Don't Blame Crawford or Bryant: The Confrontation Clause Mess is All Davis' Fault

In Michigan v. Bryant, a dying victim lying in a parking lot provided responding officers with the identity of the man who shot him. In determining whether the subsequent use of the deceased declarant’s statement at trial violated the Confrontation Clause, the Bryant Court applied the testimonial versus nontestimonial analysis established in the Court’s previous decision, Crawford v. Washington. Holding that testimonial hearsay covered statements involving past events, while nontestimonial statements were directed at an “ongoing emergency,” the Bryant Court applied a multi-factor, totality of the circumstances analysis and found that the deceased declarant’s identification had been directed at the ongoing emergency. As such, the hearsay statement was nontestimonial and, accordingly, outside the protection of the Confrontation Clause. Bryant, was roundly (and deservedly) criticized by all commentators, who unanimously accused the Court of making a shambles of Confrontation Clause jurisprudence. To an extent, Crawford also shared the commentator’s blame. But for the authors of this article, it is the Court’s Confrontation Clause analysis in Davis v. Washington, a case involving a 911 call, which is truly to blame for the debacle that is Bryant; for Davis carelessly equated “nontestimonial” with a decontextualized, commonplace notion of an “ongoing emergency.” That was the mistake that led to Bryant. As this article will demonstrate, the issue for purposes of Confrontation Clause analysis in cases like Davis and Bryant is not whether or not there exists an ongoing emergency in some general sense; but rather whose emergency it is. If the emergency is the government’s, then any statements made by citizens to help the government address that emergency are testimonial. If the emergency is one in which a citizen is seeking the government’s help (regardless of whether or not it’s also the government’s emergency), any statements by the citizen are nontestimonial.