Apparently dead men do tell tales…..

Justice Antonin Scalia argued in dissent today that the Supreme Court has left its confrontation clause jurisprudence “in a shambles” by creating an expansive exception that allows admission of pretrial statements by victims of violent crimes.

Scalia is known for a series of opinions on the rights of defendants to confront witnesses at trial that are based on his originalist view of the Constitution. Today, Scalia and Justice Ruth Bader Ginsburg dissented inMichigan v. Bryant, a decision allowing admission of statements by a dying man who told Detroit police that a man named “Rick” had shot him. Ginsburg wrote separately.

Justice Sonia Sotomayor wrote the majority opinion (PDF), which held the statements were admissible because their primary purpose was to aid the police in an emergency. Therefore, the statements were not testimonial and their admission at trial did not violate the confrontation clause, she concluded. Justice Elena Kagan did not participate in the case.

The victim, Anthony Covington, was found wounded and lying by his car in a gas station parking lot. He told police that he had a conversation with the defendant, Richard Bryant, through the closed door at Bryant’s home, and when he turned to leave, he was hit by a gunshot fired through the door. Covington said he didn’t see Bryant but knew him by his voice. Covington then drove to the gas station where police found him hours before his death. At Bryant’s house, police found Covington’s wallet, a bullet on the back porch, an apparent bullet hole in the back door and blood. Bryant was found guilty of second-degree murder.

Bryant had argued Covington’s statements were testimonial and inadmissible under the confrontation clause. The state had argued the statements were admissible as “excited utterances”—an issue that was abandoned by prosecutors, Ginsburg noted in her dissent.

Justice Antonin Scalia took the majority to task, saying its ruling “distorts our confrontation clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort.”

The court, Scalia said, has “an active imagination.”

“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 the loose—is so transparently false that professing to believe it demeans this institution,” Scalia wrote.

He criticized the majority test that looks to the purpose of both the police and the declarant, and said the majority “creates an expansive exception to the confrontation clause for violent crimes.”

 

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