police left the gas station after speaking with Covington, called for backup, and traveled to Bryant’s house. They did not find Bryant there but did find blood and a bullet on the back porch and an apparent bullet hole in the back door. Police also found Covington’s wallet and identification outside the house.

   At trial, which occurred prior to our decisions in Crawford, 541 U. S. 36, and Davis, 547 U. S. 813, the police officers who spoke with Covington at the gas station testified about what Covington had told them. The jury returned a guilty verdict on charges of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony.   Bryant appealed, and the Michigan Court of Appeals affirmed his conviction. No. 247039, 2004 WL 1882661 (Aug. 24, 2004) (per curiam). Bryant then appealed to the Supreme Court of Michigan, arguing that the trial court erred in admitting Covington’s statements to the police. The Supreme Court of Michigan eventually remanded the case to the Court of Appeals for reconsideration in light of our 2006 decision in Davis. 477 Mich. 902, 722 N. W. 2d 797 (2006). On remand, the Court of Appeals again affirmed, holding that Covington’s statements were properly admitted because they were not testimonial. No. 247039, 2007 WL 675471 (Mar. 6, 2007) (per curiam). Bryant again appealed to the Supreme Court of Michigan, which reversed his conviction. 483 Mich. 132, 768 N. W. 2d 65.

   Before the Supreme Court of Michigan, Bryant argued that Covington’s statements to the police were testimonial under Crawford and Davis and were therefore inadmissible. The State, on the other hand, argued that the statements were admissible as “excited utterances” under the Michigan Rules of Evidence. 483 Mich., at 142, and n. 6, 768 N. W. 2d, at 70, and n. 6. There was no dispute that Covington was unavailable at trial and Bryant had no prior opportunity to cross-examine him. The court therefore assessed whether Covington’s statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred; the ‘primary purpose’ was not to enable police assistance to meet an ongoing emergency.” Id., at 143, 768 N. W. 2d, at 71. The court explained that, in its view, Covington was describing past events and as such, his “primary purpose in making these statements to the police . . . was . . . to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal.” Id., at 144, 768 N. W. 2d, at 71. Noting that the officers’ actions did not suggest that they perceived an ongoing emergency at the gas station, the court held that there was in fact no ongoing emergency. Id., at 145–147, 768 N. W. 2d, at 71–73. The court distinguished the facts of this case from those in Davis, where we held a declarant’s statements in a 911 call to be nontestimonial. It instead analogized this case to Hammon v. Indiana, which we decided jointly with Davis and in which we found testimonial a declarant’s statements to police just after an assault. See 547 U. S., at 829–832. Based on this analysis, the Supreme Court of Michigan held that the admission of Covington’s statements constituted prejudicial plain error warranting reversal and ordered a new trial. 483 Mich., at 151–153, 768 N. W. 2d, at 75–76. The court did not address whether, absent a Confrontation Clause bar, the statements’ admission would have been otherwise consistent with Michigan’s hearsay rules or due process.[Footnote 1]

   The majority’s opinion provoked two dissents, both of which would have held Covington’s statements admissible because they were made in circumstances indicating that their “primary purpose” was to assist police in addressing an ongoing emergency. Id., at 157, 768 N. W. 2d, at 79 (opinion of Weaver, J.); id., at 157–158, 768 N. W. 2d, at 79 (opinion of Corrigan, J.). Justice Corrigan’s dissent explained that the time and space between “the onset of an emergency and statements about that emergency clearly must be considered in context.” Id., at 161, 768 N. W. 2d, at 80. Justice Corrigan concluded that the objective circumstances of Covington’s interaction with police rendered this case more similar to the nontestimonial statements in Davis than to the testimonial statements in Crawford. 483 Mich., at 164, 768 N. W. 2d, at 82.

   We granted certiorari to determine whether the Confrontation Clause barred admission of Covington’s statements. 559 U. S. ___ (2010).

II

   The Confrontation Clause of the Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Fourteenth Amendment renders the Clause binding on the States. Pointer v. Texas, 380 U. S. 400, 403 (1965). In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we explained that the confrontation right does not bar admission of statements of an unavailable witness if the statements “bea[r] adequate ‘indicia of reliability.’ ” We held that reliability can be established if “the evidence falls within a firmly rooted hearsay exception,” or if it does not fall within such an exception, then if it bears “particularized guarantees of trustworthiness.” Ibid.

   Nearly a quarter century later, we decided Crawford v. Washington, 541 U. S. 36. Petitioner Michael Crawford was prosecuted for stabbing a man who had allegedly attempted to rape his wife, Sylvia. Sylvia witnessed the stabbing, and later that night, after she and her husband were both arrested, police interrogated her about the incident. At trial, Sylvia Crawford claimed spousal privilege and did not testify, but the State introduced a tape recording of Sylvia’s statement to the police in an effort to prove that the stabbing was not in self-defense, as Michael Crawford claimed. The Washington Supreme Court affirmed Crawford’s conviction because it found Sylvia’s statement to be reliable, as required under Ohio v. Roberts. We reversed, overruling Ohio v. Roberts. 541 U. S., at 60–68; see also Davis, 547 U. S., at 825, n. 4.

   Crawford examined the common-law history of the confrontation right and explained that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” 541 U. S., at 50. We noted that in England, pretrial examinations of suspects and witnesses by government officials “were sometimes read in court in lieu of live testimony.” Id., at 43. In light of this history, we emphasized the word “witnesses” in the Sixth Amendment, defining it as “those who ‘bear testimony.’ ” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). We defined “testimony” as “ ‘ [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51 (quoting Webster). We noted that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Ibid. We therefore limited the Confrontation Clause’s reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id., at 68. Although “leav[ing] for another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” Crawford noted that “at a minimum” it includes “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.” Ibid. Under this reasoning, we held that Sylvia Crawford’s statements in the course of police questioning were testimonial and that their admission when Michael Crawford “had no opportunity to cross-examine her” due to spousal privilege was “sufficient to make out a violation of the Sixth Amendment.” Ibid.

   In 2006, the Court in Davis v. Washington and Hammon v. Indiana, 547 U. S. 813, took a further step to “determine more precisely which police interrogations produce testimony” and therefore implicate a Confrontation Clause bar. Id., at 822. We explained that when Crawford said that

“ ‘interrogations by law enforcement officers fall squarely within [the] class’ of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial.” Davis, 547 U. S., at 826.

We thus made clear in Davis that not all those questioned by the police are witnesses and not all “interrogations by law enforcement officers,” Crawford, 541 U. S., at 53, are subject to the Confrontation Clause.[Footnote 2]

   Davis and Hammon were both domestic violence cases. In Davis, Michelle McCottry made the statements at issue to a 911 operator during a domestic disturbance with Adrian Davis, her former boyfriend. McCottry told the operator, “ ‘He’s here jumpin’ on me again,’ ” and, “ ‘He’s usin’ his fists.’ ” 547 U. S., at 817. The operator then asked McCottry for Davis’ first and last names and middle initial, and at that point in the conversation McCottry reported that Davis had fled in a car. Id., at 818. McCottry did not appear at Davis’ trial, and the State introduced the recording of her conversation with the 911 operator. Id., at 819.

   In Hammon, decided along with Davis, police responded to a domestic disturbance call at the home of Amy and Hershel Hammon, where they found Amy alone on the front porch. Ibid. She appeared “ ‘somewhat frightened,’ ” but told them “ ‘nothing was the matter.’ ” Ibid. (quoting Hammon v. State, 829 N. E. 2d 444, 446–447 (Ind. 2005)). She gave the police permission to enter the house, where they saw a gas heating unit with the glass front shattered on the floor. One officer remained in the kitchen with Hershel, while another officer talked to Amy in the living room about what had happened. Hershel tried several times to participate in Amy’s conversation with the police and became angry when the police required him to stay separated from Amy. 547 U. S., at 819–820. The police asked Amy to fill out and sign a battery affidavit. She wrote: “ ‘Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.’ ” Id., at 820. Amy did not appear at Hershel’s trial, so the police officers who spoke with her testified as to her statements and authenticated the affidavit. Ibid. The trial court admitted the affidavit as a present sense impression and admitted the oral statements as excited utterances under state hearsay rules. Ibid. The Indiana Supreme Court affirmed Hammon’s conviction, holding that Amy’s oral statements were not testimonial and that the admission of the affidavit, although erroneous because the affidavit was testimonial, was harmless. Hammon v. State, 829 N. E. 2d, at 458–459.

   To address the facts of both cases, we expanded upon the meaning of “testimonial” that we first employed in Crawford and discussed the concept of an ongoing emergency. We explained:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They 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 past events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822.

Examining the Davis and Hammon statements in light of those definitions, we held that the statements at issue in Davis were nontestimonial and the statements in Hammon were testimonial. We distinguished the statements in Davis from the testimonial statements in Crawford on several grounds, including that the victim in Davis was “speaking about events as they were actually happening, rather than ‘describ[ing] past events,’ ” that there was an ongoing emergency, that the “elicited statements were necessary to be able to resolve the present emergency,” and that the statements were not formal. 547 U. S., at 827. In Hammon, on the other hand, we held that, “[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct.” Id., at 829. There was “no emergency in progress.” Ibid. The officer questioning Amy “was not seeking to determine . . . ‘what is happening,’ but rather ‘what happened.’ ” Id., at 830. It was “formal enough” that the police interrogated Amy in a room separate from her husband where, “some time after the events described were over,” she “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed.” Ibid. Because her statements “were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation,” id., at 832, we held that they were testimonial.

   Davis did not “attemp[t] to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial.” Id., at 822.[Footnote 3] The basic purpose of the Confrontation Clause was to “targe[t]” the sort of “abuses” exemplified at the notorious treason trial of Sir Walter Raleigh. Crawford, 541 U. S., at 51. Thus, the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial.[Footnote 4] See id., at 43–44. Even where such an interrogation is conducted with all good faith, introduction of the resulting statements at trial can be unfair to the accused if they are untested by cross-examination. Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, the primary purpose of an interrogation is to respond to an “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.[Footnote 5]

   Deciding this case also requires further explanation of the “ongoing emergency” circumstance addressed in Davis. Because Davis and Hammon arose in the domestic violence context, that was the situation “we had immediately in mind (for that was the case before us).” 547 U. S., at 826. We now face a new context: a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim. Thus, we confront for the first time circumstances in which the “ongoing emergency” discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id., at 822.

III

    To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis, 547 U. S., at 822, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.

A

   The Michigan Supreme Court correctly understood that this inquiry is objective.[Footnote 6] 483 Mich., at 142, 768 N. W. 2d, at 70. Davis uses the word “objective” or “objectively” no fewer than eight times in describing the relevant inquiry. See 547 U. S., at 822, 826–828, 830–831, and n. 5; see, e.g., id., at 826 (“The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements”). “Objectively” also appears in the definitions of both testimonial and nontestimonial statements that Davis established. Id., at 822.

   An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the “primary purpose of the interrogation.” The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.[Footnote 7]

B

   As our recent Confrontation Clause cases have explained, the existence of an “ongoing emergency” at the time of an encounter between an individual and the police is among the most important circumstances informing the “primary purpose” of an interrogation. See Davis, 547 U. S., at 828–830; Crawford, 541 U. S., at 65. The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “prov[ing] past events potentially relevant to later criminal prosecution.”[Footnote 8] Davis, 547 U. S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

   This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” Fed. Rule Evid. 803(2); see also Mich. Rule Evid. 803(2) (2010), are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990) (“The basis for the ‘excited utterance’ exception . . . is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed. 2010) (same); Advisory Committee’s Notes on Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing emergency has a similar effect of focusing an individual’s attention on responding to the emergency.[Footnote 9]

   Following our precedents, the court below correctly began its analysis with the circumstances in which Covington interacted with the police. 483 Mich., at 143, 768 N. W. 2d, at 71. But in doing so, the court construed Davis to have decided more than it did and thus employed an unduly narrow understanding of “ongoing emergency” that Davis does not require.

   First, the Michigan Supreme Court repeatedly and incorrectly asserted that Davis “defined” “ ‘ongoing emergency.’ ” 483 Mich., at 147, 768 N. W. 2d, at 73; see also id., at 144, 768 N. W. 2d, at 71–72. In fact, Davis did not even define the extent of the emergency in that case. The Michigan Supreme Court erroneously read Davis as deciding that “the statements made after the defendant stopped assaulting the victim and left the premises did not occur during an ‘ongoing emergency.’ ” 483 Mich., at 150, n. 15, 768 N. W. 2d, at 75, n. 15. We explicitly explained in Davis, however, that we were asked to review only the testimonial nature of Michelle McCottry’s initial statements during the 911 call; we therefore merely assumed the correctness of the Washington Supreme Court’s holding that admission of her other statements was harmless, without deciding whether those subsequent statements were also made for the primary purpose of resolving an ongoing emergency. 547 U. S., at 829.

   Second, by assuming that Davis defined the outer bounds of “ongoing emergency,” the Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. See Brief for United States as Amicus Curiae 20. Davis and Hammon involved domestic violence, a known and identified perpetrator, and, in Hammon, a neutralized threat. Because Davis and Hammon were domestic violence cases, we focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them. 547 U. S., at 827, 829–830.

   Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue. See 483 Mich., at 164, 768 N. W. 2d, at 82 (Corrigan, J., dissenting) (examining the threat to the victim, police, and the public); Brief for United States as Amicus Curiae 19–20 (“An emergency posed by an unknown shooter who remains at large does not automatically abate just because the police can provide security to his first victim”).    

   The Michigan Supreme Court also did not appreciate that the duration and scope of an emergency may depend in part on the type of weapon employed. The court relied on Davis and Hammon, in which the assailants used their fists, as controlling the scope of the emergency here, which involved the use of a gun. The problem with that reasoning is clear when considered in light of the assault on Amy Hammon. Hershel Hammon was armed only with his fists when he attacked his wife, so removing Amy to a separate room was sufficient to end the emergency. 547 U. S., at 830–832. If Hershel had been reported to be armed with a gun, however, separation by a single household wall might not have been sufficient to end the emergency. Id., at 819.

   The Michigan Supreme Court’s failure to focus on the context-dependent nature of our Davis decision also led it to conclude that the medical condition of a declarant is irrelevant. 483 Mich., at 149, 768 N. W. 2d, at 74 (“The Court said nothing at all that would remotely suggest that whether the victim was in need of medical attention was in any way relevant to whether there was an ‘ongoing emergency’ ”). But Davis and Hammon did not present medical emergencies, despite some injuries to the victims. 547 U. S., at 818, 820. Thus, we have not previously considered, much less ruled out, the relevance of a victim’s severe injuries to the primary purpose inquiry.

   Taking into account the victim’s medical state does not, as the Michigan Supreme Court below thought, “rende[r] non-testimonial” “all statements made while the police are questioning a seriously injured complainant.” 483 Mich., at 149, 768 N. W. 2d, at 74. The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim’s medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.

   As the Solicitor General’s brief observes, Brief for United States as Amicus Curiae 20, and contrary to the Michigan Supreme Court’s claims, 483 Mich., at 147, 768 N. W. 2d, at 73, none of this suggests that an emergency is ongoing in every place or even just surrounding the victim for the entire time that the perpetrator of a violent crime is on the loose. As we recognized in Davis, “a conversation which begins as an interrogation to determine the need for emergency assistance” can “evolve into testimonial statements.” 547 U. S., at 828 (internal quotation marks omitted). This evolution may occur if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute. It could also occur if a perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public. Trial courts can determine in the first instance when any transition from nontestimonial to testimonial occurs,[Footnote 10] and exclude “the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.” Id., at 829.

   Finally, our discussion of the Michigan Supreme Court’s misunderstanding of what Davis meant by “ongoing emergency” should not be taken to imply that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry. As Davis made clear, whether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the “primary purpose” of an interrogation. Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to “establish or prove past events potentially relevant to later criminal prosecution,” id., at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. Cf. id., at 826 (explaining that Confrontation Clause requirements cannot “readily be evaded” by the parties deliberately keeping the written product of an interrogation informal “instead of having the declarant sign a deposition”). The court below, however, too readily dismissed the informality of the circumstances in this case in a single brief footnote and in fact seems to have suggested that the encounter in this case was formal. 483 Mich., at 150, n. 16, 768 N. W. 2d, at 75, n. 16. As we explain further below, the questioning in this case occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation in Crawford. See Davis, 547 U. S., at 827.

C

   In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation. See, e.g., Davis, 547 U. S., at 827 (“[T]he nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past” (first emphasis added)). The Michigan Supreme Court did, at least briefly, conduct this inquiry. 483 Mich., at 144–147, 768 N. W. 2d, at 71–73.

   As the Michigan Supreme Court correctly recognized, id., at 140, n. 5, 768 N. W. 2d, at 69, n. 5, Davis requires a combined inquiry that accounts for both the declarant and the interrogator.[Footnote 11] In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers. To give an extreme example, if the police say to a victim, “Tell us who did this to you so that we can arrest and prosecute them,” the victim’s response that “Rick did it,” appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers.

   The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. See New York v. Quarles, 467 U. S. 649, 656 (1984) (“Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives—their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect”); see also Davis, 547 U. S., at 839 (Thomas, J., concurring in judgment in part and dissenting in part) (“In many, if not most, cases where police respond to a report of a crime, whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence”).

   Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution.[Footnote 12] Taking into account a victim’s injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim’s physical state.

   The dissent suggests, post, at 3–4 (opinion of Scalia, J.), that we intend to give controlling weight to the “intentions of the police,” post, at 4. That is a misreading of our opinion. At trial, the declarant’s statements, not the interrogator’s questions, will be introduced to “establis[h] the truth of the matter asserted,” Crawford, 541 U. S., at 60, n. 9, and must therefore pass the Sixth Amendment test. See n. 11, supra. In determining whether a declarant’s statements are testimonial, courts should look to all of the relevant circumstances. Even Justice Scalia concedes that the interrogator is relevant to this evaluation, post, at 3, and we agree that “[t]he identity of an interrogator, and the content and tenor of his questions,” ibid., can illuminate the “primary purpose of the interrogation.” The dissent, see post, at 3–5 (opinion of Scalia, J.), criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better, and courts making a “primary purpose” assessment should not be unjustifiably restrained from consulting all relevant information, including the statements and actions of interrogators.

   Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also the approach most consistent with our past holdings. E.g., Davis, 547 U. S., at 822–823, n. 1 (noting that “volunteered testimony” is still testimony and remains subject to the requirements of the Confrontation Clause).

IV

   As we suggested in Davis, when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the “primary purpose of the interrogation” by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.[Footnote 13] As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.

   Applying this analysis to the facts of this case is more difficult than in Davis because we do not have the luxury of reviewing a transcript of the conversation between the victim and the police officers. Further complicating our task is the fact that the trial in this case occurred before our decisions in Crawford and Davis. We therefore review a record that was not developed to ascertain the “primary purpose of the interrogation.”

   We first examine the circumstances in which the interrogation occurred. The parties disagree over whether there was an emergency when the police arrived at the gas station. Bryant argues, and the Michigan Supreme Court accepted, 483 Mich., at 147, 768 N. W. 2d, at 73, that there was no ongoing emergency because “there . . . was no criminal conduct occurring. No shots were being fired, no one was seen in possession of a firearm, nor were any witnesses seen cowering in fear or running from the scene.” Brief for Respondent 27. Bryant, while conceding that “a serious or life-threatening injury creates a medical emergency for a victim,” id., at 30, further argues that a declarant’s medical emergency is not relevant to the ongoing emergency determination.

   In contrast, Michigan and the Solicitor General explain that when the police responded to the call that a man had been shot and found Covington bleeding on the gas station parking lot, “they did not know who Covington was, whether the shooting had occurred at the gas station or at a different location, who the assailant was, or whether the assailant posed a continuing threat to Covington or others.” Brief for United States as Amicus Curiae 15; Brief for Petitioner 16; see also id., at 15 (“[W]hen an officer arrives on the scene and does not know where the perpetrator is, whether he is armed, whether he might have other targets, and whether the violence might continue at the scene or elsewhere, interrogation that has the primary purpose of establishing those facts to assess the situation is designed to meet the ongoing emergency and is nontestimonial”).

   The Michigan Supreme Court stated that the police asked Covington, “what had happened, who had shot him, and where the shooting had occurred.” 483 Mich., at 143, 768 N. W. 2d, at 71. The joint appendix contains the transcripts of the preliminary examination, suppression hearing, and trial testimony of five officers who responded to the scene and found Covington. The officers’ testimony is essentially consistent but, at the same time, not specific. The officers basically agree on what information they learned from Covington, but not on the order in which they learned it or on whether Covington’s statements were in response to general or detailed questions. They all agree that the first question was “what happened?” The answer was either “I was shot” or “Rick shot me.”[Footnote 14]

   As explained above, the scope of an emergency in terms of its threat to individuals other than the initial assailant and victim will often depend on the type of dispute involved. Nothing Covington said to the police indicated that the cause of the shooting was a purely private dispute or that the threat from the shooter had ended. The record reveals little about the motive for the shooting. The police officers who spoke with Covington at the gas station testified that Covington did not tell them what words Covington and Rick had exchanged prior to the shooting.[Footnote 15] What Covington did tell the officers was that he fled Bryant’s back porch, indicating that he perceived an ongoing threat.[Footnote 16] The police did not know, and Covington did not tell them, whether the threat was limited to him. The potential scope of the dispute and therefore the emergency in this case thus stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public.

   This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant’s house. Bryant’s argument that there was no ongoing emergency because “[n]o shots were being fired,” Brief for Respondent 27, surely construes ongoing emergency too narrowly. An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim. If an out-of-sight sniper pauses between shots, no one would say that the emergency ceases during the pause. That is an extreme example and not the situation here, but it serves to highlight the implausibility, at least as to certain weapons, of construing the emergency to last only precisely as long as the violent act itself, as some have construed our opinion in Davis. See Brief for Respondent 23–25.

   At no point during the questioning did either Covington or the police know the location of the shooter. In fact, Bryant was not at home by the time the police searched his house at approximately 5:30 a.m. 483 Mich., at 136, 768 N. W. 2d, at 67. At some point between 3 a.m. and 5:30 a.m., Bryant left his house. At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington.[Footnote 17]

   This is not to suggest that the emergency continued until Bryant was arrested in California a year after the shooting. Id., at 137, 768 N. W. 2d, at 67. We need not decide precisely when the emergency ended because Covington’s encounter with the police and all of the statements he made during that interaction occurred within the first few minutes of the police officers’ arrival and well before they secured the scene of the shooting—the shooter’s last known location.

   We reiterate, moreover, that the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the “primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.” Davis, 547 U. S., at 822. We turn now to that inquiry, as informed by the circumstances of the ongoing emergency just described. The circumstances of the encounter provide important context for understanding Covington’s statements to the police. When the police arrived at Covington’s side, their first question to him was “What happened?”[Footnote 18] Covington’s response was either “Rick shot me” or “I was shot,” followed very quickly by an identification of “Rick” as the shooter. App. 76. In response to further questions, Covington explained that the shooting occurred through the back door of Bryant’s house and provided a physical description of the shooter. When he made the statements, Covington was lying in a gas station parking lot bleeding from a mortal gunshot wound to his abdomen. His answers to the police officers’ questions were punctuated with questions about when emergency medical services would arrive. Id., at 56–57 (suppression hearing testimony of Officer Brown). He was obviously in considerable pain and had difficulty breathing and talking. Id., at 75, 83–84 (testimony of Officer McCallister); id., at 101, 110–111 (testimony of Sgt. Wenturine); id., at 126, 137 (testimony of Officer Stuglin). From this description of his condition and report of his statements, we cannot say that a person in Covington’s situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822.

   For their part, the police responded to a call that a man had been shot. As discussed above, they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred.[Footnote 19] The questions they asked—“what had happened, who had shot him, and where the shooting occurred,” 483 Mich., at 143, 768 N. W. 2d, at 71—were the exact type of questions necessary to allow the police to “ ‘assess the situation, the threat to their own safety, and possible danger to the potential victim’ ” and to the public, Davis, 547 U. S., at 832 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004)), including to allow them to ascertain “whether they would be encountering a violent felon,”[Footnote 20] Davis, 547 U. S., at 827. In other words, they solicited the information necessary to enable them “to meet an ongoing emergency.” Id., at 822.

   Nothing in Covington’s responses indicated to the police that, contrary to their expectation upon responding to a call reporting a shooting, there was no emergency or that a prior emergency had ended. Covington did indicate that he had been shot at another location about 25 minutes earlier, but he did not know the location of the shooter at the time the police arrived and, as far as we can tell from the record, he gave no indication that the shooter, having shot at him twice, would be satisfied that Covington was only wounded. In fact, Covington did not indicate any possible motive for the shooting, and thereby gave no reason to think that the shooter would not shoot again if he arrived on the scene. As we noted in Davis, “initial inquiries” may “often . . . produce nontestimonial statements.” Id., at 832. The initial inquiries in this case resulted in the type of nontestimonial statements we contemplated in Davis.

   Finally, we consider the informality of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. As the officers’ trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and, contrary to the dissent’s portrayal, post, at 7–9 (opinion of Scalia, J.), they did not conduct a structured interrogation. App. 84 (testimony of Officer McCallister) (explaining duplicate questioning, especially as to “what happened?”); id., at 101–102 (testimony of Sgt. Wenturine) (same); id., at 126–127 (testimony of Officer Stuglin) (same). The informality suggests that the interrogators’ primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

   Because the circumstances of the encounter as well as the statements and actions of 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, Covington’s identification and description of the shooter and the location of the shooting were not testimonial hearsay. The Confrontation Clause did not bar their admission at Bryant’s trial.

*  *  *

   

   For the foregoing reasons, we hold that Covington’s statements were not testimonial and that their admission at Bryant’s trial did not violate the Confrontation Clause. We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules. The judgment of the Supreme Court of Michigan is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

   

   Justice Kagan took no part in the consideration or decision of this case.

Footnote 1

 The Supreme Court of Michigan held that the question whether the victim’s statements would have been admissible as “dying declarations” was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances. The trial court ruled that the statements were admissible as excited utterances and did not address their admissibility as dying declarations. 483 Mich., at 153–154, 768 N. W. 2d, at 76–77. This occurred prior to our 2004 decision in Crawford v. Washington, 541 U. S. 36, where we first suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. Id., at 56, n. 6; see also Giles v. California, 554 U. S. 353, 358–359 (2008). We noted in Crawford that we “need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations.” 541 U. S., at 56, n. 6. Because of the State’s failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here. See also post, p. __ (Ginsburg, J., dissenting).

Footnote 2

We noted in Crawford that “[w]e use the term ‘interrogation’ in its colloquial, rather than any technical legal, sense,” and that “[j]ust as various definitions of ‘testimonial’ exist, one can imagine various definitions of ‘interrogation,’ and we need not select among them in this case.” 541 U. S., at 53, n. 4. Davis did not abandon those qualifications; nor do we do so here.

Footnote 3

 Davis explained that 911 operators “may at least be agents of law enforcement when they conduct interrogations of 911 callers,” and therefore “consider[ed] their acts to be acts of the police” for purposes of the opinion. 547 U. S., at 823, n. 2. Davis explicitly reserved the question of “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’ ” Ibid. We have no need to decide that question in this case either because Covington’s statements were made to police officers. The dissent also claims to reserve this question, see post, at 3, n. 1 (opinion of Scalia, J.), but supports one of its arguments by relying on King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202–203 (K. B. 1779), which involved statements made by a child to her mother—a private citizen—just after the child had been sexually assaulted. See also Crawford v. Washington, 541 U. S. 36, 69–70 (2004) (Rehnquist, C. J., concurring in judgment) (citing King v. Brasier for the different proposition that “out-of-court statements made by someone other than the accused and not taken under oath, unlike ex parte depositions or affidavits, were generally not considered substantive evidence upon which a conviction could be based”).

Footnote 4

 Contrary to the dissent’s excited suggestion, nothing in this opinion casts “favorable light,” post, at 11 (opinion of Scalia, J.), on the conduct of Sir Walter Raleigh’s trial or other 16th- and 17th-century English treason trials. The dissent is correct that such trials are “unquestionably infamous,” ibid., and our decision here confirms, rather than undermines, that assessment. See also n. 17, infra. For all of the reasons discussed in Justice Thomas’ opinion concurring in the judgment, the situation presented in this case is nothing like the circumstances presented by Sir Walter Raleigh’s trial. See post, p. __.

Footnote 5

 See Davis v. Washington, 547 U. S. 813, 823–824 (2006) (explaining the question before the Court as “whether the Confrontation Clause applies only to testimonial hearsay” and answering in the affirmative because “[a] limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its ‘core,’ but its perimeter”). See also post, at 2 (Scalia, J., dissenting).

Footnote 6

 Bryant suggests that Michigan is arguing for “a subjective analysis of the intent of the interrogator’s questioning.” Brief for Respondent 12. We do not read Michigan’s brief to be arguing for a subjective inquiry, and any such argument would be in error. We do not understand the dissent to disagree that the inquiry is objective.

Footnote 7

 This approach is consistent with our rejection of subjective inquiries in other areas of criminal law. See, e.g., Whren v. United States, 517 U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness subjectively in light of the officers’ actual motivations); New York v. Quarles, 467 U. S. 649, 655–656, and n. 6 (1984) (holding that an officer’s subjective motivation is irrelevant to determining the applicability of the public safety exception to Miranda v. Arizona, 384 U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980) (holding that a police officer’s subjective intent to obtain incriminatory statements is not relevant to determining whether an interrogation has occurred).

Footnote 8

 The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the “primary purpose of the interrogation” because of the effect it has on the parties’ purpose, not because of its actual existence.

Footnote 9

 Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest); see also Melendez-Diaz v. Massachusetts, 557 U. S. __, __ (2009) (slip op., at 18) (“Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial”); Giles v. California, 554 U. S., at 376 (noting in the context of domestic violence that “[s]tatements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules”); Crawford, 541 U. S., at 56 (“Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy”).

Footnote 10

    Recognizing the evolutionary potential of a situation in criminal law is not unique to the Confrontation Clause context. We noted in Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect, … trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” 547 U. S., at 829 (quoting New York v. Quarles, 467 U. S., at 658–659).

Footnote 11

 Some portions of Davis, however, have caused confusion about whether the inquiry prescribes examination of one participant to the exclusion of the other. Davis’ language indicating that a statement’s testimonial or nontestimonial nature derives from “the primary purpose of the interrogation,” 547 U. S., at 822 (emphasis added), could be read to suggest that the relevant purpose is that of the interrogator. In contrast, footnote 1 in Davis explains, “it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.” Id., at 822–823, n. 1. Bryant draws on the footnote to argue that the primary purpose inquiry must be conducted solely from the perspective of the declarant, and argues against adoption of a purpose-of-the-interrogator perspective. Brief for Respondent 10–13; see also Brief for Richard D. Friedman as Amicus Curiae 5–15. But this statement in footnote 1 of Davis merely acknowledges that the Confrontation Clause is not implicated when statements are offered “for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U. S., at 60, n. 9. An interrogator’s questions, unlike a declarant’s answers, do not assert the truth of any matter. The language in the footnote was not meant to determine how the courts are to assess the nature of the declarant’s purpose, but merely to remind readers that it is the statements, and not the questions, that must be evaluated under the Sixth Amendment.

Footnote 12

 In such a situation, the severe injuries of the victim would undoubtedly also weigh on the credibility and reliability that the trier of fact would afford to the statements. Cf. Advisory Committee’s Notes on Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (noting that although the “theory” of the excited utterance exception “has been criticized on the ground that excitement impairs [the] accuracy of observation as well as eliminating conscious fabrication,” it “finds support in cases without number” (citing 6 J. Wigmore, Evidence §1750 (J. Chadbourn rev. 1976))).

Footnote 13

 Of course the Confrontation Clause is not the only bar to admissibility of hearsay statements at trial. State and federal rules of evidence prohibit the introduction of hearsay, subject to exceptions. Consistent with those rules, the Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence. See Montana v. Egelhoff, 518 U. S. 37, 53 (1996) (plurality opinion) (“[E]rroneous evidentiary rulings can, in combination, rise to the level of a due process violation”); Dutton v. Evans, 400 U. S. 74, 96–97 (1970) (Harlan, J., concurring in result) (“[T]he Fifth and Fourteenth Amendments’ commands that federal and state trials, respectively, must be conducted in accordance with due process of law” is the “standard” by which to “test federal and state rules of evidence”).

Footnote 14

 See App. 76 (testimony of Officer McCallister); id., at 101, 113–114 (testimony of Sgt. Wenturine); id., at 127, 131–133 (testimony of Officer Stuglin). Covington told them that Rick had shot him through the back door of Rick’s house, id., at 127–128 (testimony of Officer Stuglin), located at the corner of Pennsylvania and Laura, id., at 102 (testimony of Sgt. Wenturine), and that Covington recognized Rick by his voice, id., at 128 (testimony of Officer Stuglin). Covington also gave them a physical description of Rick. Id., at 84–85, 93–94 (testimony of Officer McAllister); id., at 103, 115 (testimony of Sgt. Wenturine); id., at 134 (testimony of Officer Stuglin).

Footnote 15

 See id., at 114 (“Q Did he tell you what Rick said? A He said they were having a conversation. Q Did he tell you what Rick said? A He did not” (testimony of Sgt. Wenturine) (paragraph breaks omitted)); see also id., at 79 (testimony of Officer McAllister); id., at 128 (testimony of Officer Stuglin).

Footnote 16

 See id., at 127–128 (“A He said he’d went up, he went up to the back door of a house; that a person he said he knew, and he was knocking and he was knocking on the door he said he’d talked to somebody through the door. He said he recognized the voice. Q Did he say who it was that he recognized the voice of? A That’s when he told me it was, he said it was Rick a/k/a Buster. Q And did he say what the conversation was about at the door? A I don’t, I don’t believe so. Q All right. And did he say what happened there, whether or not they had a conversation or not, did he say what ended up happening? A He said what happened was that he heard a shot and then he started to turn to get off the porch and then another one and then that’s when he was hit by a gunshot” (testimony of Officer Stuglin) (paragraph breaks omitted)). Unlike the dissent’s apparent ability to read Covington’s mind, post, at 6 (opinion of Scalia, J.), we rely on the available evidence, which suggests that Covington perceived an ongoing threat.

Footnote 17

 It hardly bears mention that the emergency situation in this case is readily distinguishable from the “treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king,” post, at 11, about which Justice Scalia’s dissent is quite concerned.

Footnote 18

 Although the dissent claims otherwise, post, at 7 (opinion of Scalia, J.), at least one officer asked Covington something akin to “how was he doing.” App. 131 (testimony of Officer Stuglin) (“A I approached the subject, the victim, Mr. Covington, on the ground and had asked something like what happened or are you okay, something to that line. . . . Q So you asked this man how are you, how are you doing? A Well, basically it’s, you know, what’s wrong, you know” (paragraph breaks omitted)). The officers also testified about their assessment of Covington’s wounds. See id., at 35 (suppression hearing testimony of Officer Brown) (“[H]e had blood . . . on the front of his body”); id., at 75 (testimony of Officer McCallister) (“It appeared he had a stomach wound of a gunshot”); id., at 132 (testimony of Officer Stuglin) (“Q Did you see the wound? A Yes, I did. Q You had to move some clothing to do that? A Yes” (paragraph breaks omitted)).

Footnote 19

 Contrary to the dissent’s suggestion, post, at 8 (opinion of Scalia, J.), and despite the fact that the record was developed prior to Davis’ focus on the existence of an “ongoing emergency,” the record contains some testimony to support the idea that the police officers were concerned about the location of the shooter when they arrived on the scene and thus to suggest that the purpose of the questioning of Covington was to determine the shooter’s location. See App. 136 (testimony of Officer Stuglin) (stating that upon arrival officers questioned the gas station clerk about whether the shooting occurred in the gas station parking lot and about concern for safety); see also ibid. (testimony of Officer Stuglin) (“Q . . . So you have some concern, there may be a person with a gun or somebody, a shooter right there in the immediate area? A Sure, yes. Q And you want to see that that area gets secured? A Correct. Q For your safety as well as everyone else? A Correct” (paragraph breaks omitted)); id., at 82 (testimony of Officer McCallister). But see id., at 83 (cross-examination of Officer McAllister) (“Q You didn’t, you didn’t look around and say, gee, there might be a shooter around here, I better keep an eye open? A I did not, no. That could have been my partner I don’t know” (paragraph breaks omitted)).

Footnote 20

 Hiibel, like our post-Crawford Confrontation Clause cases, involved domestic violence, which explains the Court’s focus on the security of the victim and the police: they were the only parties potentially threatened by the assailant. 542 U. S., at 186 (noting that the case involved a “domestic assault”).

562 U. S. ____ (2011)
MICHIGAN V. BRYANT
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-150

MICHIGAN, PETITIONER v. RICHARD PERRY BRYANT

on writ of certiorari to the supreme court of michigan

[February 28, 2011]

   Justice Thomas, concurring in the judgment.

   I agree with the Court that the admission of Covington’s out-of-court statements did not violate the Confrontation Clause, but I reach this conclusion because Covington’s questioning by police lacked sufficient formality and solemnity for his statements to be considered “testimonial.” See Crawford v. Washington, 541 U. S. 36, 68 (2004).

   In determining whether Covington’s statements to police implicate the Confrontation Clause, the Court evaluates the “ ‘primary purpose’ ” of the interrogation. Ante, at 12. The majority’s analysiswhich relies on, inter alia, what the police knew when they arrived at the scene, the specific questions they asked, the particular information Covington conveyed, the weapon involved, and Covington’s medical conditionillustrates the uncertainty that this test creates for law enforcement and the lower courts. Ante, at 25–31. I have criticized the primary-purpose test as “an exercise in fiction” that is “disconnected from history” and “yields no predictable results.” Davis v. Washington, 547 U. S. 813, 839, 838 (2006) (opinion concurring in judgment in part and dissenting in part).

   Rather than attempting to reconstruct the “primary purpose” of the participants, I would 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 under the English bail and committal statutes passed during the reign of Queen Mary”). As the majority notes, Covington interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. Ante, at 19–20, 31. The police questioning was not “a formalized dialogue,” did not result in “formalized testimonial ma-terials” such as a deposition or affidavit, and bore no “in- dicia of solemnity.” Davis, supra, at 840, 837 (opinion of Thomas, J.); see also Giles v. California, 554 U. S. 353, 377–378 (2008) (Thomas, J., concurring). Nor is there any indication that the statements were offered at trial “in order to evade confrontation.” Davis, supra, at 840. This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate. Covington thus did not “bea[r] testimony” against Bryant, Crawford, supra, at 51, and the introduction of his statements at trial did not implicate the Confrontation Clause. I concur in the judgment.

SCALIA, J., DISSENTING
MICHIGAN V. BRYANT
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-150

MICHIGAN, PETITIONER v. RICHARD PERRY BRYANT

on writ of certiorari to the supreme court of michigan

[February 28, 2011]

   Justice Scalia, dissenting.

   Today’s tale—a story of five officers conducting suc-cessive 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. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.

I

A

   The Confrontation Clause of the Sixth Amendment, made binding on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” In Crawford, we held that this provision guarantees a defendant his common-law right to confront those “who ‘bear testimony’ ” against him. 541 U. S., at 51. A witness must deliver his testimony against the defendant in person, or the prosecution must prove that the witness is unavailable to appear at trial and that the defendant has had a prior opportunity for cross-examination. Id., at 53–54.

   Not all hearsay falls within the Confrontation Clause’s grasp. At trial a witness “bears testimony” by providing “ ‘[a] solemn declaration or affirmation . . . for the purpose of establishing or proving some fact.’ ” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The Confrontation Clause protects defendants only from hearsay statements that do the same. Davis v. Washington, 547 U. S. 813, 823–824 (2006). In Davis, we explained how to identify testimonial hearsay prompted by police questioning in the field. A statement is testimonial “when the circumstances objectively indicate … that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id., at 822. When, however, the circumstances objectively indicate that the declarant’s statements were “a cry for help [o]r the provision of information enabling officers immediately to end a threatening situation,” id., at 832, they bear little resemblance to in-court testimony. “No ‘witness’ goes into court to proclaim an emergency and seek help.” Id., at 828.

   Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both—when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.[Footnote 1] See Friedman, Grappling with the Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner from a statement to the police. See Crawford, supra, at 51. The hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.

   A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation. See Davis, supra, at 822–823, n. 1. An inquiry into an officer’s purposes would make no sense when a declarant blurts out “Rick shot me” as soon as the officer arrives on the scene. I see no reason to adopt a different test—one that accounts for an officer’s intent—when the officer asks “what happened” before the declarant makes his accusation. (This does not mean the interrogator is irrelevant. The identity of an interrogator, and the content and tenor of his questions, can bear upon whether a declarant intends to make a solemn statement, and envisions its use at a criminal trial. But none of this means that the interrogator’s purpose matters.)

   In an unsuccessful attempt to make its finding of emergency plausible, the Court instead adopts a test that looks to the purposes of both the police and the declarant. It claims that this is demanded by necessity, fretting that a domestic-violence victim may want her abuser briefly arrested—presumably to teach him a lesson—but not desire prosecution. See ante, at 22. I do not need to probe the purposes of the police to solve that problem. Even if a victim speaks to the police “to establish or prove past events” solely for the purpose of getting her abuser arrested, she surely knows her account is “potentially rel-evant to later criminal prosecution” should one ensue. Davis, supra, at 822.

   The Court also wrings its hands over the possibility that “a severely injured victim” may lack the capacity to form a purpose, and instead answer questions “reflexive[ly].” Ante, at 22. How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court’s proposed answer—to substitute the intentions of the police for the missing intentions of the declarant—cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more. The inquiry under Crawford turns in part on the actions and statements of a declarant’s audience only because they shape the declarant’s perception of why his audience is listening and therefore influence his purpose in making the declaration. See 541 U. S., at 51. But a person who cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to say. As far as I can tell, the Court’s substituted-intent theory “has nothing to be said for it except that it can sometimes make our job easier,” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. ___, ___ (2010) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 2).

   The Court claims one affirmative virtue for its focus on the purposes of both the declarant and the police: It “ameliorates problems that … arise” when declarants have “mixed motives.” Ante, at 21. I am at a loss to know how. Sorting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation. And the Court’s solution creates a mixed-motive problem where (under the proper theory) it does not exist—viz., where the police and the declarant each have one motive, but those motives conflict. The Court does not provide an answer to this glaringly obvious problem, probably because it does not have one.

   The only virtue of the Court’s approach (if it can be misnamned a virtue) is that it leaves judges free to reach the “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police’s intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is no guarantee at all.” Giles v. California, 554 U. S. 353, 375 (2008) (plurality).

B

   Looking to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit police officers questioned Covington about the shooting. Each asked him a similar battery of questions: “what happened” and when, App. 39, 126, “who shot” the victim,” id., at 22, and “where” did the shooting take place, id., at 132. See also id., at 113. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, id., at 134, “[h]ow much does he weigh,” ibid. what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington’s wounds.

   From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch. See 483 Mich. 132, 135–136, 768 N.W. 2d 65, 67 (2009); App. 105. Bryant had not confronted him face-to-face before he was mortally wounded, instead shooting him through a door. See 483 Mich., at 136–137, 768 N.W. 2d, at 67. Even if Bryant had pursued him (unlikely), and after seeing that Covington had ended up at the gas station was unable to confront him there before the police arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington was surrounded by five armed police officers. And Covington knew the shooting was the work of a drug dealer, not a spree killer who might randomly threaten others. Id., at 135, 137, 768 N.W. 2d, at 67.

   Covington’s knowledge that he had nothing to fear differs significantly from Michelle McCottry’s state of mind during her “frantic” statements to a 911 operator at issue in Davis, 547 U. S., at 827. Her “call was plainly a call for help against a bona fide physical threat” describing “events as they were actually happening.” Ibid. She did not have the luxuries of police protection and of time and space separating her from immediate danger that Covington enjoyed when he made his statements. See id., at 831.

   Covington’s pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid.[Footnote 2] They instead primarily asked questions with little, if any, relevance to Covington’s dire situation. Police, paramedics, and doctors do not need to know the address where a shooting took place, the name of the shooter, or the shooter’s height and weight to provide proper medical care. Underscoring that Covington understood the officers’ investigative role, he interrupted their interrogation to ask “when is EMS coming?” App. 57. When, in other words, would the focus shift to his medical needs rather than Bryant’s crime?

   Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning. Preventing the admission of “weaker substitute[s] for live testimony at trial” such as this, id., at 828 (internal quotation marks omitted), is precisely what motivated the Framers to adopt the Confrontation Clause and what motivated our decisions in Crawford and in Hammon v. Indiana, decided with Davis. Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.

C

   Worse still for the repute of today’s opinion, this is an absurdly easy case even if one (erroneously) takes the interrogating officers’ purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None—absolutely none—of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.[Footnote 3] To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?

   But do not rely solely on my word about the officers’ primary purpose. Listen to Sergeant Wenturine, who candidly admitted that he interrogated Covington because he “ha[d] a man here that [he] believe[d] [was] dying [so he was] gonna find out who did this, period.” App. 112. In short, he needed to interrogate Covington to solve a crime. Wenturine never mentioned an interest in ending an ongoing emergency.

   At the very least, the officers’ intentions turned investigative during their 10-minute encounter with Covington, and the conversation “evolve[d] into testimonial statements.” Davis, 547 U. S., at 828 (internal quotation marks omitted). The fifth officer to arrive at the scene did not need to run straight to Covington and ask a battery of questions “to determine the need for emergency assistance,” Ibid. He could have asked his fellow officers, who presumably had a better sense of that than Covington—and a better sense of what he could do to assist. No, the value of asking the same battery of questions a fifth time was to ensure that Covington told a consistent story and to see if any new details helpful to the investigation and eventual prosecution would emerge. Having the testimony of five officers to recount Covington’s consistent story undoubtedly helped obtain Bryant’s conviction. (Which came, I may note, after the first jury could not reach a verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)

D

   A final word about the Court’s active imagination. The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and lo-cation after the shooting [are] unknown, … mortally wound[s]” one individual “within a few blocks and [25] minutes of the location where the police” ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17–18, 27, 30. Nothing suggests the five officers in this case shared the Court’s dystopian[Footnote 4] view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent of murders involve a single victim,[Footnote 5] it is much more likely—indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investi-gation into a past crime with no ongoing or immediate consequences.

   The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” Ante, at 27. It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later. Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large—especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a “potential threat to … the public” persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plausible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers’ recollection at trial of the witnesses’ accusations.

   The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation. For example, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202–203 (K. B. 1779), held inadmissible a mother’s account of her young daughter’s statements “immediately on her coming home” after being sexually assaulted. The daughter needed to testify herself. But today’s majority presumably would hold the daughter’s account to her mother a nontestimonial statement made during an ongoing emergency. She could not have known whether her attacker might reappear to attack again or attempt to silence the lone witness against him. Her mother likely listened to the account to assess the threat to her own safety and to decide whether the rapist posed a threat to the community that required the immediate intervention of the local authorities. Cf. ante, at 29–30. Utter nonsense.

   The 16th- and 17th-century English treason trials that helped inspire the Confrontation Clause show that today’s decision is a mistake. The Court’s expansive definition of an “ongoing emergency” and its willingness to consider the perspective of the interrogator and the declarant cast a more favorable light on those trials than history or our past decisions suggest they deserve. Royal officials conducted many of the ex parte examinations introduced against Sir Walter Raleigh and Sir John Fenwick while investigating alleged treasonous conspiracies of unknown scope, aimed at killing or overthrowing the King. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 21–22, and n. 11. Social stability in 16th- and 17th-century England depended mainly on the continuity of the ruling monarch, cf. 1 J. Stephen, A History of the Criminal Law of England 354 (1883), so such a conspiracy posed the most pressing emergency imaginable. Presumably, the royal officials investigating it would have understood the gravity of the situation and would have focused their interrogations primarily on ending the threat, not on generating testimony for trial. I therefore doubt that under the Court’s test English officials acted improperly by denying Raleigh and Fenwick the opportunity to confront their accusers “face to face,” id., at 326.

   Under my approach, in contrast, those English trials remain unquestionably infamous. Lord Cobham did not speak with royal officials to end an ongoing emergency. He was a traitor! He spoke, as Raleigh correctly observed, to establish Raleigh’s guilt and to save his own life. See 1 D. Jardine, Criminal Trials 435 (1832). Cobham’s statements, when assessed from his perspective, had only a testimonial purpose. The same is true of Covington’s statements here.

II

A

   But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.

   According to today’s opinion, the Davis inquiry into whether a declarant spoke to end an ongoing emergency or rather to “prove past events potentially relevant to later criminal prosecution,” 547 U. S., at 822, is not aimed at answering whether the declarant acted as a witness. Instead, the Davis inquiry probes the reliability of a declarant’s statements, “[i]mplicit[ly]” importing the excited-utterances hearsay exception into the Constitution. Ante, at 14–15. A statement during an ongoing emergency is sufficiently reliable, the Court says, “because the prospect of fabrication … is presumably significantly diminished,” so it “does not [need] to be subject to the crucible of cross-examination.” Id., at 14.

   Compare that with the holding of Crawford: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U. S., at 68–69. Today’s opinion adopts, for emergencies and faux emergencies at least, the discredited logic of White v. Illinois, 502 U. S. 346, 355–356, and n. 8 (1992), and Idaho v. Wright, 497 U. S. 805, 819–820 (1990). White is, of course, the decision that both Crawford and Davis found most incompatible with the text and history of the Confrontation Clause. See Davis, supra, at 825; Crawford, supra, at 58, n. 8. (This is not to say that that “reliability” logic can actually justify today’s result: Twenty-five minutes is plenty of time for a shooting victim to reflect and fabricate a false story.)

   The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial. Ante, at 11–12. Ohio v. Roberts, 448 U. S. 56 (1980) said something remarkably similar: An out-of-court statement is admissible if it “falls within a firmly rooted hearsay exception” or otherwise “bears adequate ‘indicia of reliability.’ ” Id., at 66. We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause. See 541 U. S., at 54, 60, 63–65, 67–68. The arguments in Raleigh’s infamous 17th-century treason trial contained full debate about the reliability of Lord Cobham’s ex parte accusations, see Raleigh’s Case, 2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29 (1603); that case remains the canonical example of a Confrontation Clause violation, not because Raleigh should have won the debate but because he should have been allowed cross-examination.

   The Court attempts to fit its resurrected interest in reliability into the Crawford framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator of whether “a statement is … an out-of-court substitute for trial testimony.” Ante, at 11. That is patently false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial statements alike come in varying degrees of reliability. An eyewitness’s statements to the police after a fender-bender, for example, are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable.

   The Court suggests otherwise because it “misunderstands the relationship” between qualification for one of the standard hearsay exceptions and exemption from the confrontation requirement. Melendez-Diaz v. Massachusetts, 557 U. S. ___, ___ (2009) (slip op., at 18). That relationship is not a causal one. Hearsay law exempts business records, for example, because businesses have a financial incentive to keep reliable records. See Fed. Rule Evid. 803(6). The Sixth Amendment also generally admits business records into evidence, but not because the records are reliable or because hearsay law says so. It admits them “because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not” weaker substitutes for live testimony. Melendez-Diaz, 557 U. S., at ___ (slip op., at 18). Moreover, the scope of the exemption from confrontation and that of the hearsay exceptions also are not always coextensive. The reliability logic of the business-record exception would extend to records maintained by neutral parties providing litigation-support services, such as evidence testing. The Confrontation Clause is not so forgiving. Business records prepared specifically for use at a criminal trial are testimonial and require confrontation. See ibid.

   Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.

B

   The Court recedes from Crawford in a second significant way. It requires judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability. 541 U. S., at 63, 68. Where the prosecution cries “emergency,” the admissibility of a statement now turns on “a highly context-dependent inquiry,” ante, at 16, into the type of weapon the defendant wielded, see ante, at 17; the type of crime the defendant committed, see ante, at 12, 16–17; the medical condition of the declarant, see ante, at 17–18; if the declarant is injured, whether paramedics have arrived on the scene, see ante, at 20; whether the encounter takes place in an “exposed public area,” ibid.; whether the encounter appears disorganized, see ibid.; whether the declarant is capable of forming a purpose, see ante, at 22; whether the police have secured the scene of the crime, see ante, at 28; the formality of the statement, see ante, at 19; and finally, whether the statement strikes us as reliable, see ante, at 11–12, 14–15. This is no better than the nine-factor balancing test we rejected in Crawford, 541 U. S., at 63. I do not look forward to resolving conflicts in the future over whether knives and poison are more like guns or fists for Confrontation Clause purposes, or whether rape and armed robbery are more like murder or domestic violence.

   It can be said, of course, that under Crawford analysis of whether a statement is testimonial requires consideration of all the circumstances, and so is also something of a multifactor balancing test. But the “reliability” test does not replace that analysis; it supplements it. As I understand the Court’s opinion, even when it is determined that no emergency exists (or perhaps before that determination is made) the statement would be found admissible as far as the Confrontation Clause is concerned if it is not testimonial.

   In any case, we did not disavow multifactor balancing for reliability in Crawford out of a preference for rules over standards. We did so because it “d[id] violence to” the Framers’ design. Id., at 68. It was judges’ open-ended determination of what was reliable that violated the trial rights of Englishmen in the political trials of the 16th and 17th centuries. See, e.g., Throckmorton’s Case, 1 How. St. Tr. 869, 875–876 (1554); Raleigh’s Case, 2 How. St. Tr., at 15–16, 24. The Framers placed the Confrontation Clause in the Bill of Rights to ensure that those abuses (and the abuses by the Admiralty courts in colonial America) would not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security. See Crawford, supra, at 67–68; cf. Hamdi v. Rumsfeld, 542 U. S. 507, 576–578 (2004) (Scalia, J., dissenting).

*  *  *

   Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

   For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

Footnote 1

 I remain agnostic about whether and when statements to nonstate actors are testimonial. See Davis v. Washington, 547 U. S. 813, 823, n. 2 (2006).

Footnote 2

 Officer Stuglin’s testimony does not undermine my assessment of the officers’ behavior, although the Court suggests otherwise. See ante, at 28, n. 18. Officer Stuglin first testified that he “asked something like what happened or are you okay, something to that line.” App., 131. When pressed on whether he asked “how are you doing?,” he responded, “Well, basically … what’s wrong.” Ibid. Other officers were not so equivocal: They admitted they had no need to “ask him how he was doing. … It was very obvious how he was doing.” Id., at 110; see also id., at 19.

Footnote 3

 The Court cites Officer Stuglin’s testimony that “I think [Brown and Pellerito] did a little bit of both” joining the interrogation and helping to secure the scene. Id., at 135–136. But the point is not whether they did both; it is whether they moved to secure the area first. No officer’s testimony suggests this. Pellerito testified that he, Stuglin, and Brown arrived at the scene at roughly the same time and all three immediately went to Covington. See id., at 17–18. The testimony of Brown and McCallister corroborate that account. See id., at 34–36, 79–82.

Footnote 4

 The opposite of utopian. The word was coined by John Stuart Mill as a caustic description of British policy. See 190 Hansard’s Parliamentary Debates, Third Series 1517 (3d Ser. 1868); 5 Oxford English Dictionary 13 (2d ed. 1989).

Footnote 5

 See Federal Bureau of Investigation, Crime in the United States, 2009: Expanded Homicide Data Table 4, Murder by Victim/Offender Situations, 2009 (Sept. 2010), online at http://www2.fbi.gov/ucr/ cius2009/offenses/expanded_information/data/shrtable_04.html (as visited Feb. 25, 2011, and available in Clerk of Court’s case file).

562 U. S. ____ (2011)
MICHIGAN V. BRYANT
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-150

MICHIGAN, PETITIONER v. RICHARD PERRY BRYANT

on writ of certiorari to the supreme court of michigan

[February 28, 2011]

   Justice Ginsburg, dissenting.

   I agree with Justice Scalia that Covington’s statements were testimonial and that “[t]he declarant’s intent is what counts.” Ante, at 2 (dissenting opinion). Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, Justice Scalia rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial,” ante, at 14 (emphasis deleted).

   I would add, however, this observation. In Crawford v. Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation requirement: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in Giles v. California, 554 U. S. 353, 358 (2008); see id., at 361–362, 368, applied to statements made by a person about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See 483 Mich. 132, 156–157, 768 N. W. 2d 65, 78 (2009). The matter, therefore, is not one the Court can address in this case.

Print this transcript Transcript: 

ORAL ARGUMENT OF LORI B. PALMER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 09-150, Michigan v. Bryant.

Ms. Palmer.

Ms Palmer: Mr. Chief Justice, and may it please the Court:

Formality is indeed essential to testimonial utterance.

So said this Court in Davis, which dealt with two related situations: On-the-scene questioning by police officers and questions by 9-1-1 operators.

This Court noted that such questioning may often lack the formality essential to testimonial utterance, as officers called to investigate need to know whom they are dealing with in order to assess a situation, the threat to themselves, and the potential danger to possible victims.

The question here is whether those same assessing questions -- "what happened", "who did it", "where did it happen" -- asked by police officers who, upon receiving a radio report of a man shot, found a wounded man lying on the ground next to a car at a gas station, bleeding, visibly in pain and having trouble talking -- were made in a formal context sufficiently similar to a magisterial examination so that the answers by the dying -- by the dying victim are testimonial.

Chief Justice John G. Roberts: Well, it can't all be the formality of the context.

I mean, if the police came in and said, well, has this person -- Rick, I guess -- sold you drugs before, what was the -- what was the quantity, and all those sorts of questions, the answers to that would be testimonial, despite the same lack of formality.

Ms Palmer: Which is where the ongoing emergency test from Davis comes into play.

The questions need to be -- the primary purpose needs to be to meet an ongoing emergency.

So assessing the risk, assessing the danger to others.

And any questions beyond that could arguably be testimonial, while--

Justice Ruth Bader Ginsburg: How do we--

Justice Antonin Scalia: Forget about formality, in other words.

Formality or no formality has nothing to do with it.

Ms Palmer: --Well, under Davis, you said -- that was how you tested the formality.

If -- the Davis test is a gauge of formality.

If there are questions that respond to ongoing emergency, then this Court has said that that is an indicator that it lacks the formality.

Justice Ruth Bader Ginsburg: --How do we tell that?

Because it seems to me, here, if you want to know what happened, you would ask the very same questions.

You are saying the questions are relevant also to securing the situation.

But what -- what -- what different questions would you ask if you wanted to find out what happened?

What was the past -- what were the past events?

I mean, I'm trying to understand how you take these questions and say we can put a label on them here that says, well, this is to control an emergency situation, versus we want to know what happened historically.

Ms Palmer: Well, I think that what you have to do is look at the -- I mean, obviously, things can have dual purposes and often will.

You have to look at the primary purpose here.

And you said in Davis it's an objective -- what would an objective person viewing this test--

Justice Sonia Sotomayor: But whose primary purpose is it?

I mean, the victim here knew that the incident hadn't happened there.

There was nothing he had to share with the police, because they could see he was bleeding from his stomach and he had been shot.

He apparently didn't fear any threat, or there doesn't seem to be any circumstances suggesting an immediate threat to him.

He had driven away.

Rick didn't know where he had gone.

So what's the ongoing emergency to the victim?

Ms Palmer: --I think here, in this line in Davis, you said the primary purpose is the questioning is what you look at in Davis.

And we are not asking you to overrule that.

Justice Sonia Sotomayor: Well, wait a minute.

What is the primary -- isn't -- doesn't -- isn't there a footnote that says the primary purpose of the declarant is what is at issue?

Justice Antonin Scalia: That is -- that is what it says.

Ms Palmer: What--

Justice Antonin Scalia: It's the -- it's the -- it's the purpose of the declarant, not of the questioner.

Ms Palmer: --But the formality indicators that the Court delineated in Davis did not include whether the answers to the questions were for the purpose of establishing past events, but whether the primary purpose of the questions were for those ends.

The -- the question is one of context, not content, as you noticed in -- as you said in Crawford.

Justice Sonia Sotomayor: Well, in Davis, the issue is: Why was the declarant talking?

What you were trying to do was to figure out whether the declarant was seeking help or attempting to get someone arrested.

That's how I read the situation.

The questions provided context for that.

Are you seeking immediate ongoing help or are you talking about an event, attempting to get the police to intercede and arrest the person?

Isn't that a fair reading of that case?

Ms Palmer: Yes.

And in Davis, you said also that there comes a point where courts can tell when the questioning takes on a different tone and the answers might become testimonial.

When the questioning seeks answers that go beyond meeting the emergency, then courts can properly find there's a point where the non-testimonial statements end and the testimonial statements begin.

Justice Samuel Alito: In a situation like this, do you think it's meaningful to ask what the primary purpose of the victim was when he responded to the police and said who shot him?

You have a man who has just been shot.

He has a wound that's going to turn out to be fatal, and he's lying there on the ground bleeding profusely, and he says: My primary purpose in saying this is so they can respond to an ongoing emergency?

No, but I also have the purpose of giving them information that could be used at trial, but it's a little less -- that's a little bit less my purpose than responding to the ongoing emergency.

It seems like it's totally artificial.

Ms Palmer: Yes.

And I think it -- any time you ask the Court to delve into the subjective intent of someone who is not present and cannot testify and cannot tell you, it necessarily complicates things.

And I think it takes away--

Justice Antonin Scalia: What possible response to an ongoing emergency could he have had in mind?

What possible response to an ongoing emergency?

Ms Palmer: --He did ask--

Justice Antonin Scalia: He was bleeding to death and he could have said, you know, I'm bleeding to death.

Now, that statement would -- would be, you know, suggesting an ongoing emergency.

But giving the name of the person who shot him, where he was shot, what does that have anything -- how does that have anything to do with an ongoing emergency?

Ms Palmer: --The police, upon responding to the scene, don't know that this emergency is limited--

Justice Antonin Scalia: But he does.

Ms Palmer: --to that person.

Justice Antonin Scalia: But he does.

Ms Palmer: Which is why you have to look at the entire context.

Justice Antonin Scalia: He knows -- he knows that his -- that the person that shot him is nowhere near there.

He knows that -- that he drove, what -- how far away was it?

Six blocks or -- a good distance from where the shooter was.

He knows all of that.

The only reason he could be giving the name of the person who shot him is so that person could be apprehended and punished.

Ms Palmer: And yet that subjective mindset doesn't affect the formality.

It doesn't change the fact that this is an informal situation.

You don't have the--

Justice Ruth Bader Ginsburg: Suppose he had survived.

Suppose Covington had survived instead of died.

And then the prosecutor says, I want to introduce this evidence against Bryant.

Would you say that, yes, it's nontestimonial, so it comes in?

Ms Palmer: --He would have to be unavailable for it to come in.

Justice Ruth Bader Ginsburg: But why, if it's nontestimonial?

Ms Palmer: Well, under -- as the way the current jurisprudence is, he would have to be unavailable.

If it's not testimonial, I do not think it would offend the Confrontation Clause for it to come in.

Justice Ruth Bader Ginsburg: If you said -- you said it's -- you are typing it nontestimonial.

It goes to emergency situations.

So I'm saying: Would that carry over to the man survived and the prosecutor says, I don't need to put him on the stand so he can be cross-examined; I have got nontestimonial evidence that I can put in?

Would it become testimonial, then, if he survived?

Ms Palmer: No, I don't think it would change the nature of what happened at the time.

I do think, though, that is why we have said the Confrontation Clause is not some sort of super-hearsay rule and we will allow the Government--

Justice Ruth Bader Ginsburg: But then -- then your answer is that if we typed it as nontestimonial in my trial scenario, it would be nontestimonial, it comes in.

Ms Palmer: --As long as it was not somehow barred by the rules of hearsay, which I believe it would be.

Chief Justice John G. Roberts: I'm confused on what -- what Davis focuses our inquiry on.

Is it the purpose of the interrogators or is it the purpose of the declarants?

We say the 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 past events.

The -- the focus seems to be on the purpose of the interrogation, which seems to be the question of what the police thought, not what the -- the person dying thought.

Ms Palmer: That's correct.

And I understand there is the footnote stating that, obviously, the declarant's statements are at issue.

If there were no declarant, then--

Chief Justice John G. Roberts: Yes, I mean--

Ms Palmer: --there wouldn't be an issue.

Chief Justice John G. Roberts: --But what the footnote -- I'm sorry to interrupt you, but what the footnote says is in the final analysis, it's the declarant's statements, not the interrogator's question, that the Confrontation Clause requires us to evaluate.

So which -- I guess, which is it?

Ms Palmer: I think what happens is the interrogator's statements are not what are going to be determined to be testimonial or nontestimonial.

They provide a glimpse into the context.

So we can determine whether those statements that are at issue are testimonial or nontestimonial.

They are one way to determine the formality of the situation.

Justice Antonin Scalia: One way to evaluate those statements is what they are made in response to.

If they are made in response to a certain type of police inquiry, they are more likely to be testimonial.

And another kind -- you know, are you dying?

They are more likely not to be testimonial.

But it is ultimately the statements that -- that we have to evaluate, whether they are testimonial or not.

Ms Palmer: Correct.

But as--

Chief Justice John G. Roberts: Well, then, how does that apply?

The officer says, what happened?

And the -- the declarant says, Rick shot me.

Now, is that testimonial or not?

Because the declarant knows he is 6 miles away.

It's not going to help them solve an emergency, but the police don't know that.

Ms Palmer: --Right, which is why when I think you look for the purpose of the questioning here, it's to respond to an ongoing emergency.

The police don't know--

Justice Antonin Scalia: Well, if it was an emergency, he wouldn't have asked, "What happened"?

He would ask, "What is happening"?

Ms Palmer: --I don't--

Justice Antonin Scalia: To ask what happened is to ask the declarant to describe past events, which is testimonial.

Ms Palmer: --I don't think that you can make that kind of bright-line rule.

I think here when you have a man bleeding out on a sidewalk and you don't know -- is there an assailant behind him; is there -- are there victims somewhere else; is, you know, this a wanted felon -- I think there is an ongoing emergency until you can determine--

Justice Anthony Kennedy: And you -- you do not know if the man is running amok and threatening to shoot other people or if -- if he is drunk, if he is on a rampage, if it's a college campus, then it's -- it's -- it's a sniper.

You just don't know.

Ms Palmer: --Right.

But--

Justice Antonin Scalia: If you were worried about that, do you run immediately over to the person lying on the ground or do you examine the gas station first, rather than expose yourself to the -- to the shooter that you think is still in the gas station?

The -- the behavior of the police here gave no indication that they thought they were in danger immediately, and -- and were interrogating this person in order to assess the danger to them.

That wasn't what they were after.

Ms Palmer: --Well, to be fair, this was before Crawford was answered.

The questions were asked were to determine whether this was an excited utterance, and the questions that we would like to know now were: What did you do for your safety?

How were you worried?

What were -- that was not at issue--

Justice Anthony Kennedy: Well, I'm not sure that policemen should read Crawford before they perform their -- their peacekeeping duties.

The -- no -- no one questions the right of the police to -- to ask these questions and to use the word either "happens" or "happening" or "happened".

The question is whether or not the answers are, later, admissible.

Those are two different inquiries.

Ms Palmer: --Correct.

And I was simply saying the record would have been better--

Justice Anthony Kennedy: And, of course, Crawford rejects reliability as a criteria.

Ms Palmer: --Yes.

So our position here is that you cannot evaluate an ongoing emergency from hindsight.

When police -- you know, arrive on a scene and find a wounded man bleeding, they don't know the circumstances until they can find out what happened, who did it and where did it happen, and try to assess the risk of harm, as you said in Davis, to themselves, to the victim, and to others.

Justice Sonia Sotomayor: But what does that have to do -- we are back to the reliability test, really, because they didn't do anything wrong.

They were trying to assess the situation.

But that's just what they do when any report of criminal activity occurs.

That's a different inquiry than the inquiry of: Why should that statement be permitted to be introduced at trial?

It goes to the very essence of reliability.

Was the statement made under circumstances that would suggest an intent to testify?

That's really what you're getting at, isn't it?

Ms Palmer: No.

No.

Justice Sonia Sotomayor: Well, you are, because you were trying to pigeonhole yourself into an ongoing emergency that suggests that in those situations, whatever the person is saying is okay, because it was done to assess an emergency situation and not done for purposes of catching somebody, primary purpose of catching somebody.

Ms Palmer: Which is what this Court said in Davis, and said that that was not related to reliability but to formality there, and that that was not a formal thing, such as a magisterial examination.

We are not trying to question or in any way change the test already set forth by this Court in Davis.

We agree with that test.

We simply disagree with the application by the lower court of that test here and the limitation it put on it.

Justice Ruth Bader Ginsburg: So are you saying that the rule would be that whenever the perpetrator may be in the vicinity, then the police are pursuing an urgent emergency situation rather than trying to find out what had -- the nature of the crime?

Ms Palmer: We are not saying that any time there is a perpetrator at large, there is automatically an ongoing emergency until that person is caught.

What we are saying is that preliminary inquiries on the scene to try to determine who the perpetrator is and where it might be would be--

Justice Sonia Sotomayor: For all crimes, or only for shooting crimes or knifing crimes?

For explosions?

What kinds of crimes would qualify?

Ms Palmer: --I think, obviously, violent crimes raise ongoing emergencies, emergencies to which -- more than others.

There could also be contexts in which it would apply to other crimes.

Justice Antonin Scalia: So at least whenever the police come upon somebody who has been the victim of a violent crime, whatever interrogation they conduct could plausibly be to -- to make sure that the person is not still nearby, and that testimony will always be admissible?

Ms Palmer: It is preliminary questions designed to assess the risk to themselves, the public, and--

Justice Antonin Scalia: No, no, no.

It's not designed to assess the risk.

You don't know what they are designed to do.

These policemen didn't say: We are assessing the risk.

They just asked the questions.

And that's what is going to happen in future cases.

And you are saying, whenever policemen come upon a victim of violent crime and said: Who did it?

What's his name?

All of that will always be admissible, because they -- they could be assessing the risk, right?

Ms Palmer: --I think if the context shows that's the primary purpose, then yes, that will often be the case.

Justice Stephen G. Breyer: What do you mean?

How could it possibly be admissible.

First, there has to be a degree of formality, as the Court held in Hammon, sitting in the kitchen; and second, it has to satisfy State hearsay tests.

So unless it's an exception to the hearsay rule, it is not admissible.

Ms Palmer: Well, here, for instance, it was admitted as an excited utterance.

Justice Stephen G. Breyer: Well, of course there are exceptions.

There could, in fact, there could be a coconspirator exception.

There could be a dying declaration exception, but what we are talking about is whether the Constitution keeps it out, even though State law -- because, say it's a coconspirator exception -- would permit it in.

So the answer is no, it's not the case that whenever you come across a victim of a crime and ask him questions, it's going to be admissible.

It depends.

The State hears the law, the exception, and whether there is a degree of formality, as there would in Hammon.

Justice Antonin Scalia: Only when he's excited, right?

Only when the victim who has been the object of a violent crime is excited.

Or if State law doesn't apply and we are dealing with a Federal crime and Federal officers, right, and trial in Federal court?

And in that case, what Justice Breyer just said would not apply.

Ms Palmer: That's correct.

And I--

Justice Stephen G. Breyer: It would not apply?

There are -- there isn't a Federal hearsay rule?

And there are not exceptions that you have to satisfy?

Ms Palmer: --Your -- I--

Justice Stephen G. Breyer: I thought there were, in my copy of the Federal Rules of Evidence.

Ms Palmer: --Yes.

And I did misspeak.

What I meant to say was that it would be non-testimonial, not that it would always be admissible.

Justice Ruth Bader Ginsburg: In the -- if you had the benefit of hindsight and this trial occurred before Davis, and so the prosecutor went on excited utterance, would you have instead tried to make a case that this was a dying declaration?

Ms Palmer: Absolutely.

I will reserve whatever time I have left.

Chief Justice John G. Roberts: Thank you, Counsel.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER, ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ms Kruger: Mr. Chief Justice, and may it please the Court:

As we understand the rule of Davis v. Washington, it is a rule that focuses on the primary purpose behind police interrogation, because it's designed for a particular purpose: Not to provide a comprehensive definition of the term "testimonial", but rather to identify those statements that are testimonial because they are made in response to police interrogation.

When the objective primary purpose of that interrogation is to enable police to meet an ongoing emergency rather than to collect evidence for future possible prosecution, the statements that are given in response to that interrogation are non-testimonial.

Justice Antonin Scalia: Do you distinguish between collecting evidence for a future prosecution and collecting evidence in order to pursue and arrest the felon?

Do you distinguish those two?

And you can say these police -- these policemen weren't collecting evidence for a future prosecution; they just wanted to know who the shooter was and where he was so they could go get him.

Would that -- would that not be collecting evidence for a future prosecution?

Ms Kruger: I think that there are often multiple reasons, particularly in the wake of a violent event like a shooting, why--

Justice Antonin Scalia: But you say it has to be for the purpose of a future prosecution.

Just -- just in order to an arrest and bring into jail the person who committed this crime, that doesn't qualify?

Ms Kruger: --I think that what would qualify under the Davis test is if police need to apprehend the person, not for purposes of bringing the person into the criminal justice system, but rather to neutralize an ongoing threat that they present to the community at large, as is often the case when somebody has just proven themselves both capable and--

Justice Antonin Scalia: When does that not exist in the case of a violent crime?

When does that not exist?

Ms Kruger: --I think it makes a significant difference--

Justice Antonin Scalia: There is a violent criminal out there.

Ms Kruger: --Justice Scalia, I think it makes a significant difference whether we are talking about a -- an act of violence like a shooting, somebody who has used a weapon that is capable of inflicting deadly harm on multiple victims in a short period of time, or someone who has used their fists, like the alleged perpetrators--

Justice Antonin Scalia: Okay.

So if you use a gun, a knife, or a machinegun, whatever the victim says gets admitted into evidence, because the police could -- could be not -- not trying to get evidence, but just trying to safeguard society against the -- the felon on the loose?

Ms Kruger: --I don't think that we would draw the rules that broadly, Justice Scalia.

Justice Antonin Scalia: I thought that's how you just described it.

Ms Kruger: Well, I think that in this situation, we have police arriving on the scene to discover a man who has been recently shot; as it turns, fatally.

Justice Antonin Scalia: Yes.

Ms Kruger: They need to find out in that situation--

Justice Antonin Scalia: Who did it.

Ms Kruger: --They need to find out who did it so that they make sure that person isn't continuing to threaten other people on the scene.

Justice Antonin Scalia: That's always the case.

That's such a phony evasion of what the purpose of a testimonial rule is.

That's always going to be the case, at least when there is a violent crime.

Ms Kruger: Well, I think--

Justice Antonin Scalia: And you may as well take Crawford and throw it out, in -- in the majority of serious cases, if that's going to be your rule.

Ms Kruger: --I don't think that that's the case at all, Justice Scalia.

I think it's actually very much consistent with what this Court said in Davis.

It may very well have been that the subjective purpose of the 9-1-1 operator was also to bring the perpetrator in that case to justice.

But this Court, I think quite properly, recognized that in an emergency situation, the attention of both law enforcement and the declarant is quite properly going to be focused on dealing with the emergency at hand and is not going to be made of the kind of focused understanding of--

Justice Antonin Scalia: The crime was ongoing in -- in Davis when -- when the woman was on the phone with the operator.

It was ongoing.

She was seeking help from the emergency that was occurring to her at that moment.

There is nothing like that here.

Ms Kruger: --It is true that that is a factual distinction between this case and Davis, but we don't think that it's one that makes a dispositive--

Justice Anthony Kennedy: Did the police know that that was the case when they began the questioning?

Did the police know that this man was not on a rampage, that he was not going to act in self-defense when they came after him?

Ms Kruger: --No, they certainly did not know that, Justice Kennedy.

Justice Anthony Kennedy: That he was not taking hostages?

Ms Kruger: That's correct.

They had no way of knowing that.

And neither, for that matter -- I think it is important to emphasize -- did the declarant.

The fact that he was able to escape the scene and managed to drive himself 6 blocks away in no way indicates that he had any--

Justice Antonin Scalia: Will they ever know that?

Ms Kruger: --I--

Justice Antonin Scalia: I mean, is that -- is that likely not always to be the case when -- when you come upon a person who has been the -- they victim of a violent crime?

You can say it all the time.

No, they didn't know where the -- where the offender was, so whatever this person says comes in as evidence in a trial.

Ms Kruger: --Well, I think it's important to emphasize that what we are arguing for is not a rule that would say as long as there is a violent perpetrator at large, as long as he is at large, any questions that police ask of -- of potential people who have information about the crime would necessarily be non-testimonial.

Our argument is a far narrower one, and one that we think follows very closely from the principle articulated in Davis, which is when the primary purpose of the police interrogation is to obtain information that is necessary for them to meet an ongoing emergency--

Justice Ruth Bader Ginsburg: Well, how do you know that?

Because they would ask the same very questions if what they wanted was testimonial evidence.

So you can -- you can characterize that set of questions either way.

What would lead us to pick one rather than the other?

Ms Kruger: --I think it's actually not the case, Justice Ginsburg, that they would have asked the very same questions.

We know from reading the trial testimony that the officers, as they appeared on the scene in response to the police run of a man being shot, asked the same question over and over again.

Each officer, as they approached him, said: What happened?

Where did it happen?

And wanted to know how to recognize the shooter so when they proceeded to the scene they would know who they were dealing with and how to safeguard themselves.

Justice Anthony Kennedy: Let's say--

Ms Kruger: They weren't asking the type of questions--

Justice Anthony Kennedy: --Let's say that we -- let's say that we agree with you that there was an emergency and the police were asking questions in order to mitigate the emergency.

What would be the rationale for admitting this statement, then?

Is it more reliable?

Because if we say that, then we are undercutting Crawford, which says reliability is not the key.

What is the reason for this?

Is it because the police likely have less motive to manipulate the -- the statements and to ask loaded questions?

That in itself, it seems to me, is a reliable -- but what is the -- assuming we adopt your distinction, what is the rationale for the distinction?

Ms Kruger: --We think that the principle that this Court announced in Davis and we are asking this Court to apply again today reflects two principles that underlie the Confrontation Clause as this Court interpreted it in Crawford.

The first is that testimony is typically characterized by the kind of focused understanding by the declarant that the person is providing information for potential use in future prosecution.

It's -- the petitioner in Davis, I would note, made an argument to this Court that whenever a person calls 9-1-1, they do so with an awareness that the information they provide may be used for prosecutorial purposes.

But this Court rejected that argument, because it understood, I think quite rightly, that there is a difference between providing that sort of information to law enforcement with a sort of vague awareness that that might be its potential use, and doing so with the kind of focused understanding that has been characteristic of the testimonial statements this Court has so far identified, like Sylvia Crawford's station house interview in Crawford or Amy Hammon's interview with the police officer from the safety of her kitchen that resulted in the execution of a formal affidavit in the Davis case.

Justice Ruth Bader Ginsburg: One of the officers zeroed in on the victim.

No one was looking around to see if anybody was lurking in the bushes.

Then as far as protecting the public, do we take into account that this was between 3:30 and 4:00 in the morning when they are not likely to be many members of the public around, or do we just say, you find someone, looks like he has been the victim of a violent crime, doesn't matter whether the public is around or not, we -- the victim of a violent crime can be asked these questions.

Ms Kruger: To take your first question first, Justice Ginsburg.

I think that the trial testimony is not quite as clear on the question of what fears the officers had as I think Respondent has suggested in his brief.

If you look at Joint Appendix page 136, Officer Stuglin testified that he was, in fact, afraid for his safety when he got to the gas station.

I would note that all of the officers when they left the gas station after EMS arrived they proceeded immediately to the location of the shooting.

The location that Anthony Covington had identified for them.

When they got there, they took a tactical position and they waited for back-up and they did so because they were afraid that a shooter was in the house, and they wanted to proceed very cautiously in making sure that they neutralized the threat that shooter posed to the public safety, including their own.

I think that in examining the exigencies of a situation a court would be justified in looking at the circumstances in which the crime occurred, and could very well take into account the fact that the crime occurred at 3:00 in the morning as opposed to 5:00 in the afternoon.

But I think that we would expect any reasonable police officer to do precisely what the police officers in this case did, which is proceed directly to the scene, not use their interview with Anthony Covington as an occasion to execute an affidavit or otherwise--

Chief Justice John G. Roberts: Then you are saying that the focus is on the police officers.

And after all, we are not saying that police officers can't do this, we are just saying the testimonial aspects can't be admitted into evidence or that is what your friend is arguing for.

I still have trouble figuring out is the issue the purpose of the interrogating officers, or the purpose and intent of the Declarant?

Ms Kruger: --I think that the test that the Court set out in Davis is one that focuses on the purpose of the interrogation because of the limited context in which that--

Chief Justice John G. Roberts: Okay.

And what do you do with the last sentence on footnote 1.

It's the one that says--

Ms Kruger: --In the end it's the Declarant's statement that the Confrontation Clause requires us to examine.

Chief Justice John G. Roberts: --Right, right.

Ms Kruger: We read footnote 1 to be an acknowledgement that answers given in response to police interrogation do not constitute the universe of possible testimonial statements, that testimony can indeed be volunteered as was Lord Cobham's letter, for example, in Sir Walter Raleigh's treason case, but in the end Davis, I think, quite properly focuses on the primary purpose of the interrogation.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Van Hoek.

ORAL ARGUMENT OF PETER JON VAN HOEK ON BEHALF OF THE RESPONDENT

Peter Jon Van Hoek: Mr. Chief Justice and may it please the Court:

When Anthony Covington made his statement to the officers at the gas station, not just once but several times, he reasonably understood that he was providing the police information as to events which had concluded a half our earlier at a location six blocks away with an understanding that that information would assist the police in locating, apprehending and potentially prosecuting the person he felt was responsible for his injury.

Justice Anthony Kennedy: I didn't hear the end.

In locating and?

Peter Jon Van Hoek: And apprehending, arresting.

Justice Stephen G. Breyer: If -- what keeps that out?

I mean, assuming that a State law or Federal Rules of Evidence admitted as an exception to the hearsay rule, why should the Confrontation Clause bar it?

There is not great likelihood that like Sir Walter Raleigh or Cobham's affidavit is going to be introduced, per se, into the trial as a form of evidence that there was -- why would we want to keep it out?

That is the part that I do not understand.

Peter Jon Van Hoek: Well, certainly.

Justice Stephen G. Breyer: Under the Federal Constitution?

Peter Jon Van Hoek: The Federal Constitution--

Justice Antonin Scalia: I think your answer, counsel, is that we decided that in Crawford from which Justice Breyer dissented.

Justice Stephen G. Breyer: Suppose I think he did it.

Justice Anthony Kennedy: Perhaps there is another answer that I would like to hear.

Justice Stephen G. Breyer: I would like to hear your answer because I don't think we decided it in Crawford.

Chief Justice John G. Roberts: Now is a good time to try to jump in, I think.

[Laughter]

Peter Jon Van Hoek: --The reason, Your Honor, that the Confrontation Clause is the fundamental, part of the fundamental law of the country, and what this Court, I believe, decided in Crawford and then applied to situations, similar situation in Davis and Hammon, is that where you have a statement from a witness to a police officer as part of the questioning and that statement is the functional equivalent of testimony that witness would have given had he or she appeared at trial and been subject to cross-examination, then the admission of that statement at trial even under hearsay exception without cross-examination effectively allows.

Justice Stephen G. Breyer: Does it mean, does it mean that the individual is thinking this may be used -- there is a certain formality of the situation, it may be used at trial or it may just happen to turn out?

What is the relevance of the formality of the situation?

When I looked into history I thought -- I'm not an expert in history -- and I'm also understand that have been situations where the Court's gone back to prior cases and looked at footnotes and said it doesn't express things precisely clearly and changed it a little bit.

I think that that all could be open to us.

So I want to know what the basic reason is that would justify keeping out, let's say an investigation.

There is an investigation of a crime, and a policeman comes across a confederate who makes some statements just generally that help the investigation, therefore it would come in as co-conspiracy, okay?

What in the Constitution, what functional principle is there that says we should keep that out of Court?

Peter Jon Van Hoek: Because I think what this Court said in Crawford and Davis is that is the primary test, that is what our Constitution requires to allow the reliability, the believability, the trustworthiness of that evidence to be evaluated by a jury.

We don't have a situation--

Justice Stephen G. Breyer: Is it all hearsay?

Now all hearsay evidence, despite State or Federal rule makers saying there are exceptions where the trustworthiness is sufficient, such as co-confederates -- confederates, all of that is wiped out by Crawford?

Peter Jon Van Hoek: --It would be wiped out if the statement at issue qualifies as testimonial under the test this Court announced in Crawford and Davis.

Justice Antonin Scalia: That's what we said in Crawford, isn't it?

Justice Stephen G. Breyer: Of course what I'm looking for now is whether there is any sense to that?

What is the constitutional rationale?

I agree on joining Crawford, but I have to admit to you I have had many second thoughts when I've seen how far it has extended as I have written it.

Peter Jon Van Hoek: Well, I would have to say the constitutional justification of that is the reason why the right of constitution isn't in the Constitution.

Where you had a situation in English common law where magistrates were allowed to go out, interview witnesses, come into court and present their memory, their version of what the witness said as substantive evidence in the case and the defense is not allowed to question or talk.

Justice Stephen G. Breyer: That's the value of just what I'm looking for.

What I'm looking for is I can go into Blackstone a little bit and look back and see what this was after, was the problem of Sir Walter Raleigh's trial and the Marion judges, and now what I need is a line.

Because if I can't find a line, then what we've done would seem just as wrong to me, is suddenly bar virtually all hearsay exception evidence of which for 400 years, or 200 years anyway, there has been quite a lot in the courts.

Peter Jon Van Hoek: I certainly don't think Crawford and Davis bars all.

Justice Stephen G. Breyer: What, in your view, is the correct line and why, most importantly why?

Peter Jon Van Hoek: I believe this Court in Crawford and Davis correctly established that line, in a situation like this where it is the response of a citizen to questions from a police officer, that you look primarily, as footnote 1 indicates, to the content of that statement.

Justice Samuel Alito: But we established that this was a dying declaration and was made in contemplation of death, would it be barred by Crawford?

Peter Jon Van Hoek: Well, this Court certainly has suggested that in Giles, that a dying declaration might be an exception to Crawford as an exception that existed at the time of the framing.

We don't have to deal with that question in this case because this is not a dying declaration.

Justice Samuel Alito: I understand that, but assume for the sake of argument that it would be consistent with Crawford if it were a dying declaration, which the Court has suggested.

What does that tell you about the understanding of the scope of the confrontation right at the time when the Sixth Amendment was adopted?

Because a dying declaration may very well be testimonial under -- is likely to be testimonial under the Crawford test.

Peter Jon Van Hoek: Yes.

And I think maybe the dying declaration as being in that situation is an indication.

What is different about dying declaration from all these other hearsay exceptions is that at the point at which the statement is made it is an understanding that that witness will not be testifying, that there is no potential that that witness will appear in court in person.

There is -- the police officers in any of these situations speaking to the witness, when a police officer arrives at the scene they have no way of knowing what is going to occur months later.

Justice Anthony Kennedy: I thought -- I thought the rationale for dying declaration admissions was that they are inherent reliable -- inherently reliable.

You can certainly question that.

But I thought that that was the rationale that the Court gave.

Peter Jon Van Hoek: I think that's correct.

Justice Anthony Kennedy: On your death bed before you are going to meet the maker, you were not going to lie, I think that was the test.

So it was a reliability component, correct?

Peter Jon Van Hoek: That's true.

I think that's -- that's also the -- the -- the background of most hearsay exceptions is that for the circumstances that there is some degree of inherent reliability to that statement which excuses the absence of cross-examination if the witness is unavailable.

But--

Justice Anthony Kennedy: Now, suppose that there is a universe of instances that says we can identify as questions in order to alleviate and stop an emergency to prevent a crime from becoming aggravated and continuous.

Let's suppose we can have a universe of those questions.

Peter Jon Van Hoek: --Yes.

Justice Anthony Kennedy: Is -- is there an argument that responses made for that purpose are more reliable?

Is that what -- is that what underlies the so-called emergency exception, do you think?

Peter Jon Van Hoek: I don't believe so.

I don't believe that -- that a -- a -- a statement by a witness that is a narrative--

Justice Anthony Kennedy: So the -- so the -- well -- and, of course, Davis is certainly does not rest on reliability -- Crawford rather doesn't rest on reliability.

Peter Jon Van Hoek: --No.

Justice Anthony Kennedy: But isn't that really the only way to explain the 911 exception?

Peter Jon Van Hoek: No, no.

The 911 -- well, the fact there's a 911--

Justice Anthony Kennedy: Isn't there a reliability component that underlies this whether we like it or not?

Peter Jon Van Hoek: --I don't think that the fact that someone calls 911 and makes a report, whether they are talking about an ongoing situation or reporting of a past event, makes that somehow inherently more reliable than if they had used another medium.

I think the distinction in Davis is that the beginning of the 911 call that Mr. Contra was making to the case was not relating past events it was a declaration of emergency.

It was a call for immediate assistance.

Justice Anthony Kennedy: But isn't -- isn't the reason we accept that is because it's reliable.

It's an excited utterance, it's an account of an ongoing event.

It's a contemporaneous observation, therefore, it is reliable.

Peter Jon Van Hoek: I don't -- no, I don't think that's the basis on which this Court held it was nontestimonial.

I think this Court held it was nontestimonial because it was not what a witness does during a trial.

It was--

Justice Ruth Bader Ginsburg: Let's go back to this case.

Peter Jon Van Hoek: --Yes.

Justice Ruth Bader Ginsburg: Excited utterance was -- the prosecutor thought that was his best shot, and he -- and he prevailed, except that the -- Davis intervened.

I asked Ms. Palmer, suppose we were back there at the trial and the prosecutor knew that excited utterance wouldn't work, could he have raised dying declaration?

She said absolutely yes.

So my question to you is, just assume that we should hold the confrontation clause that is applicable.

Shouldn't the prosecutor then have a chance to say, well, if I realized that, I could have made a dying declaration plea here, so it would only be fair to allow the prosecutor to try to establish that this testimony was a dying declaration?

Peter Jon Van Hoek: Well, in -- in this case, when -- when -- when the initial attempted admission of this evidence, at the preliminary exam, when it met a hearsay objection, the prosecutor at that point argued that it was admissible under Michigan evidence rules as either an excited utterance and/or a dying declaration.

Justice Ruth Bader Ginsburg: Maybe she argue dying declaration.

Peter Jon Van Hoek: Well, they argued dying declaration, the judge sustained the objection and said he has not established the foundation for either one of those.

The prosecutor at that point established a foundation solely for excited utterance.

The judge ruled the evidence admissible and specifically said admissible only as excited utterance.

At that point the prosecution abandoned any attempt, threw out the State court proceedings to say this was a dying declaration.

Justice Ruth Bader Ginsburg: And that -- that -- that was in the pre-Davis world.

But do you think the prosecutor had abandoned that effort had he been informed about Davis?

Peter Jon Van Hoek: I don't know.

I don't know what--

Justice Antonin Scalia: Mr. Van Hoek, what is the basis for your concession that a dying declaration is an exception from the Confrontation Clause?

It is an exception from hearsay, for certain, but from the Confrontation Clause?

Peter Jon Van Hoek: --I'm not -- if I -- if I meant -- if you took what I said as a concession, what I said is that this--

Justice Antonin Scalia: You conceded it.

It's been the whole basis for Justice Ginsburg's subsequent interrogation.

Justice Ruth Bader Ginsburg: My question was based on its an open question, because we have said maybe dying declaration.

Peter Jon Van Hoek: --And I--

Justice Antonin Scalia: I -- I thought it was an open question only -- only where the -- the defendant has effected the death of the person who has made the dying declaration.

I don't know of any cases that allow a dying declaration in over a Confrontation Clause objection.

Peter Jon Van Hoek: --If I -- if you took my answer to the prior question to say that I conceded that, I'm not saying that.

I'm saying when I was first asked the question about dying declaration, I pointed out that this Court in Giles indicated that that may be an exception to the Confrontation Clause.

And I agree--

Justice Ruth Bader Ginsburg: And it wasn't -- and it wasn't in Giles.

It wasn't in--

Peter Jon Van Hoek: --No, Giles is not--

JUSTICE GINSBURG -- any way to the -- that the -- that the purpose of the killing was to get rid of the witness's testimony.

Giles made the statement maybe dying declaration is an -- is an exception to our Crawford's jurisprudence.

Yes.

And as you said, this Court has not reached that question directly, and -- and there is no need to reach that question in this case because this is not a dying declaration case.

Justice Antonin Scalia: If it hasn't been reached and if it is not an established exception to the Confrontation Clause, there is no basis for saying, therefore, the Confrontation Clause pertains only to reliability.

It pertains to the opportunity to cross-examine.

And -- and reliability exceptions are what we used to do under -- under Reynolds.

If it was reliable, we let it in.

The mere fact that it is reliable as a dying declaration instead of reliable as to something else ought to have nothing to do with the Confrontation Clause decision.

Peter Jon Van Hoek: I agree.

I'm not -- I clearly don't--

Justice Ruth Bader Ginsburg: --Whether you agree or not, we said it was an open question.

Peter Jon Van Hoek: --Yes, yes.

Justice Samuel Alito: Can there be--

Peter Jon Van Hoek: And it has not been decided.

Justice Samuel Alito: --Can there be a situation in which the primary purpose for a statement or for the question that elicits the statement is to respond to an ongoing emergency rather than to gather evidence for subsequent use in a legal proceeding when the statement relates to something that has occurred, perhaps just a few seconds before, but it relates to something that has occurred as opposed to something that is occurring at that very moment?

Peter Jon Van Hoek: I think there are situations where -- where the police are coming in and asking questions, is there a threat here?

Is there someone here who is -- who is threatening you?

Is there someone here who is coming to threaten you or other people?

They may be able to get some background information to put it in context, but we don't have anything like that in this case.

Justice Samuel Alito: But I understand, but we need to know where to draw the line.

So, you concede that the line is not between a statement about he is hitting me with a baseball bat as opposed to he just finished hitting me with a baseball bat and is headed out the door?

That is not where the line is drawn.

Peter Jon Van Hoek: I think the line would be drawn if those were the only statements, he's hitting me with a baseball bat, versus he -- he just hit me with a baseball bat and he just left.

I think the line is clearly drawn in Davis between the hitting me with a baseball bat would be nontestimonial--

Justice Samuel Alito: I really would like a clear answer to this.

Is -- can there be an ongoing emergency where the statement relates -- where the statement recounts something that has occurred, not something that is occurring?

Peter Jon Van Hoek: --I think that in the absence of any statement by the witness alleging that there is any current ongoing imminent danger, if the witness only gives a statement that relates to past completed events, then it's not a showing of -- of an ongoing emergency.

Chief Justice John G. Roberts: So what do you do -- what do you do with the statement

"The guy in the gas station shot me? "

Is that purely past or is that an ongoing emergency?

Peter Jon Van Hoek: That statement standing alone I would say that that is past, purely past.

Chief Justice John G. Roberts: Even though the guy in the gas station is still there with a gun, the police are within range?

Peter Jon Van Hoek: Are we referring to a specific person?

Chief Justice John G. Roberts: Yes.

I mean, that strikes me as something that happened in the past, he shot me, but at the same time demonstrates an ongoing emergency because he is right there and he might shoot you.

I'm suggesting the line you propose to Justice Alito doesn't work.

Peter Jon Van Hoek: Well, I -- I -- I would -- I don't -- I don't think that -- that the -- the -- the discussion of verbs tense and past tense, I don't think that is the -- is the -- is the determining factor.

It's certainly important, certainly a relevant consideration in--

Justice Antonin Scalia: The guy in the gas station is present.

It's not past.

He is making an assertion the guy who is now in the gas station shot me.

The shot me is past, but he is asserting that the person is now in the gas station.

That is a statement of a present fact.

Peter Jon Van Hoek: --Yes.

And I think if you look at all of the circumstances together, it's a -- it's -- and going to the primary purpose is, is the witness declaring some type of emergency, some sort of imminent harm and requesting the police to render assistance to alleviate that, to protect him -- him or her.

Justice Samuel Alito: Well, suppose they get a 9-1-1 call.

There's -- a man has just been shot on the corner of Fifth and Main.

They go to Fifth and Main; they find a man there; he's shot; he's bleeding profusely; he's in shock; and they know nothing more about what's happened.

And they say, well, what happened?

Well, he shot me.

Who shot you?

It's John Jones.

Now what about that?

Peter Jon Van Hoek: I would say that's our case and I would say that was testimonial.

Justice Samuel Alito: Well, the police under those circumstances don't know whether John Jones is going on a shooting spree; this is just the first of numerous victims.

Maybe it's a gang fight.

He's shot one member of an opposing gang; now he's going to go shoot another member of an opposing gang.

How can they -- how can you answer that question, what's the primary purpose there?

I just don't understand it.

Peter Jon Van Hoek: Well, I would -- in that situation, nothing about the Davis rule and nothing about the Confrontation Clause precludes the police from taking that information and asking those further questions.

Justice Anthony Kennedy: But you -- you -- you were you the one that drew the line between a past event and ongoing event.

Suppose the sniper says, I've shot you now, and I'm going to shoot three other students, good-bye.

That's a past event.

Peter Jon Van Hoek: But if the statement is made to the police that a sniper has said he's -- he is on the verge of shooting other people, because he just shot someone, I would say that's certainly a declaration of an emergency and certainly would be non-testimonial under the -- under the test of Davis.

Justice Stephen G. Breyer: Is there any -- I'll try to -- I think you're just -- you don't like my -- where I'm coming from, and so you might not have an answer to this.

But -- but in my mind, I see a line, and that line is dividing what I think of as the Confrontation Clause, Sir Walter Raleigh situation, which I have in my mind as people going into a room and saying, "now write out your testimony", and they write it out in the form of an affidavit, or they send in a letter, and they say "bye", and then they walk next door to the trial and introduce it.

I mean, that's Walter Raleigh, in my mind.

And then on the other side of the line is an evidentiary rules that are basically in State cases run by the State.

And they sometimes let hearsay in and they sometimes don't, and they make reliability et cetera judgments in developing their -- their decision as to how hearsay exceptions will work.

Okay?

Now why don't I like emergency to draw that?

The reason I don't like the word emergency is I think police do lots of things other than handle emergency and develop testimony.

There is a range of things that you would describe as investigating the circumstance.

There is no danger.

There have been a string of robberies.

They go around and ask the grocery store people and everything what happened.

Now I don't know why we should keep out evidence that say, is given in that situation by a confederate.

It turns out he was the assistant -- why?

And if I don't like that, I don't like the emergency rule as doing the -- as doing the work there, and I'm looking for something else.

Now you have my whole train of thought.

If you want to say Judge, there is nothing but the emergency rule, you are perfectly free to say it.

Justice Antonin Scalia: Do it.

[Laughter]

Peter Jon Van Hoek: I -- there is nothing -- there is nothing but the emergency rule.

I think that when -- hen the police are investigating, a reported crime and getting statements from witnesses, whether the victim or another witness--

Justice Stephen G. Breyer: They're not.

They are just asking -- all right.

Yes.

Go ahead.

Peter Jon Van Hoek: --Well they are investigating.

They are seeking information in which they will do their job, which is to go try to arrest someone and see what the situation is.

And they are getting narratives of past events from witnesses.

And they're asking on it.

And nothing about this rule prevents them from doing that.

But the admissibility -- for them to be able to come into court, and they alone to come into court and say this is what this witness told me and this is what this witness told me and this is what this witness told me -- and by the way, defense counsel, those witnesses are not going to be here today, and you are not going to be able to ask them what they meant by that or whether they were telling the truth.

No.

Mr. Bryant at this trial was never able to question Mr. Covington.

Justice Stephen G. Breyer: Yes, just -- but in the past that situation you are describing arose only where there was a hearsay exception.

I would imagine most likely it would be the case of a confederate, someone who was part of the conspiracy.

So if I think if that is going to be the case, it probably will be admissible where this has bite.

Peter Jon Van Hoek: Well--

Justice Stephen G. Breyer: And there be some others, excited utterances may be another.

Dying declarations are probably few and far between.

Baptismal certificates?

Peter Jon Van Hoek: --But the line this Court drew in Crawford and Davis--

Justice Stephen G. Breyer: I know they did.

And what I'm saying is I'm finding that -- it seems to me that line if taken literally would keep out exceptions to hearsay testimony, which have been well established in the United States for 200 years.

Baptismal certificates, statements of birth.

Peter Jon Van Hoek: --I don't believe--

Justice Stephen G. Breyer: Confederates is the one I come back to.

Peter Jon Van Hoek: --Those examples you just gave, are not statements made during police questioning.

If we're talking about--

Justice Stephen G. Breyer: Okay, okay.

I forgot.

Peter Jon Van Hoek: --What -- the difference that made in Davis is that the -- the definition of testimonial is not across the board.

Justice Antonin Scalia: I guess it depends on what you mean, by in the past, as Justice Breyer put it.

Undoubtedly under the regime of United States v. Reynolds which was what, 25 years old -- when--

Peter Jon Van Hoek: Roberts.

Justice Antonin Scalia: --Roberts, I'm sorry.

Peter Jon Van Hoek: Roberts.

Justice Antonin Scalia: Roberts.

Reynolds was the Mormon case -- which was about 25 years old or so when Crawford was decided, yes, hearsay was your protection, and that was it.

But if by -- what you had mean is in the past, Crawford examined the past and its conclusion as to what the past said is quite different from what Justice Breyer now says, although he joined Crawford.

Peter Jon Van Hoek: Yes.

As you said, in Crawford this Court looked at that and though the protections of the hearsay rule, and the focus under the Roberts standard of whether a statement fell within a firmly established hearsay rule, was not sufficient under the Constitution, under the Confrontation Clause, to -- to alleviate the fact that there -- there is no cross-examination.

Justice Stephen G. Breyer: Many -- I mean, like many cases there is language that can take us far afield from the subject matter before us.

And I will admit that I did not foresee the scope of Crawford.

So I'm really asking about that scope, and in particular, whether looking to the past or to reason, or to whatever you want, there is a good reason for keeping out the testimony of say a coconfederate, a coconspirator -- where it was elicited, not with intent to introduce it into the courtroom, but it was elicited in the course of an ordinary investigation of a crime.

Peter Jon Van Hoek: Well, I'd have to go back to my answer that the Confrontation Clause is the primary law of the country, not State hearsay objection rules.

Many of the examples -- the coconspirator -- the coconspirator exception is not going to be applicable in many cases because those statements aren't made to police officers, they are made to coconspirators in the course of a conspiracy.

That is the foundational requirement.

It is not going to eliminate hearsay rules.

Statements made to private citizens; statements made in a lot of different circumstances are still going to be evaluated solely under hearsay rules, because they are not testimonial, because they are not the product of police -- police questioning.

Justice Samuel Alito: Well, I'm still trying to understand your conception of the scope of the ongoing emergency doctrine.

Would it be fair to say that your idea is that the police have to have specific evidence that there is an immediate threat of physical violence that they need to respond to, in order for the ongoing emergency doctrine to apply?

Peter Jon Van Hoek: Yes.

Yes.

They have to.

Justice Samuel Alito: And in a case of doubt they can't do it.

So if they don't know whether there is an immediate threat or not an immediate threat then that doesn't fall within that exception; that's your idea?

Peter Jon Van Hoek: My position is that where the witness has not provided any information to the police indicating that there is an immediate threat, either volunteered to the police or in response to questions from the police, saying is there a threat?

Where -- in this case, no question is asked--

Justice Antonin Scalia: Well, they can always do it.

You -- you don't say they can't do it.

Peter Jon Van Hoek: --No, not at all.

Justice Antonin Scalia: They can always ask the questions.

The only issue here is not whether they can ask the questions, but whether after they ask them the answers can be introduced at trial.

Peter Jon Van Hoek: Yes, and if the answers, no matter what questions they asked, if the answers all are a narrative of past events, then that qualifies as testimonial because it is the -- the equivalent.

Justice Samuel Alito: I thought you just said that wasn't the test, past versus present.

Didn't you say that about 10 minutes ago, it's not the difference between something that is taking place and something that has taken place?

Peter Jon Van Hoek: No.

No.

I think my answer was that -- that if the witness is declaring an emergency and telling the police that there is--

Justice Samuel Alito: The witness has to say there is an emergency?

Peter Jon Van Hoek: --Not in those words but -- but in comparison to what -- Mrs. Davis said, which is that he's beating me up.

Justice Samuel Alito: There is a report of shooting at a school, and the police go and they find two students lying on the ground.

One is dead and the other is severely wounded and they ask the one who is wounded did it.

"It's John Jones".

Now does that -- is that an ongoing emergency?

Peter Jon Van Hoek: No.

Justice Samuel Alito: No.

Why is it not an ongoing emergency?

What would be an ongoing emergency?

Peter Jon Van Hoek: Well, it would be -- it would be -- a statement from the -- from the witness at that point of the police officer asking him, is John Jones here?

Is he threatening you?

Do you know where he is right now?

Do you know what he is intending to do?

And the answers are

"yes, he has a gun, he's right over there. "

"He's going to shoot someone else. "

"He said he was going to shoot someone else. "

That's different.

Justice Samuel Alito: That is a very specific information.

Peter Jon Van Hoek: Because the -- or the Petitioner's position here is that the situation itself, standing alone--

Justice Samuel Alito: What if there are three students who have been shot, four students who have been shot, but nobody says, well, I think he's still in the building, he may have an interest in shooting some more students?

Peter Jon Van Hoek: --Well, certainly if the police have come on the scene and multiple students have been shot.

You would think that the primary purpose, if the primary purpose, if you take that as a test.

That their primary purpose of questioning the witness is to determine whether there is an emergency, they are going to ask those questions.

Justice Antonin Scalia: Would they ask his name?

God, it's really important for us to know, four students on the ground.

What's the name of the guy that did this?

That's not the emergency.

They would say where is he.

Justice Samuel Alito: Of course that's the emergency.

Because how are they going to find the person that they are looking for if they don't know who it is.

What if he's thrown away his gun?

Of course if they come upon him and he has the gun in his hand, then it's not a question.

What if he has disposed of it?

They have to know who to go for.

Peter Jon Van Hoek: And they can ask all those questions.

As Justice Scalia said, there is nothing in this Court's opinion in Davis and nothing in my position that prevents the police.

Justice Samuel Alito: I'm totally puzzled now as to when you think there is an ongoing emergency and when there isn't.

Peter Jon Van Hoek: I think there is an ongoing emergency that a statement that is non-testimonial relating to an ongoing emergency, when there is some indication from the statement made by the witness that such -- that there is some immediacy.

Justice Samuel Alito: You made by the Declarant.

It can't be inferred from the circumstances.

Peter Jon Van Hoek: No, I don't think just from the circumstances.

Chief Justice John G. Roberts: Oh, sure it can.

If he says the principal did it.

It's 10:00 in the morning, you assume the principal is at the school and he says the principal did it.

You can infer from the circumstances that he is referring to an ongoing emergency.

Peter Jon Van Hoek: I don't agree.

I don't agree.

If that's the case, any report, as Justice Scalia said previously, any report of a past crime certainly raises the potential that a subsequent crime will occur.

If that's the case--

Chief Justice John G. Roberts: It's quite different from saying this happened to some guy driving by or something like that.

If it says the principal did it, it's at 10:00, it's in the school, that suggests to me more, not that the dying student or the wounded student wanted to make sure that the principal was convicted, but there is an emergency, something is happening.

Peter Jon Van Hoek: --Well, again, I think that if all it is that the principal shot someone before, that basically is--

Justice Sonia Sotomayor: You don't think there is a danger implicated by coming onto the lawn of a school and a student is there and says the principal shot me inside.

You don't think that that suggests an ongoing emergency?

That the principal is still inside with a gun?

Peter Jon Van Hoek: --Well, if they ask those questions and the principal is still inside and there is an indication.

Chief Justice John G. Roberts: Oh, no, no.

You don't want them to have to go through, you know, a whole list of questions while the students there dying and the principal is inside the building shooting people?

Justice Sonia Sotomayor: Did he shoot you because he had a grudge against you or did he just shoot you blindly and he says he shot me?

Peter Jon Van Hoek: I'm not taking the position that they have to go through a whole list of questions before they can do anything.

If you go to a situation and a student says the principal shot someone, certainly nothing about the Davis rule stops them from immediately running into the school and determining if there is a situation there.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Palmer, you have two minutes remaining.

ORAL ARGUMENT OF LORI B. PALMER ON BEHALF OF THE PETITIONER

Ms Palmer: I would just like to reiterate that the underlying principle as this Court has said repeatedly in Crawford and in Davis is formality, and that's what the purpose of any inquiry should be in looking at the scene whether there is an emergency or not or Declarant's view or not, it all comes down to formality akin to a magisterial examination.

And I would also.

Justice Sonia Sotomayor: Let's go to formality.

It can't be that you arrive at a scene of a crime and everything a victim tells you is admissible.

There has to be some emergency.

That's what we have said.

Ms Palmer: Right.

Justice Sonia Sotomayor: Correct?

So the issue here is how do you define that dividing line between emergency and non when the police officers are just asking questions that by their nature are always going to be testimonial, because they are going to use or try to use whatever is said later.

So in discerning the primary purpose, I think your adversary is saying, you can't go by what the police officer are asking, because they are going to be asking dual motive always.

You have to look to what the Declarant tells you.

And is he or she telling you something that suggests an emergency?

Ms Palmer: Well--

Justice Sonia Sotomayor: That's really the difference between the two of you, I think.

Ms Palmer: --Even if, even if you take that view that it's the Declarant's purpose or objective view that controls, I think here it's difficult to see how Covington's purpose could have been to provide evidence any more than the 9-1-1 call in Davis.

I think he was in shock from a bleeding wound.

He didn't call the police.

They came to him.

You know, this wasn't even a 9-1-1 call where he sought them.

They came to him.

It's not clear who called, but it was not him.

So even taking it from his point of view, it is difficult to see here how the purpose would have been anything other than, as he said, when is EMS coming to help me.

Justice Antonin Scalia: I don't understand what you are saying.

You mean he has to intend to provide evidence that he knows will be used at trial?

I don't think that's the test.

Ms Palmer: I don't agree with that.

Justice Antonin Scalia: He is intending to accuse somebody.

Ms Palmer: I think here he is intending to seek help because he has been mortally wounded.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Sonia Sotomayor: Police officers responded to a call that a man had been shot.

They found Anthony -- Anthony Covington lying in a gas station parking lot, bleeding from a mortal gunshot wound to his stomach.

The police officer first asked him, “What happened?”

He told them the respondent Richard Bryant had shot him about 25 minutes earlier in a few blocks away.

Covington died a few hours later.

At Bryant's trial, the police officers testified about what Covington said to them.

Bryant was convicted but on appeal, the Michigan Supreme Court reversed holding that Covington's statements to the police were inadmissible hearsay under our decisions in Crawford versus Washington and Davis versus Washington.

We granted certiorari to decide whether the Michigan Supreme Court was correct that Covington statements were testimonial.

We now reverse.

In Crawford, we held that the confrontation clause in the Sixth Amendment to our Constitution requires that defendants have the opportunity to confront those who provide testimonial evidence against them.

In Davis, we explained that statements made in the course of police interrogations are non-testimonial when they have a primary purpose of enabling police assistance to meet an ongoing emergency.

They are testimonial when they have a primary purpose to establish or prove past events potentially relevant to later criminal prosecution.

To determine the primary purpose of an interrogation, we objectively evaluate the statements and actions of the parties to the encounter in light of the circumstances in which the investigation occurs.

The existence of an ongoing emergency or the parties' perception that an emergency is ongoing is among the most important circumstances in forming our analysis.

The scope and duration of an emergency depends on the context including the type of dispute, the type of weapon employed and the medical state of the victim.

The formality or informality of the interaction also sheds lights on its purpose.

In addition, the statements and actions of both the decelerant and interrogators provide important evidence about the interrogation's primary purpose.

In this case, we conclude that the primary purpose of the interrogation was to address an ongoing emergency, first, the circumstances.

Here, an arm shooter whose motive for and location was unknown had mortally -- mortally wounded Covington within a few blocks and a few minutes of where the police found him.

Unlike the domestic violence situation in Davis, this disputes possible scope and thus the emergency potentially threatened the police in the public.

This case also involved a gun.

Turning to the statements and actions of the parties, we first did consider the decelerant.

The police found Covington lying in a gas station parking lot, bleeding from a mortal -- mortal gunshot wound and statements were punctuated with questions about when emergency medical services would arrive.

We cannot say that a person in his situation would have had a primary -- primary purpose of providing testimonial statements.

That is statements to establish or prove past events potentially relevant to later criminal prosecution.

For their part, the police responded to a call that a man had been shot.

They did not know why, where or when the shooting had occurred, the shooter's location or anything else about the crime.

They asked exactly the type of questions necessary to enable them to lead an ongoing emergency.

Nothing in Covington's responses indicated that there was no emergency or that the emergency had ended.

Finally, this situation was quite informal.

The officers all arrived at different times as repetitive questions and generally did not conduct the structured interrogation.

For the four going reasons, we hold that Covington statements were not testimonial and that their admission at Bryant's trial did not violate the confrontation clause.

We reversed the judgment of the Michigan Supreme Court and remand for further proceedings not inconsistent with our opinion.

Justice Thomas has filed an opinion concurring in the judgement.

Justice Scalia and Justice Ginsburg have each filed a dissenting opinion.