Michigan v. Bryant: Originalism Confronts Pragmatism

35 Pages Posted: 22 Jul 2012

See all articles by William Reed

William Reed

University of Denver; affiliation not provided to SSRN

Date Written: August 20, 2011


The Confrontation Clause of the Sixth Amendment guarantees those accused of crimes the right to confront the witnesses against them. The scope of that right, however, is still being calibrated. In fact, the Supreme Court’s interpretation of the Confrontation Clause has undergone major revisions in recent decades, evolving from the “reliability” standard of Ohio v. Roberts to the more rigid “testimonial” rule of Crawford v. Washington. Recently, in Michigan v. Bryant, the Supreme Court refined the analysis used to determine what constitutes testimony and thereby implicates the Confrontation Clause. The application of this new analysis will inevitably affect the operation of the Confrontation Clause, and the balance between the rights of victims and the rights of the accused in criminal law.

Part I of this Comment provides an overview of modern Confrontation Clause jurisprudence, with an emphasis on the watershed holding in Crawford. Part II summarizes the facts, holding, and reasoning of the majority opinion in Bryant, along with the reasoning of the concurring opinion and dissenting opinions. Part III explores the contours of the primary purpose analysis and the ongoing emergency exception articulated in Bryant, and argues that the combined effect narrows the scope of the Confrontation Clause while expanding judicial discretion. This Comment concludes that despite powerful pragmatic arguments for this shift away from emphasizing the rights of the accused, the Bryant decision ultimately subverts the aims of the Confrontation Clause. Lastly, this Comment proposes changes to narrow and define the ongoing emergency exception, and alterations to the primary purpose analysis to promote simplicity and objectivity in confrontation jurisprudence as it continues to evolve.

Keywords: Confrontation Clause, Bryant, Constitutional Law, Sotomayor, Scalia

Suggested Citation

Reed, William and Reed, William, Michigan v. Bryant: Originalism Confronts Pragmatism (August 20, 2011). Denver University Law Review, Vol. 89, No. 1, 2012, Available at SSRN: https://ssrn.com/abstract=2114661

William Reed (Contact Author)

affiliation not provided to SSRN ( email )

University of Denver ( email )

2201 S. Gaylord St
Denver, CO 80208-2685
United States

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