In my first two posts, I explored the Bryant opinions. Today I’ll discuss what the case means for confrontation clause analysis going forward. 1. Although Crawford is intact, the Court may be creeping back towards the old Ohio v. Roberts reliability test. Slip op. at 14; id. at 15 n.9; Op. of Scalia, J. dissenting at 12. In fact, in Scalia’s view, Bryant “recedes from Crawford.” Op. of Scalia, J, dissenting at 15. This is good news for the State and bad news for defendants. 2. The two-pronged Davis inquiry for determining the testimonial nature of statements made during police interrogations also remains intact, but with a modification expanding the scope of potentially non-testimonial statements. The Bryant Court stated: “[T]here may be other circumstances, aside from ongoing emergency, when a statement is not procured with a primary purposes of creating an out-of-court substitute for trial testimony . . . . Where no such primary purpose exists, [the statements are non-testimonial].” Slip op. at 11-12. After Davis we wondered how to categorize statements for which the primary purpose was something other than meeting an emergency or establishing past facts. Bryant suggests that if the primary purpose is anything other than establishing past facts for a prosecution, the statement is non-testimonial. Again, good news for the State; bad news for defendants. 3. The Court continues to use the term police interrogation in its colloquial sense. Slip op. at 8 n.2. 4. Bryant emphasizes that the ultimate question when determining whether a statement is [...]
Faculty Coordinators
