In a split decision today, the Supreme Court has ruled a dying man's identification of his killer is admissible evidenceand does not violate the Sixth Amendment's Confrontation Clause. The opinion (available here) was written by Justice Sotomayor.
Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.”
Justices Ginsberg and Scalia were among the dissenters. Scalia's dissent is particularly harsh. He points out that the statement was not taken for safety in an emergency situation, but for investigation of a crime:
"Today's tale...is so transparently false that professing to believe it demeans this institution,"
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, 541U. S. 36 (2004), I dissent.
Unfortunately, the majority, while giving lip service to the protections of the Confrontation clause, manages to mangle them, using the rubric of the "primary purpose" analysis:
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.
Would it have been admissible as a dying declaration? Per Adam Liptak at The New York Times:
Mr. Covington's statements might also have been admissible by another route, as a "dying declaration." But the prosecution in Mr. Bryant's case did not pursue that theory, and Justice Sotomayor did not address it on Monday except to say that it was possible that a dying declaration "might be admissible as a historical exception to the Confrontation Clause." Justice Ruth Bader Ginsburg said roughly the same thing in her dissent.
From Justice Ginsburg's dissent on that point:
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.
Additional news articles discussing the decision: LA Times,.CNN and the Christian Science Monitor.
Cross-examination has been called the greatest legal engine ever invented for ferreting out untruths in the courtroom. ( 5 J. Wigmore, Evidence Â§ 1367, p. 32 (J. Chadbourn rev. 1974).) The bottom line: The Supreme Court still has not decided whether the Sixth Amendment incorporates an exception for testimonial dying declarations. But the writing on the wall does not seem promising for defendants.
(Cross-posted at TalkLeft.com)