From Richard Friedman on last week Supreme Court case on confrontation….

Preliminary thoughts on the Bryant decision

Here are some preliminary observations on the opinions in Michigan v. Bryant. First, a brief review of the facts.

Responding to a 911 call, police found Anthony Covington on the ground near a service station in Detroit, profusely bleeding from a gunshot wound. As each officer arrived, he asked Covington what happened. Covington said that a man named Rick – the accused, Bryant – had shot him through a door at Bryant’s home, about six blocks away and 25 minutes earlier; Covington had managed to drive himself to the spot where he was found. Covington died several hours later of his wounds. Bryant was eventually extradited from California and tried for murder. The first jury hung, and a second one convicted him. Ultimately, the Michigan Supreme Court held that admission of Covington’s statements violated the Confrontation Clause. The United States Supreme Court has now reversed that decision, in an opinion by Justice Sotomayor. Justice Thomas concurred in the result (on the ground, expected given his prior expressions, that the statements were not formal). Justices Scalia and Ginsburg wrote separate dissents.

Now, two over-arching thoughts:

(1) I believe the decision is a very unfortunate development for the Confrontation Clause. The approach that emerges is remarkably mushy, unjustified by any sound reasoning and virtually incoherent. It leaves courts ample room in many types of cases to characterize almost any type of statement as non-testimonial. It will be easily manipulable by governmental authorities and at times may distort their behavior.

(2) I believe this decision is in large part a result of the Supreme Court’s error in unduly restricting the scope of forfeiture doctrine in Giles v. California. In this case, there was substantial evidence, easily enough to justify a finding, that Bryant had killed Covington and therefore that he himself was at least the initial cause of his inability to cross-examine Covington. Given Covington’s condition, his death within hours, and Bryant’s flight, it does not appear that there was a reasonable opportunity to mitigate the problem by arranging a deposition. Accordingly, a court easily could have held that Bryant forfeited the confrontation right – had Giles not foreclosed the possibility by holding that even a defendant who murders a witness forfeits the right only if he commits the murder for the purpose of rendering the witness unavailable. The bottom-line result of the Michigan Supreme Court’s decision – that Covington’s statements were inadmissible – is singularly unappealing at a gut level, and I think it was inevitable that courts would compensate for the unavailability of forfeiture in cases like this by narrowing the confrontation right. See my post of June 29, 2008, Reflections on Giles, Part 2: Is Giles bad for defendants?


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