Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements. I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.
The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial. Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial. But, Crawford was just the tip of the iceberg. After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency. The Court held that those statements are non-testimonial. The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.
Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:
1) The circumstances of the encounter;
2) The questions and statements of the participants; and
3) The primary purpose of the interrogation as viewed by reasonable participants at the time.
The case was consistent with Crawford. Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test. The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency. The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.
For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial. By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis. Could a 911 call be considered testimonial? If evaluated under the Bryant test, and the right circumstances exist, we think it could be. This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.
Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)
