Confrontation Clause: Williams Creates 'Significant Confusion' Prompting California Avoidance; Bryant's Dual Perspective Primary Purpose Approach; 2013 Application Summary

Abstract

Confrontation clause analysis took still one more step backward with the United States Supreme Court decision in Williams v. Illinois — U.S. — 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a four justice plurality, with really only three of the four justices aligning principally with an “accusing a targeted individual of engaging in criminal activity” definition of testimonial, combined with a concurrence by Justice Thomas described by Justice Kagan dissenting as adopted by no other member of the Member of the Court. Justice Kagan also said of Justice Thomas’s concurrence that it is “ — to be frank — who knows what” “formality and solemnity” approach. Combined the Williams opinions “have left significant confusion in their wake”. Id. at 2277 (emphasis added).

Williams addressed the issue of whether facts, data, or opinions reasonably relied upon under an Illinois evidence rule similar to Fed.R.Evid. 703, disclosed to the trier of fact, dealing with a DNA comparison, somehow does not violate the confrontation clause in the absence a testifying witness competent to testify on personal knowledge to the truth of the statements made in the DNA report — a live witness who signed the certification or performed or observed the text reported in the certification as required by both Melendez-Diaz and Bullcoming. It is asserted that given the structure and content of the peculiar four one four opinions in Williams, that even though the conviction of Williams following admissibility of the DNA report absent a witness with sufficient personal knowledge presented for basis only under Rule 703, was held not to have been in violation of the confrontation clause, Justice Kagan is correct that at this moment Melendez-Diaz and Bullcoming continue to govern in every particular the admission of forensic evidence. On the other hand, as predicted by Justice Kagan, Williams taken as a whole, did leave “significant confusion” in its wake. Reported decisions have already taken contrary approaches in interpreting Williams.

In Michigan v. Bryant,131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), Justice Sotomayor, writing for the majority, with Justice Scalia vehemently dissenting, the Supreme Court addressed the admissibility under the confrontation clause of a statement of a murder victim, i.e., “Rick shot me”, made while then lying on the ground next to his car at a gas station about six blocks from the drug dealer’s house to the police almost 25 minutes after having been shot in the back by the victim’s drug dealer, Rick, at the drug dealer’s home. The Supreme Court found the victim’s statement to be nontestimonial; the primary purpose of the police interrogation of the victim was to enable assistance to meet an ongoing emergency. According to Bryant, a statement is testimonial, if upon objective evaluation of the statement and action of the parties involved in the interrogation, along with the formality or informality of the interrogation, considered in light of the circumstances in which the interrogation occurred, the court concludes that the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. Pursuant to the combined approach of Bryant, the court must consider the statements and actions of both the declarant and the interrogating government official, along with the formality or informality present, in determining objectively the “primary purpose” of the interrogation.

Combining the holdings of Melendez-Diaz/Bullcoming that an analyst’s affidavit, i.e., a government created statement opining that a substance was cocaine is “testimonial”, and incorporating the analyses of Williams suggested above as correct with the Supreme Court’s jurisprudence in Crawford/Davis and Bryant relating to informal or formal interrogations, when the declarant of the out of court statement is not and was not subject to cross-examination concerning the statement, the following defines the concept of “testimonial” for confrontation clause purposes:

An out of court statement is “testimonial” only if hearsay as defined in Fed.R.Evid. 801(a)-(d) and the statement was made by, or made to, or elicited by a police officer, other law enforcement personnel, or a judicial officer, if upon objective evaluation of the statements and actions of both the declarant and interrogator, if any, involved in the interrogation or statement creation, along with the informality or formality of the interrogation or statement creation, considered in light of the circumstance in which the interrogation or statement creation occurred, the court concludes that the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution.

An out of court statement includes not only a verbatim recitation but also an outline, description, summary, etc., of the out of court statement that, fairly read, conveys to the jury the substance of the out of court assertion.

Keywords: Confrontation Clause, Williams, Bryant

JEL Classification: K10, K14, K19