In Michigan v. Bryant, the Court 6-2 held that a declarant’s identification and description of the shooter and the location of the shooting were not testimonial statements because theyhad a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Justice Sotomayor, writing for the Court , and joined by CJ Roberts, Justice Kennedy, Breyer, and Alito. Justice adopted an objective intent view of the Confrontation Clause. In the words of Justice Scalia’s scathing dissent, the majority opinion “creates an expansive exception to the Confrontation Clause for violent crimes.” Justice Ginsburg kinda joined Justice Scalia’s dissent. Justice Thomas concurred in judgment, and applying the Crawford test found these statements not to be testimonial. Justice Kagan recused.

Looking for the “primary purpose” of the declaration, the Court must objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred

The Court focused on the fact that there was an “ongoing emergency,” in that the declarant had been shot and the officers feared that there was possible harm to others. (2)
The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” but on “end[ing] a threatening situation.” Here, the circumstances of the encounter as well as the state-ments and actions of Covington and the police objectively indicate that the interrogation’s “primary purpose” was “to enable police as-sistance to meet an ongoing emergency,”
The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.”

Justice Sotomayor has a bit to write about the nature of the emergency, and in particular the role of a firearm:

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.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.
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This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separationthat 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’shouse. Bryant’s argument that there was no ongoing emergency because “[n]o shots were being fired,” Brief for Respondent 27, surely construes ongoing emergency toonarrowly. 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 construingthe emergency to last only precisely as long as the violent act itself, as some have construed our opinion in Davis.
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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.”

Justice Scalia, the author of Crawford and its progeny, had a rather biting dissent, even for Scalia-standards.

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; itaffects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps asan intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. 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 Peopleadopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.

He doesn’t even “respectfully dissent.” He just dissents.

Scalia rejects an objective test, and would focus on the subjective intent of the declarant. He derides the majority’s flexible and malleable approach that looks to the mixed motives of the declarant and the police.

The only virtue of the Court’s approach (if it can bemisnamned a virtue) is that it leaves judges free to reachthe “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving anincriminating 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.”

Scalia also challenges the majority’s notion of the ongoing threat and pending emergency.

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.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?
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The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and location 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 dystopian4 view of Detroit, where drug dealers hunt theirshooting 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 ofmurders involve a single victim,5 it is much more likely—indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate consequences.

Next Scalia, notes that the Court creates “an expansive exception to the Confrontation Clause for violent crimes.” I would not that this is similar to the Quarles public safety exception to Miranda. As I have written in the Constitutionality of Social Cost, the Court routinely carves out exceptions to constitutional liberties when social harm is at play.

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 didhere) solely on the officers’ recollection at trial of the witnesses’ accusations

Scalia continues to talk about confrontation rights in the 16th and 17th century England. As this case is from Michigan, and not against the United States, the appropriate inquiry is the original understanding of the Confrontation Clause in 1868 when the 14th amendment was ratified. I have described this mistake of originalism at the right time in Pandora’s Box.

Scalia also notes that this case represents an attempt to return to the Ohio v. Roberts without overturning Crawford, and chides the majority with faux judicial restraint.

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.
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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 toconfess that only the Justices’ preference really matters.
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The Framers placed the Confrontation Clausein 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 ortrials 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).

Nino whips out the parchment barriers line. He is really, really upset here.

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.