In my last post, I looked at the majority opinion in Bryant. Today, I’ll discuss the other opinions, focusing on Scalia’s dissent. In my final post on this issue, I’ll wrap up with a discussion of what the case means for evolving confrontation clause law. As noted in my last post, Justice Sotomayor wrote the majority opinion, holding that the victim’s statements to the responding officers were non-testimonial. Justice Kagan took no part in the consideration or decision of the case. Justice Thomas concurred, agreeing that the statements were non-testimonial but arriving at that conclusion because he believed they lacked sufficient formality, not because there was an ongoing emergency. Thomas, as he has done before, criticized the majority’s primary purpose test as creating uncertainty for the police and for the lower courts. Opinion of Thomas, J., concurring at 1. In his opinion, the majority’s test is an “exercise in fiction,” that “yields no predictable results.” Id. According to Thomas, a better approach is to consider the extent to which the interrogation resembles those historical practices that the confrontation clause was meant to address. Id. at 1-2. In his view, assessing the formality of the statement does just that. Scalia bitterly dissented in Bryant. The first paragraph to his dissent sets his tone: 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 [...]
Faculty Coordinators
