By John M. Castellano
In Michigan v. Bryant, the Supreme Court significantly expanded the admissibility at trial of hearsay statements made in response to initial police inquiries at or near the scene of a crime. In this Emerging Issues Analysis, John M. Castellano, a 27-year-veteran of criminal practice, describes the legal and practical impact of the decision and addresses how best to approach the questions left open by Bryant.
“In Michigan v. Bryant, __ U.S. __, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), the Supreme Court expanded the admissibility at trial of statements made in response to initial police inquiries, concomitantly narrowing the scope of the Confrontation Clause,” writes John M. Castellano. “Under the Court's ruling, statements made at or near the scene of a crime will be admissible so long as an objective observer in the position of the police or the declarant would conclude that the offender still poses an immediate threat or that a medical emergency exists. And the Court's broad interpretation of what constitutes an on-going emergency allows for the admission of statements even when made after the crime has ended, the victim has moved locations, and the offender has long since fled.”
(Lexis.com subscribers can access the Lexis enhanced version of the Supreme Court’s decision with summary, headnotes, and Shepard’s, Michigan v. Bryant, __ U.S. __, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). Non subscribers can access the free unenhanced version of the opinion available from lexisONE Free Case law, Michigan v. Bryant, __ U.S. __, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011).)
“Moreover, in arriving at this conclusion, the Court made several significant new modifications and additions to its Confrontation Clause analysis,” argues the author. “Rather than adopting a single definition of what constitutes a testimonial statement, or even a single definition for purposes of initial police inquiries, the Court chose a multi-factor approach, examining the nature of the emergency, the formality of the encounter, and the probable intent of the parties judged by an objective observer in the parties' positions. The new test renders Confrontation Clause analysis highly fact-dependent, thereby limiting the ability of litigants and lower courts to predict outcomes from prior precedent reliably.”
“In addition, perhaps to counteract the effect of its multi-factor analysis, the Court reintroduced into the Confrontation Clause equation a discussion of the reliability of certain types of statements under traditional hearsay categories, suggesting that some hearsay exceptions may routinely produce non-testimonial statements,” Castellano points out. “This mode of analysis constitutes a significant retrenchment in modern Confrontation Clause jurisprudence, as the Court seemed to have specifically rejected this mode of analysis in Crawford v. Washington, 541 U.S. 36 (2004). How far the Court is willing to take either its multi-factor test or its reliance on traditional hearsay categories are highly significant questions still left open by the Bryant decision.” These issues, along with practical ways to approach Confrontation Clause claims after Bryant, are discussed in detail in this article.
(Lexis.com subscribers can access the Lexis enhanced version of the Supreme Court’s decision with summary, headnotes, and Shepard’s, Crawford v. Washington, 541 U.S. 36 (2004). Non subscribers can access the free unenhanced version of the opinion available from lexisONE Free Case law, Crawford v. Washington, 541 U.S. 36 (2004).)
Lexis.com subscribers can access the complete commentary, Castellano on Michigan v. Bryant: Expanded Admissibility of Hearsay Statements. Additional fees may be incurred. (approx. 6 pages)
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For a further discussion of Confrontation Clause limitations on hearsay, including statements made for an emergency purpose, lexis.com subscribers can utilize these Matthew Bender resources:
• The Sixth Amendment's Confrontation Clause: The Evolving Crawford Doctrine, 3-14A Criminal Constitutional Law § 14A.03;
• Trial Strategy and Tactics: Objections, 1-1A Criminal Defense Techniques § 1A.11;
• Identification Evidence: Evidentiary Principles, 1-2 Criminal Defense Techniques § 2.06;
• Prior Recorded Testimony, 1A-24 Criminal Defense Techniques § 24.02;
• State's Evidence of Guilt, 2-50 Criminal Defense Techniques § 50.09;
• Hearsay Rule, 4-801 Federal Rules of Evidence Manual 801.02.
Lexis.com subscribers can access the following Supreme Court Briefs: Supreme Court Briefs filed in Michigan v. Bryant; Supreme Court Briefs filed in Crawford v. Washington.
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John M. Castellano is Deputy Executive for the Legal Affairs Division in the District Attorney's Office in Queens, New York, where he has been in charge of the Appeals Bureau for more than 14 years. In that capacity, he has supervised thousands of criminal cases prosecuted at every level of state and federal court. He has personally briefed, edited, or argued over 50 cases in the New York Court of Appeals and has argued before the Supreme Court of the United States. The New York State District Attorney's Association named him Appellate Prosecutor of the Year in 2005. He has also written for the treatise Criminal Law Advocacy, published by LexisNexis, and is General Editor of the Practice Insights for the New York Penal Law and Criminal Procedure Law published by LexisNexis. Mr. Castellano is a frequent lecturer for the New York Prosecutors Training Institute and the New York State Bar Association.
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