Sunday, March 6, 2011

An 'emergency' exception to the Sixth Amendment

Youngstown Vindicator
Sunday, March 6, 2011

The U.S. Constitution guarantees those accused of a crime the right to face their accusers in court. A decision last week by the U.S. Supreme Court created an exception to that basic right when the court ruled that prosecutors may use victim statements given at a crime scene even if the victim dies before testifying at trial.

The decision is a step back from a recent series of high court decisions that the Sixth Amendment demands witnesses be subject to cross-examination. In last week’s decision, the court drew a distinction between statements made during an emergency and statements made when police are investigating a crime.

The Confrontation Clause of the Sixth Amendment includes the following, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Those words are as well known as any in the U.S. Constitution and they provide the most basic safeguards that exist in American jurisprudence.

Statements made out-of-court, often referred to as hearsay, may not be used to convict someone accused of a crime unless the accused has an opportunity to confront and cross examine the person who made the out-of-court statement. Cross examination insures that the trier of fact has adequate information to judge the reliability and the believability of the witness’ testimony.


There are exceptions to this very fundamental right. A 1980 Ohio decision played a prominent role in carving out exceptions. In Ohio v. Roberts, the U.S. Supreme Court found when a witness was unavailable, that witnesses’ testimony could be admitted through a third person if the testimony was reliable or had “particularized guarantees of trustworthiness.”

In 2004, the U.S. Supreme Court tightened the tenets of the Confrontation Clause. In Crawford v. Washington, the court ruled that an out-of-court statement made by the wife of the accused, who refused to testify against her husband at trial, could not be used at trial.

Justice Antonin Scalia wrote in Crawford, “the only [indicia] of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Justice Scalia believed nothing short of appearing in court and being cross examined was sufficient to pass constitutional muster.

In 2008, the Supreme Court confirmed continued strict adherence to the Sixth Amendment. The Supreme Court would not admit an out-of-court statement of prior domestic violence, from a deceased victim of murder, at the murder trial.

The Supreme Court’s decision last week in Michigan v. Bryant provides an interpretation of the Confrontation Clause that seems to run contrary to the Court’s recent string of decisions.

In 2001, Detroit police were called to a gas station where a man lay bleeding with a gunshot wound. According to the Washington Post, when asked what had happened, he told police, “Rick shot me.” Within minutes, police determined that Richard Bryant had shot the victim and the victim drove to the gas station for help.

Justice Sonia Sotomayor, writing for the majority found an exception to the Confrontation Clause for statements made while police are involved in an “ongoing emergency” in which there is a “potential threat to the responding police and the public at large.”

‘Primary objective’

The victim’s statement was made to police while their “primary objective” was looking for a gunman, not trying to solve a crime, Justice Sotomayor wrote. Judges may use their discretion to determine when such statements are admissible at trial.

Justice Scalia suggested that the majority had left the court’s Confrontation Clause jurisprudence “in shambles” and that instead of clarifying the law, the court has made the law more confusing by giving trial judges discretion on a case-by-case basis. Justice Scalia wrote, “The guarantee of confrontation is no guarantee at all.”

Justice Sotomayor seems to have carved out a new exception to the admission of out-of-court statements. The “ongoing emergency” exception will soon be added to the list of hearsay exceptions that exist in the rules of evidence adopted by the various states.

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