Michigan v. Bryant

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MICHIGAN v. BRYANT

CERTIORARI TO THE SUPREME COURT OF MICHIGAN

No. 09–150. Argued October 5, 2010—Decided February 28, 2011

Michigan police dispatched to a gas station parking lot found Anthony

Covington mortally wounded. Covington told them that he had been

shot by respondent Bryant outside Bryant’s house and had then

driven himself to the lot. At trial, which occurred before Crawford v.

Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813,

were decided, the officers testified about what Covington said. Bry

ant was found guilty of, inter alia, second-degree murder. Ulti

mately, the Michigan Supreme Court reversed his conviction, holding

that the Sixth Amendment’s Confrontation Clause, as explained in

Crawford and Davis, rendered Covington’s statements inadmissible

testimonial hearsay.

Held: Covington’s identification and description of the shooter and the

location of the shooting were not testimonial statements because they

had a “primary purpose . . . to enable police assistance to meet an on

going emergency.” Davis, 547 U. S., at 822. Therefore, their admis

sion at Bryant’s trial did not violate the Confrontation Clause. Pp. 5–

32.

(a) In Crawford, this Court held that in order for testimonial evi

dence to be admissible, the Sixth Amendment “demands . . . unavail

ability and a prior opportunity for cross-examination.” 541 U. S., at

68. Crawford did not “spell out a comprehensive definition of ‘testi

monial,’ ” but it noted that testimonial evidence includes, among

other things, “police interrogations.” Ibid. Thus, Sylvia Crawford’s

statements during a station-house interrogation about a stabbing

were testimonial, and their admission when her husband, the ac

cused, had “no opportunity” for cross-examination due to spousal

privilege made out a Sixth Amendment violation. In Davis and

Hammon, both domestic violence cases, the Court explained that

“[s]tatements are nontestimonial when made in the course of police

2 MICHIGAN v. BRYANT

Syllabus

interrogation under circumstances objectively indicating that the [in

terrogation’s] primary purpose . . . is to enable police assistance to

meet an ongoing emergency,” but they “are testimonial when the cir

cumstances objectively indicate that there is no such ongoing emer

gency, and that the [interrogation’s] primary purpose is to establish

or prove past events potentially relevant to later criminal prosecu

tion.” 547 U. S., at 822. Thus, a recording of a 911 call describing an

ongoing domestic disturbance was nontestimonial in Davis, where

the victim’s “elicited statements were necessary to be able to resolve

[the ongoing] emergency,” and the statements were not formal. Id.,

at 827. But the statements in Hammon were testimonial, where the

victim was interviewed after the event in a room separate from her

husband and “deliberately recounted, in response to police question

ing” the past events. Id., at 830. Here, the context is a nondomestic

dispute, with the “ongoing emergency” extending beyond an initial

victim to a potential threat to the responding police and the public.

This context requires additional clarification of what Davis meant by

“the primary purpose of the interrogation is to enable police assis

tance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.

(b) To make the “primary purpose” determination, the Court must

objectively evaluate the circumstances in which the encounter be

tween the individual and the police occurs and the parties’ state

ments and actions. Pp. 12–23.

(1) The primary purpose inquiry is objective. The circumstances

in which an encounter occurs—e.g., at or near a crime scene versus at

a police station, during an ongoing emergency or afterwards—are

clearly matters of objective fact. And the relevant inquiry into the

parties’ statements and actions is not the subjective or actual purpose

of the particular parties, but the purpose that reasonable partici

pants would have had, as ascertained from the parties’ statements

and actions and the circumstances in which the encounter occurred.

P. 13.

(2) The existence of an “ongoing emergency” at the time of the

encounter is among the most important circumstances informing the

interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828–

830. An emergency focuses the participants not on “prov[ing] past

events potentially relevant to later criminal prosecution,” id., at 822,

but on “end[ing] a threatening situation,” id., at 832. The Michigan

Supreme Court failed to appreciate that whether an emergency exists

and is ongoing is a highly context-dependent inquiry. An assessment

of whether an emergency threatening the police and public is ongoing

cannot narrowly focus on whether the threat to the first victim has

been neutralized because the threat to the first responders and public

may continue. The State Supreme Court also did not appreciate that

Cite as: 562 U. S. ____ (2011) 3

Syllabus

an emergency’s duration and scope may depend in part on the type of

weapon involved; the court below relied on Davis and Hammon,

where the assailants used their fists, as controlling the scope of an

emergency involving a gun. A victim’s medical condition is important

to the primary purpose inquiry to the extent that it sheds light on the

victim’s ability to have any purpose at all in responding to police

questions and on the likelihood that any such purpose would be a tes

timonial one. It also provides important context for first responders

to judge the existence and magnitude of a continuing threat to the

victim, themselves, and the public. This does not mean that an

emergency lasts the entire time that a perpetrator is on the loose, but

trial courts can determine in the first instance when an interrogation

transitions from nontestimonial to testimonial. Finally, whether an

ongoing emergency exists is simply one factor informing the ultimate

inquiry regarding an interrogation’s “primary purpose.” Another is

the encounter’s informality. Formality suggests the absence of an

emergency, but informality does not necessarily indicate the presence

of an emergency or the lack of testimonial intent. The facts here—

the questioning occurred in an exposed, public area, before emer

gency medical services arrived, and in a disorganized fashion—

distinguish this case from Crawford’s formal station-house interroga

tion. Pp. 14–20.

(3) The statements and actions of both the declarant and interro

gators also provide objective evidence of the interrogation’s primary

purpose. Looking to the contents of both the questions and the an

swers ameliorates problems that could arise from looking solely to

one participant, since both interrogators and declarants may have

mixed motives. Police officers’ dual responsibilities as both first re

sponders and criminal investigators may lead them to act with differ

ent motives simultaneously or in quick succession. And during an

ongoing emergency, victims may want the threat to end, but may not

envision prosecution. Alternatively, a severely injured victim may

have no purpose at all in answering questions. Taking into account

such injuries does not make the inquiry subjective. The inquiry still

focuses on the understanding and purpose of a reasonable victim in

the actual victim’s circumstances, which prominently include the vic

tim’s physical state. Objectively ascertaining the primary purpose of

the interrogation by examining the statements and actions of all par

ticipants is also consistent with this Court’s prior holdings. E.g.,

Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23.

(c) Here, the circumstances of the encounter as well as the state

ments and actions of Covington and the police objectively indicate

that the interrogation’s “primary purpose” was “to enable police as

sistance to meet an ongoing emergency,” 547 U. S., at 822. The cir

4 MICHIGAN v. BRYANT

Syllabus

cumstances of the interrogation involved an armed shooter, whose

motive for and location after the shooting were unknown and who

had mortally wounded Covington within a few blocks and a few min

utes of the location where police found Covington. Unlike the emer

gencies in Davis and Hammon, this dispute’s potential scope and

thus the emergency encompassed a potential threat to the police and

the public. And since this case involved a gun, the physical separa

tion that was sufficient to end the emergency in Hammon was not

necessarily sufficient to end the threat here. Informed by the circum

stances of the ongoing emergency, the Court now turns to determin

ing the “primary purpose of the interrogation” as evidenced by the

statements and actions of Covington and the police. The circum

stances of the encounter provide important context for understanding

Covington’s statements to the police. When he responded to their

questions, he was lying in a gas station parking lot bleeding from a

mortal gunshot wound, and his answers were punctuated with ques

tions about when emergency medical services would arrive. Thus,

this Court cannot say that a person in his situation would have had a

“primary purpose” “to establish or prove past events potentially rele

vant to later criminal prosecution.” Ibid. For their part, the police

responded to a call that a man had been shot. They did not know

why, where, or when the shooting had occurred; the shooter’s loca

tion; or anything else about the crime. They asked exactly the type of

questions necessary to enable them “to meet an ongoing emergency.”

Ibid. Nothing in Covington’s responses indicated to the police that

there was no emergency or that the emergency had ended. Finally,

this situation is more similar to the informal, harried 911 call in

Davis than to the structured, station-house interview in Crawford.

The officers all arrived at different times; asked, upon arrival, what

had happened; and generally did not conduct a structured interroga

tion. The informality suggests that their primary purpose was to ad

dress what they considered to be an ongoing emergency, and the cir

cumstances lacked a formality that would have alerted Covington to

or focused him on the possible future prosecutorial use of his state

ments. Pp. 23–32.

483 Mich. 132, 768 N. W. 2d 65, vacated and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed

an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J.,

filed dissenting opinions. KAGAN, J., took no part in the consideration

or decision of the case.

Cite as: 562 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–150

_________________

MICHIGAN, PETITIONER v. RICHARD PERRY

BRYANT

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

At respondent Richard Bryant’s trial, the court admitted

statements that the victim, Anthony Covington, made to

police officers who discovered him mortally wounded in a

gas station parking lot. A jury convicted Bryant of, inter

alia, second-degree murder. 483 Mich. 132, 137, 768

N. W. 2d 65, 67–68 (2009). On appeal, the Supreme Court

of Michigan held that the Sixth Amendment’s Confronta

tion Clause, as explained in our decisions in Crawford v.

Washington, 541 U. S. 36 (2004), and Davis v. Washington,

547 U. S. 813 (2006), rendered Covington’s statements

inadmissible testimonial hearsay, and the court reversed

Bryant’s conviction. 483 Mich., at 157, 768 N. W. 2d, at

79. We granted the State’s petition for a writ of certiorari

to consider whether the Confrontation Clause barred the

admission at trial of Covington’s statements to the police.

We hold that the circumstances of the interaction between

Covington and the police objectively indicate that the

“primary purpose of the interrogation” was “to enable

police assistance to meet an ongoing emergency.” Davis,

547 U. S., at 822. Therefore, Covington’s identification

2 MICHIGAN v. BRYANT

Opinion of the Court

and description of the shooter and the location of the

shooting were not testimonial statements, and their ad

mission at Bryant’s trial did not violate the Confrontation

Clause. We vacate the judgment of the Supreme Court of

Michigan and remand.

I

Around 3:25 a.m. on April 29, 2001, Detroit, Michigan

police officers responded to a radio dispatch indicating

that a man had been shot. At the scene, they found the

victim, Anthony Covington, lying on the ground next to his

car in a gas station parking lot. Covington had a gunshot

wound to his abdomen, appeared to be in great pain, and

spoke with difficulty.

The police asked him “what had happened, who had

shot him, and where the shooting had occurred.” 483

Mich., at 143, 768 N. W. 2d, at 71. Covington stated that

“Rick” shot him at around 3 a.m. Id., at 136, and n. 1, 768

N. W. 2d, at 67, and n. 1. He also indicated that he had a

conversation with Bryant, whom he recognized based on

his voice, through the back door of Bryant’s house. Cov

ington explained that when he turned to leave, he was

shot through the door and then drove to the gas station,

where police found him.

Covington’s conversation with the police ended within 5

to 10 minutes when emergency medical services arrived.

Covington was transported to a hospital and died within

hours. The police left the gas station after speaking with

Covington, called for backup, and traveled to Bryant’s

house. They did not find Bryant there but did find blood

and a bullet on the back porch and an apparent bullet hole

in the back door. Police also found Covington’s wallet and

identification outside the house.

At trial, which occurred prior to our decisions in Craw

ford, 541 U. S. 36, and Davis, 547 U. S. 813, the police

officers who spoke with Covington at the gas station testi

Cite as: 562 U. S. ____ (2011) 3

Opinion of the Court

fied about what Covington had told them. The jury re

turned a guilty verdict on charges of second-degree

murder, being a felon in possession of a firearm, and pos

session of a firearm during the commission of a felony.

Bryant appealed, and the Michigan Court of Appeals

affirmed his conviction. No. 247039, 2004 WL 1882661

(Aug. 24, 2004) (per curiam). Bryant then appealed to the

Supreme Court of Michigan, arguing that the trial court

erred in admitting Covington’s statements to the police.

The Supreme Court of Michigan eventually remanded the

case to the Court of Appeals for reconsideration in light of

our 2006 decision in Davis. 477 Mich. 902, 722 N. W. 2d

797 (2006). On remand, the Court of Appeals again af

firmed, holding that Covington’s statements were properly

admitted because they were not testimonial. No. 247039,

2007 WL 675471 (Mar. 6, 2007) (per curiam). Bryant

again appealed to the Supreme Court of Michigan, which

reversed his conviction. 483 Mich. 132, 768 N. W. 2d 65.

Before the Supreme Court of Michigan, Bryant argued

that Covington’s statements to the police were testimonial

under Crawford and Davis and were therefore inadmissi

ble. The State, on the other hand, argued that the state

ments were admissible as “excited utterances” under the

Michigan Rules of Evidence. 483 Mich., at 142, and n. 6,

768 N. W. 2d, at 70, and n. 6. There was no dispute that

Covington was unavailable at trial and Bryant had no

prior opportunity to cross-examine him. The court there

fore assessed whether Covington’s statements to the police

identifying and describing the shooter and the time and

location of the shooting were testimonial hearsay for

purposes of the Confrontation Clause. The court con

cluded that the circumstances “clearly indicate that the

‘primary purpose’ of the questioning was to establish the

facts of an event that had already occurred; the ‘primary

purpose’ was not to enable police assistance to meet an

ongoing emergency.” Id., at 143, 768 N. W. 2d, at 71. The

4 MICHIGAN v. BRYANT

Opinion of the Court

court explained that, in its view, Covington was describing

past events and as such, his “primary purpose in making

these statements to the police . . . was . . . to tell the police

who had committed the crime against him, where the

crime had been committed, and where the police could find

the criminal.” Id., at 144, 768 N. W. 2d, at 71. Noting

that the officers’ actions did not suggest that they per

ceived an ongoing emergency at the gas station, the court

held that there was in fact no ongoing emergency. Id., at

145–147, 768 N. W. 2d, at 71–73. The court distinguished

the facts of this case from those in Davis, where we held a

declarant’s statements in a 911 call to be nontestimonial.

It instead analogized this case to Hammon v. Indiana,

which we decided jointly with Davis and in which we

found testimonial a declarant’s statements to police just

after an assault. See 547 U. S., at 829–832. Based on this

analysis, the Supreme Court of Michigan held that the

admission of Covington’s statements constituted prejudi

cial plain error warranting reversal and ordered a new

trial. 483 Mich., at 151–153, 768 N. W. 2d, at 75–76. The

court did not address whether, absent a Confrontation

Clause bar, the statements’ admission would have been

otherwise consistent with Michigan’s hearsay rules or due

process.1

——————

1 The Supreme Court of Michigan held that the question whether the

victim’s statements would have been admissible as “dying declarations”

was not properly before it because at the preliminary examination, the

prosecution, after first invoking both the dying declaration and excited

utterance hearsay exceptions, established the factual foundation only

for admission of the statements as excited utterances. The trial court

ruled that the statements were admissible as excited utterances and

did not address their admissibility as dying declarations. 483 Mich., at

153–154, 768 N. W. 2d, at 76–77. This occurred prior to our 2004

decision in Crawford v. Washington, 541 U. S. 36, where we first

suggested that dying declarations, even if testimonial, might be admis

sible as a historical exception to the Confrontation Clause. Id., at 56,

n. 6; see also Giles v. California, 554 U. S. 353, 358–359 (2008). We

Cite as: 562 U. S. ____ (2011) 5

Opinion of the Court

The majority’s opinion provoked two dissents, both of

which would have held Covington’s statements admissible

because they were made in circumstances indicating that

their “primary purpose” was to assist police in addressing

an ongoing emergency. Id., at 157, 768 N. W. 2d, at 79

(opinion of Weaver, J.); id., at 157–158, 768 N. W. 2d, at

79 (opinion of Corrigan, J.). Justice Corrigan’s dissent

explained that the time and space between “the onset of

an emergency and statements about that emergency

clearly must be considered in context.” Id., at 161, 768

N. W. 2d, at 80. Justice Corrigan concluded that the

objective circumstances of Covington’s interaction with

police rendered this case more similar to the nontestimo

nial statements in Davis than to the testimonial state

ments in Crawford. 483 Mich., at 164, 768 N. W. 2d,

at 82.

We granted certiorari to determine whether the Con

frontation Clause barred admission of Covington’s state

ments. 559 U. S. ___ (2010).

II

The Confrontation Clause of the Sixth Amendment

states: “In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” The Fourteenth Amendment renders the

Clause binding on the States. Pointer v. Texas, 380 U. S.

400, 403 (1965). In Ohio v. Roberts, 448 U. S. 56, 66

(1980), we explained that the confrontation right does not

bar admission of statements of an unavailable witness if

the statements “bea[r] adequate ‘indicia of reliability.’ ”

——————

noted in Crawford that we “need not decide in this case whether the

Sixth Amendment incorporates an exception for testimonial dying

declarations.” 541 U. S., at 56, n. 6. Because of the State’s failure to

preserve its argument with regard to dying declarations, we similarly

need not decide that question here. See also post, p. __ (GINSBURG, J.,

dissenting).

6 MICHIGAN v. BRYANT

Opinion of the Court

We held that reliability can be established if “the evidence

falls within a firmly rooted hearsay exception,” or if it does

not fall within such an exception, then if it bears “particu

larized guarantees of trustworthiness.” Ibid.

Nearly a quarter century later, we decided Crawford v.

Washington, 541 U. S. 36. Petitioner Michael Crawford

was prosecuted for stabbing a man who had allegedly

attempted to rape his wife, Sylvia. Sylvia witnessed the

stabbing, and later that night, after she and her husband

were both arrested, police interrogated her about the

incident. At trial, Sylvia Crawford claimed spousal privi

lege and did not testify, but the State introduced a tape

recording of Sylvia’s statement to the police in an effort to

prove that the stabbing was not in self-defense, as Michael

Crawford claimed. The Washington Supreme Court af

firmed Crawford’s conviction because it found Sylvia’s

statement to be reliable, as required under Ohio v. Rob

erts. We reversed, overruling Ohio v. Roberts. 541 U. S.,

at 60–68; see also Davis, 547 U. S., at 825, n. 4.

Crawford examined the common-law history of the

confrontation right and explained that “the principal evil

at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure, and particularly its

use of ex parte examinations as evidence against the ac

cused.” 541 U. S., at 50. We noted that in England, pre

trial examinations of suspects and witnesses by govern

ment officials “were sometimes read in court in lieu of live

testimony.” Id., at 43. In light of this history, we empha

sized the word “witnesses” in the Sixth Amendment, defin

ing it as “those who ‘bear testimony.’ ” Id., at 51 (quoting

2 N. Webster, An American Dictionary of the English

Language (1828)). We defined “testimony” as “ ‘ [a] solemn

declaration or affirmation made for the purpose of estab

lishing or proving some fact.’ ” 541 U. S., at 51 (quoting

Webster). We noted that “[a]n accuser who makes a for

mal statement to government officers bears testimony in a

Cite as: 562 U. S. ____ (2011) 7

Opinion of the Court

sense that a person who makes a casual remark to an

acquaintance does not.” Ibid. We therefore limited the

Confrontation Clause’s reach to testimonial statements

and held that in order for testimonial evidence to be ad

missible, the Sixth Amendment “demands what the com

mon law required: unavailability and a prior opportunity

for cross-examination.” Id., at 68. Although “leav[ing] for

another day any effort to spell out a comprehensive defini

tion of ‘testimonial,’ ” Crawford noted that “at a minimum”

it includes “prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and . . . police

interrogations.” Ibid. Under this reasoning, we held that

Sylvia Crawford’s statements in the course of police ques

tioning were testimonial and that their admission when

Michael Crawford “had no opportunity to cross-examine

her” due to spousal privilege was “sufficient to make out a

violation of the Sixth Amendment.” Ibid.

In 2006, the Court in Davis v. Washington and Hammon

v. Indiana, 547 U. S. 813, took a further step to “deter

mine more precisely which police interrogations produce

testimony” and therefore implicate a Confrontation Clause

bar. Id., at 822. We explained that when Crawford said

that

“ ‘interrogations by law enforcement officers fall

squarely within [the] class’ of testimonial hearsay, we

had immediately in mind (for that was the case before

us) interrogations solely directed at establishing the

facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator. The product of

such interrogation, whether reduced to a writing

signed by the declarant or embedded in the memory

(and perhaps notes) of the interrogating officer, is tes

timonial.” Davis, 547 U. S., at 826.

We thus made clear in Davis that not all those questioned

by the police are witnesses and not all “interrogations by

8 MICHIGAN v. BRYANT

Opinion of the Court

law enforcement officers,” Crawford, 541 U. S., at 53, are

subject to the Confrontation Clause.2

Davis and Hammon were both domestic violence cases.

In Davis, Michelle McCottry made the statements at issue

to a 911 operator during a domestic disturbance with

Adrian Davis, her former boyfriend. McCottry told the

operator, “ ‘He’s here jumpin’ on me again,’ ” and, “ ‘He’s

usin’ his fists.’ ” 547 U. S., at 817. The operator then

asked McCottry for Davis’ first and last names and middle

initial, and at that point in the conversation McCottry

reported that Davis had fled in a car. Id., at 818.

McCottry did not appear at Davis’ trial, and the State

introduced the recording of her conversation with the 911

operator. Id., at 819.

In Hammon, decided along with Davis, police responded

to a domestic disturbance call at the home of Amy and

Hershel Hammon, where they found Amy alone on the

front porch. Ibid. She appeared “ ‘somewhat frightened,’ ”

but told them “ ‘nothing was the matter.’ ” Ibid. (quoting

Hammon v. State, 829 N. E. 2d 444, 446–447 (Ind. 2005)).

She gave the police permission to enter the house, where

they saw a gas heating unit with the glass front shattered

on the floor. One officer remained in the kitchen with

Hershel, while another officer talked to Amy in the living

room about what had happened. Hershel tried several

times to participate in Amy’s conversation with the police

and became angry when the police required him to stay

separated from Amy. 547 U. S., at 819–820. The police

asked Amy to fill out and sign a battery affidavit. She

wrote: “ ‘Broke our Furnace & shoved me down on the floor

——————

2 We noted in Crawford that “[w]e use the term ‘interrogation’ in its

colloquial, rather than any technical legal, sense,” and that “[j]ust as

various definitions of ‘testimonial’ exist, one can imagine various

definitions of ‘interrogation,’ and we need not select among them in this

case.” 541 U. S., at 53, n. 4. Davis did not abandon those qualifica

tions; nor do we do so here.

Cite as: 562 U. S. ____ (2011) 9

Opinion of the Court

into the broken glass. Hit me in the chest and threw me

down. Broke our lamps & phone. Tore up my van where I

couldn’t leave the house. Attacked my daughter.’ ” Id., at

820. Amy did not appear at Hershel’s trial, so the police

officers who spoke with her testified as to her statements

and authenticated the affidavit. Ibid. The trial court

admitted the affidavit as a present sense impression and

admitted the oral statements as excited utterances under

state hearsay rules. Ibid. The Indiana Supreme Court

affirmed Hammon’s conviction, holding that Amy’s oral

statements were not testimonial and that the admission of

the affidavit, although erroneous because the affidavit was

testimonial, was harmless. Hammon v. State, 829 N. E.

2d, at 458–459.

To address the facts of both cases, we expanded upon

the meaning of “testimonial” that we first employed in

Crawford and discussed the concept of an ongoing emer

gency. We explained:

“Statements are nontestimonial when made in the

course of police interrogation under circumstances ob

jectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an

ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no

such ongoing emergency, and that the primary pur

pose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecu

tion.” Davis, 547 U. S., at 822.

Examining the Davis and Hammon statements in light of

those definitions, we held that the statements at issue

in Davis were nontestimonial and the statements in

Hammon were testimonial. We distinguished the state

ments in Davis from the testimonial statements in Craw

ford on several grounds, including that the victim in Davis

was “speaking about events as they were actually happen

10 MICHIGAN v. BRYANT

Opinion of the Court

ing, rather than ‘describ[ing] past events,’ ” that there was

an ongoing emergency, that the “elicited statements were

necessary to be able to resolve the present emergency,”

and that the statements were not formal. 547 U. S., at

827. In Hammon, on the other hand, we held that, “[i]t is

entirely clear from the circumstances that the interroga

tion was part of an investigation into possibly criminal

past conduct.” Id., at 829. There was “no emergency in

progress.” Ibid. The officer questioning Amy “was not

seeking to determine . . . ‘what is happening,’ but rather

‘what happened.’ ” Id., at 830. It was “formal enough”

that the police interrogated Amy in a room separate from

her husband where, “some time after the events described

were over,” she “deliberately recounted, in response to

police questioning, how potentially criminal past events

began and progressed.” Ibid. Because her statements

“were neither a cry for help nor the provision of informa

tion enabling officers immediately to end a threatening

situation,” id., at 832, we held that they were testimonial.

Davis did not “attemp[t] to produce an exhaustive classi

fication of all conceivable statements—or even all conceiv

able statements in response to police interrogation—as

either testimonial or nontestimonial.” Id., at 822.3 The

——————

3 Davis explained that 911 operators “may at least be agents of

law enforcement when they conduct interrogations of 911 callers,” and

therefore “consider[ed] their acts to be acts of the police” for purposes of

the opinion. 547 U. S., at 823, n. 2. Davis explicitly reserved the

question of “whether and when statements made to someone other than

law enforcement personnel are ‘testimonial.’ ” Ibid. We have no need to

decide that question in this case either because Covington’s statements

were made to police officers. The dissent also claims to reserve this

question, see post, at 3, n. 1 (opinion of SCALIA, J.), but supports one of

its arguments by relying on King v. Brasier, 1 Leach 199, 200, 168 Eng.

Rep. 202, 202–203 (K. B. 1779), which involved statements made by a

child to her mother—a private citizen—just after the child had been

sexually assaulted. See also Crawford v. Washington, 541 U. S. 36, 69–

70 (2004) (Rehnquist, C. J., concurring in judgment) (citing King v.

Cite as: 562 U. S. ____ (2011) 11

Opinion of the Court

basic purpose of the Confrontation Clause was to “targe[t]”

the sort of “abuses” exemplified at the notorious treason

trial of Sir Walter Raleigh. Crawford, 541 U. S., at 51.

Thus, the most important instances in which the Clause

restricts the introduction of out-of-court statements are

those in which state actors are involved in a formal, out-of

court interrogation of a witness to obtain evidence for

trial.4 See id., at 43–44. Even where such an interroga

tion is conducted with all good faith, introduction of the

resulting statements at trial can be unfair to the accused

if they are untested by cross-examination. Whether for

mal or informal, out-of-court statements can evade the

basic objective of the Confrontation Clause, which is to

prevent the accused from being deprived of the opportu

nity to cross-examine the declarant about statements

taken for use at trial. When, as in Davis, the primary

purpose of an interrogation is to respond to an “ongoing

emergency,” its purpose is not to create a record for trial

and thus is not within the scope of the Clause. But there

may be other circumstances, aside from ongoing emergen

cies, when a statement is not procured with a primary

purpose of creating an out-of-court substitute for trial

testimony. In making the primary purpose determination,

standard rules of hearsay, designed to identify some state

——————

Brasier for the different proposition that “out-of-court statements made

by someone other than the accused and not taken under oath, unlike ex

parte depositions or affidavits, were generally not considered substan

tive evidence upon which a conviction could be based”).

4 Contrary to the dissent’s excited suggestion, nothing in this opinion

casts “favorable light,” post, at 11 (opinion of SCALIA, J.), on the conduct

of Sir Walter Raleigh’s trial or other 16th- and 17th-century English

treason trials. The dissent is correct that such trials are “unquestiona

bly infamous,” ibid., and our decision here confirms, rather than un

dermines, that assessment. See also n. 17, infra. For all of the

reasons discussed in JUSTICE THOMAS’ opinion concurring in the judg

ment, the situation presented in this case is nothing like the circum

stances presented by Sir Walter Raleigh’s trial. See post, p. __.

12 MICHIGAN v. BRYANT

Opinion of the Court

ments as reliable, will be relevant. Where no such pri

mary purpose exists, the admissibility of a statement is

the concern of state and federal rules of evidence, not the

Confrontation Clause.5

Deciding this case also requires further explanation of

the “ongoing emergency” circumstance addressed in Davis.

Because Davis and Hammon arose in the domestic vio

lence context, that was the situation “we had immediately

in mind (for that was the case before us).” 547 U. S., at

826. We now face a new context: a nondomestic dispute,

involving a victim found in a public location, suffering

from a fatal gunshot wound, and a perpetrator whose

location was unknown at the time the police located the

victim. Thus, we confront for the first time circumstances

in which the “ongoing emergency” discussed in Davis

extends beyond an initial victim to a potential threat to

the responding police and the public at large. This new

context requires us to provide additional clarification with

regard to what Davis meant by “the primary purpose of

the interrogation is to enable police assistance to meet an

ongoing emergency.” Id., at 822.

III

To determine whether the “primary purpose” of an

interrogation is “to enable police assistance to meet an

ongoing emergency,” Davis, 547 U. S., at 822, which would

render the resulting statements nontestimonial, we objec

tively evaluate the circumstances in which the encounter

occurs and the statements and actions of the parties.

——————

5 See Davis v. Washington, 547 U. S. 813, 823–824 (2006) (explaining

the question before the Court as “whether the Confrontation Clause

applies only to testimonial hearsay” and answering in the affirmative

because “[a] limitation so clearly reflected in the text of the constitu

tional provision must fairly be said to mark out not merely its ‘core,’ but

its perimeter”). See also post, at 2 (SCALIA, J., dissenting).

Cite as: 562 U. S. ____ (2011)

13

Opinion of the Court

A

The Michigan Supreme Court correctly understood that

this inquiry is objective.6 483 Mich., at 142, 768 N. W. 2d,

at 70. Davis uses the word “objective” or “objectively” no

fewer than eight times in describing the relevant inquiry.

See 547 U. S., at 822, 826–828, 830–831, and n. 5; see, e.g.,

id., at 826 (“The question before us in Davis, then, is

whether, objectively considered, the interrogation that

took place in the course of the 911 call produced testimo

nial statements”). “Objectively” also appears in the defini

tions of both testimonial and nontestimonial statements

that Davis established. Id., at 822.

An objective analysis of the circumstances of an encoun

ter and the statements and actions of the parties to it

provides the most accurate assessment of the “primary

purpose of the interrogation.” The circumstances in which

an encounter occurs—e.g., at or near the scene of the crime

versus at a police station, during an ongoing emergency

or afterwards—are clearly matters of objective fact. The

statements and actions of the parties must also be objec

tively evaluated. That is, the relevant inquiry is not the

subjective or actual purpose of the individuals involved in

a particular encounter, but rather the purpose that rea

sonable participants would have had, as ascertained from

the individuals’ statements and actions and the circum

stances in which the encounter occurred.7

——————

6 Bryant suggests that Michigan is arguing for “a subjective analysis

of the intent of the interrogator’s questioning.” Brief for Respondent

12. We do not read Michigan’s brief to be arguing for a subjective

inquiry, and any such argument would be in error. We do not under

stand the dissent to disagree that the inquiry is objective.

7 This approach is consistent with our rejection of subjective inquiries

in other areas of criminal law. See, e.g., Whren v. United States, 517

U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reason

ableness subjectively in light of the officers’ actual motivations); New

York v. Quarles, 467 U. S. 649, 655–656, and n. 6 (1984) (holding that

an officer’s subjective motivation is irrelevant to determining the

14 MICHIGAN v. BRYANT

Opinion of the Court

B

As our recent Confrontation Clause cases have ex

plained, the existence of an “ongoing emergency” at the

time of an encounter between an individual and the police

is among the most important circumstances informing the

“primary purpose” of an interrogation. See Davis, 547

U. S., at 828–830; Crawford, 541 U. S., at 65. The exis

tence of an ongoing emergency is relevant to determining

the primary purpose of the interrogation because an

emergency focuses the participants on something other

than “prov[ing] past events potentially relevant to later

criminal prosecution.”8 Davis, 547 U. S., at 822. Rather,

it focuses them on “end[ing] a threatening situation.” Id.,

at 832. Implicit in Davis is the idea that because the

prospect of fabrication in statements given for the primary

purpose of resolving that emergency is presumably signifi

cantly diminished, the Confrontation Clause does not

require such statements to be subject to the crucible of

cross-examination.

This logic is not unlike that justifying the excited utter

ance exception in hearsay law. Statements “relating to a

startling event or condition made while the declarant was

under the stress of excitement caused by the event or

——————

applicability of the public safety exception to Miranda v. Arizona, 384

U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980)

(holding that a police officer’s subjective intent to obtain incriminatory

statements is not relevant to determining whether an interrogation has

occurred).

8 The existence of an ongoing emergency must be objectively assessed

from the perspective of the parties to the interrogation at the time, not

with the benefit of hindsight. If the information the parties knew at

the time of the encounter would lead a reasonable person to believe

that there was an emergency, even if that belief was later proved

incorrect, that is sufficient for purposes of the Confrontation Clause.

The emergency is relevant to the “primary purpose of the interrogation”

because of the effect it has on the parties’ purpose, not because of its

actual existence.

Cite as: 562 U. S. ____ (2011) 15

Opinion of the Court

condition,” Fed. Rule Evid. 803(2); see also Mich. Rule

Evid. 803(2) (2010), are considered reliable because the

declarant, in the excitement, presumably cannot form a

falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990)

(“The basis for the ‘excited utterance’ exception . . . is that

such statements are given under circumstances that

eliminate the possibility of fabrication, coaching, or con

fabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s

Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed.

2010) (same); Advisory Committee’s Notes on Fed. Rule

Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing

emergency has a similar effect of focusing an individual’s

attention on responding to the emergency.9

Following our precedents, the court below correctly

began its analysis with the circumstances in which Cov

ington interacted with the police. 483 Mich., at 143, 768

——————

9 Many other exceptions to the hearsay rules similarly rest on the

belief that certain statements are, by their nature, made for a purpose

other than use in a prosecution and therefore should not be barred by

hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement

by a co-conspirator during and in furtherance of the conspiracy); 803(4)

(Statements for Purposes of Medical Diagnosis or Treatment); 803(6)

(Records of Regularly Conducted Activity); 803(8) (Public Records and

Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Reli

gious Organizations); 803(12) (Marriage, Baptismal, and Similar

Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against

Interest); see also Melendez-Diaz v. Massachusetts, 557 U. S. __, __

(2009) (slip op., at 18) (“Business and public records are generally

admissible absent confrontation not because they qualify under an

exception to the hearsay rules, but because—having been created for

the administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial—they are not testimonial”);

Giles v. California, 554 U. S., at 376 (noting in the context of domestic

violence that “[s]tatements to friends and neighbors about abuse and

intimidation and statements to physicians in the course of receiving

treatment would be excluded, if at all, only by hearsay rules”); Craw

ford, 541 U. S., at 56 (“Most of the hearsay exceptions covered state

ments that by their nature were not testimonial—for example, business

records or statements in furtherance of a conspiracy”).

16 MICHIGAN v. BRYANT

Opinion of the Court

N. W. 2d, at 71. But in doing so, the court construed Davis

to have decided more than it did and thus employed an

unduly narrow understanding of “ongoing emergency” that

Davis does not require.

First, the Michigan Supreme Court repeatedly and

incorrectly asserted that Davis “defined” “ ‘ongoing emer

gency.’ ” 483 Mich., at 147, 768 N. W. 2d, at 73; see also

id., at 144, 768 N. W. 2d, at 71–72. In fact, Davis did not

even define the extent of the emergency in that case. The

Michigan Supreme Court erroneously read Davis as decid

ing that “the statements made after the defendant stopped

assaulting the victim and left the premises did not occur

during an ‘ongoing emergency.’ ” 483 Mich., at 150, n. 15,

768 N. W. 2d, at 75, n. 15. We explicitly explained in

Davis, however, that we were asked to review only the

testimonial nature of Michelle McCottry’s initial state

ments during the 911 call; we therefore merely assumed

the correctness of the Washington Supreme Court’s hold

ing that admission of her other statements was harmless,

without deciding whether those subsequent statements

were also made for the primary purpose of resolving an

ongoing emergency. 547 U. S., at 829.

Second, by assuming that Davis defined the outer

bounds of “ongoing emergency,” the Michigan Supreme

Court failed to appreciate that whether an emergency

exists and is ongoing is a highly context-dependent in

quiry. See Brief for United States as Amicus Curiae 20.

Davis and Hammon involved domestic violence, a known

and identified perpetrator, and, in Hammon, a neutralized

threat. Because Davis and Hammon were domestic vio

lence cases, we focused only on the threat to the victims

and assessed the ongoing emergency from the perspective

of whether there was a continuing threat to them. 547

U. S., at 827, 829–830.

Domestic violence cases like Davis and Hammon often

have a narrower zone of potential victims than cases

Cite as: 562 U. S. ____ (2011) 17

Opinion of the Court

involving threats to public safety. An assessment of

whether an emergency that threatens the police and pub

lic is ongoing cannot narrowly focus on whether the threat

solely to the first victim has been neutralized because the

threat to the first responders and public may continue.

See 483 Mich., at 164, 768 N. W. 2d, at 82 (Corrigan, J.,

dissenting) (examining the threat to the victim, police, and

the public); Brief for United States as Amicus Curiae 19–

20 (“An emergency posed by an unknown shooter who

remains at large does not automatically abate just because

the police can provide security to his first victim”).

The Michigan Supreme Court also did not appreciate

that the duration and scope of an emergency may depend

in part on the type of weapon employed. The court relied

on Davis and Hammon, in which the assailants used their

fists, as controlling the scope of the emergency here, which

involved the use of a gun. The problem with that reason

ing is clear when considered in light of the assault on Amy

Hammon. Hershel Hammon was armed only with his fists

when he attacked his wife, so removing Amy to a separate

room was sufficient to end the emergency. 547 U. S., at

830–832. If Hershel had been reported to be armed with a

gun, however, separation by a single household wall might

not have been sufficient to end the emergency. Id., at 819.

The Michigan Supreme Court’s failure to focus on the

context-dependent nature of our Davis decision also led it

to conclude that the medical condition of a declarant is

irrelevant. 483 Mich., at 149, 768 N. W. 2d, at 74 (“The

Court said nothing at all that would remotely suggest that

whether the victim was in need of medical attention was

in any way relevant to whether there was an ‘ongoing

emergency’ ”). But Davis and Hammon did not present

medical emergencies, despite some injuries to the victims.

547 U. S., at 818, 820. Thus, we have not previously

considered, much less ruled out, the relevance of a victim’s

severe injuries to the primary purpose inquiry.

18 MICHIGAN v. BRYANT

Opinion of the Court

Taking into account the victim’s medical state does not,

as the Michigan Supreme Court below thought, “rende[r]

non-testimonial” “all statements made while the police are

questioning a seriously injured complainant.” 483 Mich.,

at 149, 768 N. W. 2d, at 74. The medical condition of the

victim is important to the primary purpose inquiry to the

extent that it sheds light on the ability of the victim to

have any purpose at all in responding to police questions

and on the likelihood that any purpose formed would

necessarily be a testimonial one. The victim’s medical

state also provides important context for first responders

to judge the existence and magnitude of a continuing

threat to the victim, themselves, and the public.

As the Solicitor General’s brief observes, Brief for

United States as Amicus Curiae 20, and contrary to the

Michigan Supreme Court’s claims, 483 Mich., at 147, 768

N. W. 2d, at 73, none of this suggests that an emergency is

ongoing in every place or even just surrounding the victim

for the entire time that the perpetrator of a violent crime

is on the loose. As we recognized in Davis, “a conversation

which begins as an interrogation to determine the need for

emergency assistance” can “evolve into testimonial state

ments.” 547 U. S., at 828 (internal quotation marks omit

ted). This evolution may occur if, for example, a declarant

provides police with information that makes clear that

what appeared to be an emergency is not or is no longer an

emergency or that what appeared to be a public threat is

actually a private dispute. It could also occur if a perpe

trator is disarmed, surrenders, is apprehended, or, as in

Davis, flees with little prospect of posing a threat to the

public. Trial courts can determine in the first instance

when any transition from nontestimonial to testimonial

occurs,10 and exclude “the portions of any statement that

——————

10 Recognizing the evolutionary potential of a situation in criminal

law is not unique to the Confrontation Clause context. We noted in

Cite as: 562 U. S. ____ (2011) 19

Opinion of the Court

have become testimonial, as they do, for example, with

unduly prejudicial portions of otherwise admissible evi

dence.” Id., at 829.

Finally, our discussion of the Michigan Supreme Court’s

misunderstanding of what Davis meant by “ongoing emer

gency” should not be taken to imply that the existence vel

non of an ongoing emergency is dispositive of the testimo

nial inquiry. As Davis made clear, whether an ongoing

emergency exists is simply one factor—albeit an important

factor—that informs the ultimate inquiry regarding the

“primary purpose” of an interrogation. Another factor the

Michigan Supreme Court did not sufficiently account for is

the importance of informality in an encounter between a

victim and police. Formality is not the sole touchstone of

our primary purpose inquiry because, although formality

suggests the absence of an emergency and therefore an

increased likelihood that the purpose of the interrogation

is to “establish or prove past events potentially relevant to

later criminal prosecution,” id., at 822, informality does

not necessarily indicate the presence of an emergency or

the lack of testimonial intent. Cf. id., at 826 (explaining

that Confrontation Clause requirements cannot “readily

be evaded” by the parties deliberately keeping the written

product of an interrogation informal “instead of having the

declarant sign a deposition”). The court below, however,

too readily dismissed the informality of the circumstances

in this case in a single brief footnote and in fact seems to

have suggested that the encounter in this case was formal.

483 Mich., at 150, n. 16, 768 N. W. 2d, at 75, n. 16. As we

——————

Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can

and will distinguish almost instinctively between questions necessary

to secure their own safety or the safety of the public and questions

designed solely to elicit testimonial evidence from a suspect, . . . trial

courts will recognize the point at which, for Sixth Amendment pur

poses, statements in response to interrogations become testimonial.”

547 U. S., at 829 (quoting New York v. Quarles, 467 U. S., at 658–659).

20 MICHIGAN v. BRYANT

Opinion of the Court

explain further below, the questioning in this case oc

curred in an exposed, public area, prior to the arrival of

emergency medical services, and in a disorganized fashion.

All of those facts make this case distinguishable from

the formal station-house interrogation in Crawford. See

Davis, 547 U. S., at 827.

C

In addition to the circumstances in which an encounter

occurs, the statements and actions of both the declarant

and interrogators provide objective evidence of the pri

mary purpose of the interrogation. See, e.g., Davis, 547

U. S., at 827 (“[T]he nature of what was asked and an

swered in Davis, again viewed objectively, was such that

the elicited statements were necessary to be able to resolve

the present emergency, rather than simply to learn (as in

Crawford) what had happened in the past” (first emphasis

added)). The Michigan Supreme Court did, at least

briefly, conduct this inquiry. 483 Mich., at 144–147, 768

N. W. 2d, at 71–73.

As the Michigan Supreme Court correctly recognized,

id., at 140, n. 5, 768 N. W. 2d, at 69, n. 5, Davis requires a

combined inquiry that accounts for both the declarant and

the interrogator.11 In many instances, the primary pur

——————

11 Some portions of Davis, however, have caused confusion about

whether the inquiry prescribes examination of one participant to the

exclusion of the other. Davis’ language indicating that a statement’s

testimonial or nontestimonial nature derives from “the primary pur

pose of the interrogation,” 547 U. S., at 822 (emphasis added), could be

read to suggest that the relevant purpose is that of the interrogator. In

contrast, footnote 1 in Davis explains, “it is in the final analysis the

declarant’s statements, not the interrogator’s questions, that the

Confrontation Clause requires us to evaluate.” Id., at 822–823, n. 1.

Bryant draws on the footnote to argue that the primary purpose inquiry

must be conducted solely from the perspective of the declarant, and

argues against adoption of a purpose-of-the-interrogator perspective.

Brief for Respondent 10–13; see also Brief for Richard D. Friedman as

Amicus Curiae 5–15. But this statement in footnote 1 of Davis merely

Cite as: 562 U. S. ____ (2011) 21

Opinion of the Court

pose of the interrogation will be most accurately ascer

tained by looking to the contents of both the questions and

the answers. To give an extreme example, if the police say

to a victim, “Tell us who did this to you so that we can

arrest and prosecute them,” the victim’s response that

“Rick did it,” appears purely accusatory because by virtue

of the phrasing of the question, the victim necessarily has

prosecution in mind when she answers.

The combined approach also ameliorates problems that

could arise from looking solely to one participant. Pre

dominant among these is the problem of mixed motives

on the part of both interrogators and declarants. Police

officers in our society function as both first responders and

criminal investigators. Their dual responsibilities may

mean that they act with different motives simultaneously

or in quick succession. See New York v. Quarles, 467 U. S.

649, 656 (1984) (“Undoubtedly most police officers [decid

ing whether to give Miranda warnings in a possible emer

gency situation] would act out of a host of different, in

stinctive, and largely unverifiable motives—their own

safety, the safety of others, and perhaps as well the desire

to obtain incriminating evidence from the suspect”); see

also Davis, 547 U. S., at 839 (THOMAS, J., concurring in

judgment in part and dissenting in part) (“In many, if not

most, cases where police respond to a report of a crime,

whether pursuant to a 911 call from the victim or other

wise, the purposes of an interrogation, viewed from the

perspective of the police, are both to respond to the emer

——————

acknowledges that the Confrontation Clause is not implicated when

statements are offered “for purposes other than establishing the truth

of the matter asserted.” Crawford, 541 U. S., at 60, n. 9. An interroga

tor’s questions, unlike a declarant’s answers, do not assert the truth of

any matter. The language in the footnote was not meant to determine

how the courts are to assess the nature of the declarant’s purpose, but

merely to remind readers that it is the statements, and not the ques

tions, that must be evaluated under the Sixth Amendment.

22 MICHIGAN v. BRYANT

Opinion of the Court

gency situation and to gather evidence”).

Victims are also likely to have mixed motives when they

make statements to the police. During an ongoing emer

gency, a victim is most likely to want the threat to her and

to other potential victims to end, but that does not neces

sarily mean that the victim wants or envisions prosecution

of the assailant. A victim may want the attacker to be

incapacitated temporarily or rehabilitated. Alternatively,

a severely injured victim may have no purpose at all in

answering questions posed; the answers may be simply

reflexive. The victim’s injuries could be so debilitating

as to prevent her from thinking sufficiently clearly to un

derstand whether her statements are for the purpose of

addressing an ongoing emergency or for the purpose of fu

ture prosecution.12 Taking into account a victim’s injuries

does not transform this objective inquiry into a subjective

one. The inquiry is still objective because it focuses on the

understanding and purpose of a reasonable victim in the

circumstances of the actual victim—circumstances that

prominently include the victim’s physical state.

The dissent suggests, post, at 3–4 (opinion of SCALIA, J.),

that we intend to give controlling weight to the “intentions

of the police,” post, at 4. That is a misreading of our opin

ion. At trial, the declarant’s statements, not the interro

gator’s questions, will be introduced to “establis[h] the

truth of the matter asserted,” Crawford, 541 U. S., at 60,

n. 9, and must therefore pass the Sixth Amendment test.

——————

12 In such a situation, the severe injuries of the victim would un

doubtedly also weigh on the credibility and reliability that the trier of

fact would afford to the statements. Cf. Advisory Committee’s Notes on

Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (noting that although

the “theory” of the excited utterance exception “has been criticized on

the ground that excitement impairs [the] accuracy of observation as

well as eliminating conscious fabrication,” it “finds support in cases

without number” (citing 6 J. Wigmore, Evidence §1750 (J. Chadbourn

rev. 1976))).

Cite as: 562 U. S. ____ (2011) 23

Opinion of the Court

See n. 11, supra. In determining whether a declarant’s

statements are testimonial, courts should look to all of the

relevant circumstances. Even JUSTICE SCALIA concedes

that the interrogator is relevant to this evaluation, post,

at 3, and we agree that “[t]he identity of an interrogator,

and the content and tenor of his questions,” ibid., can illu

minate the “primary purpose of the interrogation.” The

dissent, see post, at 3–5 (opinion of SCALIA, J.), criticizes

the complexity of our approach, but we, at least, are un

willing to sacrifice accuracy for simplicity. Simpler is not

always better, and courts making a “primary purpose”

assessment should not be unjustifiably restrained from

consulting all relevant information, including the state

ments and actions of interrogators.

Objectively ascertaining the primary purpose of the

interrogation by examining the statements and actions of

all participants is also the approach most consistent with

our past holdings. E.g., Davis, 547 U. S., at 822–823, n. 1

(noting that “volunteered testimony” is still testimony and

remains subject to the requirements of the Confrontation

Clause).

IV

As we suggested in Davis, when a court must determine

whether the Confrontation Clause bars the admission of a

statement at trial, it should determine the “primary pur

pose of the interrogation” by objectively evaluating the

statements and actions of the parties to the encounter, in

light of the circumstances in which the interrogation

occurs. The existence of an emergency or the parties’

perception that an emergency is ongoing is among the

most important circumstances that courts must take into

account in determining whether an interrogation is tes

timonial because statements made to assist police in

addressing an ongoing emergency presumably lack the

testimonial purpose that would subject them to the

24 MICHIGAN v. BRYANT

Opinion of the Court

requirement of confrontation.13 As the context of this case

brings into sharp relief, the existence and duration of an

emergency depend on the type and scope of danger posed

to the victim, the police, and the public.

Applying this analysis to the facts of this case is more

difficult than in Davis because we do not have the luxury

of reviewing a transcript of the conversation between the

victim and the police officers. Further complicating our

task is the fact that the trial in this case occurred before

our decisions in Crawford and Davis. We therefore review

a record that was not developed to ascertain the “primary

purpose of the interrogation.”

We first examine the circumstances in which the inter

rogation occurred. The parties disagree over whether

there was an emergency when the police arrived at the gas

station. Bryant argues, and the Michigan Supreme Court

accepted, 483 Mich., at 147, 768 N. W. 2d, at 73, that there

was no ongoing emergency because “there . . . was no

criminal conduct occurring. No shots were being fired, no

one was seen in possession of a firearm, nor were any

witnesses seen cowering in fear or running from the

scene.” Brief for Respondent 27. Bryant, while conceding

that “a serious or life-threatening injury creates a medical

emergency for a victim,” id., at 30, further argues that a

declarant’s medical emergency is not relevant to the ongo

——————

13 Of course the Confrontation Clause is not the only bar to admissi

bility of hearsay statements at trial. State and federal rules of evidence

prohibit the introduction of hearsay, subject to exceptions. Consistent

with those rules, the Due Process Clauses of the Fifth and Fourteenth

Amendments may constitute a further bar to admission of, for example,

unreliable evidence. See Montana v. Egelhoff, 518 U. S. 37, 53 (1996)

(plurality opinion) (“[E]rroneous evidentiary rulings can, in combina

tion, rise to the level of a due process violation”); Dutton v. Evans, 400

U. S. 74, 96–97 (1970) (Harlan, J., concurring in result) (“[T]he Fifth

and Fourteenth Amendments’ commands that federal and state trials,

respectively, must be conducted in accordance with due process of law”

are the “standard” by which to “test federal and state rules of evidence”).

Cite as: 562 U. S. ____ (2011) 25

Opinion of the Court

ing emergency determination.

In contrast, Michigan and the Solicitor General explain

that when the police responded to the call that a man had

been shot and found Covington bleeding on the gas station

parking lot, “they did not know who Covington was,

whether the shooting had occurred at the gas station or at

a different location, who the assailant was, or whether the

assailant posed a continuing threat to Covington or oth

ers.” Brief for United States as Amicus Curiae 15; Brief

for Petitioner 16; see also id., at 15 (“[W]hen an officer

arrives on the scene and does not know where the perpe

trator is, whether he is armed, whether he might have

other targets, and whether the violence might continue

at the scene or elsewhere, interrogation that has the pri

mary purpose of establishing those facts to assess the situ

ation is designed to meet the ongoing emergency and is

nontestimonial”).

The Michigan Supreme Court stated that the police

asked Covington, “what had happened, who had shot him,

and where the shooting had occurred.” 483 Mich., at 143,

768 N. W. 2d, at 71. The joint appendix contains the

transcripts of the preliminary examination, suppression

hearing, and trial testimony of five officers who responded

to the scene and found Covington. The officers’ testimony

is essentially consistent but, at the same time, not specific.

The officers basically agree on what information they

learned from Covington, but not on the order in which

they learned it or on whether Covington’s statements were

in response to general or detailed questions. They all

agree that the first question was “what happened?” The

answer was either “I was shot” or “Rick shot me.”14

——————

14 See App. 76 (testimony of Officer McCallister); id., at 101, 113–114

(testimony of Sgt. Wenturine); id., at 127, 131–133 (testimony of Officer

Stuglin). Covington told them that Rick had shot him through the back

door of Rick’s house, id., at 127–128 (testimony of Officer Stuglin),

located at the corner of Pennsylvania and Laura, id., at 102 (testimony

26 MICHIGAN v. BRYANT

Opinion of the Court

As explained above, the scope of an emergency in terms

of its threat to individuals other than the initial assailant

and victim will often depend on the type of dispute in

volved. Nothing Covington said to the police indicated

that the cause of the shooting was a purely private dispute

or that the threat from the shooter had ended. The record

reveals little about the motive for the shooting. The police

officers who spoke with Covington at the gas station testi

fied that Covington did not tell them what words Coving

ton and Rick had exchanged prior to the shooting.15 What

Covington did tell the officers was that he fled Bryant’s

back porch, indicating that he perceived an ongoing

threat.16 The police did not know, and Covington did not

tell them, whether the threat was limited to him. The

——————

of Sgt. Wenturine), and that Covington recognized Rick by his voice, id.,

at 128 (testimony of Officer Stuglin). Covington also gave them a

physical description of Rick. Id., at 84–85, 93–94 (testimony of Officer

McAllister); id., at 103, 115 (testimony of Sgt. Wenturine); id., at 134

(testimony of Officer Stuglin).

15 See id., at 114 (“Q Did he tell you what Rick said? A He said they

were having a conversation. Q Did he tell you what Rick said? A He

did not” (testimony of Sgt. Wenturine) (paragraph breaks omitted)); see

also id., at 79 (testimony of Officer McAllister); id., at 128 (testimony of

Officer Stuglin).

16 See id., at 127–128 (“A He said he’d went up, he went up to the

back door of a house; that a person he said he knew, and he was knock

ing and he was knocking on the door he said he’d talked to somebody

through the door. He said he recognized the voice. Q Did he say who it

was that he recognized the voice of? A That’s when he told me it was,

he said it was Rick a/k/a Buster. Q And did he say what the conversa

tion was about at the door? A I don’t, I don’t believe so. Q All right.

And did he say what happened there, whether or not they had a con

versation or not, did he say what ended up happening? A He said what

happened was that he heard a shot and then he started to turn to get

off the porch and then another one and then that’s when he was hit by

a gunshot” (testimony of Officer Stuglin) (paragraph breaks omitted)).

Unlike the dissent’s apparent ability to read Covington’s mind, post, at

6 (opinion of SCALIA, J.), we rely on the available evidence, which

suggests that Covington perceived an ongoing threat.

Cite as: 562 U. S. ____ (2011) 27

Opinion of the Court

potential scope of the dispute and therefore the emergency

in this case thus stretches more broadly than those at

issue in Davis and Hammon and encompasses a threat

potentially to the police and the public.

This is also the first of our post-Crawford Confrontation

Clause cases to involve a gun. The physical separation

that was sufficient to end the emergency in Hammon was

not necessarily sufficient to end the threat in this case;

Covington was shot through the back door of Bryant’s

house. Bryant’s argument that there was no ongoing

emergency because “[n]o shots were being fired,” Brief for

Respondent 27, surely construes ongoing emergency too

narrowly. An emergency does not last only for the time

between when the assailant pulls the trigger and the

bullet hits the victim. If an out-of-sight sniper pauses

between shots, no one would say that the emergency

ceases during the pause. That is an extreme example and

not the situation here, but it serves to highlight the im

plausibility, at least as to certain weapons, of construing

the emergency to last only precisely as long as the violent

act itself, as some have construed our opinion in Davis.

See Brief for Respondent 23–25.

At no point during the questioning did either Covington

or the police know the location of the shooter. In fact,

Bryant was not at home by the time the police searched

his house at approximately 5:30 a.m. 483 Mich., at 136,

768 N. W. 2d, at 67. At some point between 3 a.m. and

5:30 a.m., Bryant left his house. At bottom, there was an

ongoing emergency here where an armed shooter, whose

motive for and location after the shooting were unknown,

had mortally wounded Covington within a few blocks

and a few minutes of the location where the police found

Covington.17

——————

17 It hardly bears mention that the emergency situation in this case is

readily distinguishable from the “treasonous conspiracies of unknown

28 MICHIGAN v. BRYANT

Opinion of the Court

This is not to suggest that the emergency continued

until Bryant was arrested in California a year after the

shooting. Id., at 137, 768 N. W. 2d, at 67. We need not

decide precisely when the emergency ended because Cov

ington’s encounter with the police and all of the state

ments he made during that interaction occurred within

the first few minutes of the police officers’ arrival and

well before they secured the scene of the shooting—the

shooter’s last known location.

We reiterate, moreover, that the existence vel non of an

ongoing emergency is not the touchstone of the testimonial

inquiry; rather, the ultimate inquiry is whether the “pri

mary purpose of the interrogation [was] to enable police

assistance to meet [the] ongoing emergency.” Davis, 547

U. S., at 822. We turn now to that inquiry, as informed by

the circumstances of the ongoing emergency just de

scribed. The circumstances of the encounter provide im

portant context for understanding Covington’s statements

to the police. When the police arrived at Covington’s side,

their first question to him was “What happened?”18 Cov

ington’s response was either “Rick shot me” or “I was

shot,” followed very quickly by an identification of “Rick”

——————

scope, aimed at killing or overthrowing the king,” post, at 11, about

which JUSTICE SCALIA’s dissent is quite concerned.

18 Although the dissent claims otherwise, post, at 7 (opinion of

SCALIA, J.), at least one officer asked Covington something akin to “how

was he doing.” App. 131 (testimony of Officer Stuglin) (“A I approached

the subject, the victim, Mr. Covington, on the ground and had asked

something like what happened or are you okay, something to that

line. . . . Q So you asked this man how are you, how are you doing? A

Well, basically it’s, you know, what’s wrong, you know” (paragraph

breaks omitted)). The officers also testified about their assessment of

Covington’s wounds. See id., at 35 (suppression hearing testimony of

Officer Brown) (“[H]e had blood . . . on the front of his body”); id., at 75

(testimony of Officer McCallister) (“It appeared he had a stomach

wound of a gunshot”); id., at 132 (testimony of Officer Stuglin) (“Q Did

you see the wound? A Yes, I did. Q You had to move some clothing to

do that? A Yes” (paragraph breaks omitted)).

Cite as: 562 U. S. ____ (2011) 29

Opinion of the Court

as the shooter. App. 76. In response to further questions,

Covington explained that the shooting occurred through

the back door of Bryant’s house and provided a physical

description of the shooter. When he made the statements,

Covington was lying in a gas station parking lot bleeding

from a mortal gunshot wound to his abdomen. His an

swers to the police officers’ questions were punctuated

with questions about when emergency medical services

would arrive. Id., at 56–57 (suppression hearing testi

mony of Officer Brown). He was obviously in considerable

pain and had difficulty breathing and talking. Id., at 75,

83–84 (testimony of Officer McCallister); id., at 101, 110–

111 (testimony of Sgt. Wenturine); id., at 126, 137 (testi

mony of Officer Stuglin). From this description of his

condition and report of his statements, we cannot say that

a person in Covington’s situation would have had a “pri

mary purpose” “to establish or prove past events poten

tially relevant to later criminal prosecution.” Davis, 547

U. S., at 822.

For their part, the police responded to a call that a man

had been shot. As discussed above, they did not know

why, where, or when the shooting had occurred. Nor did

they know the location of the shooter or anything else

about the circumstances in which the crime occurred.19

——————

19 Contrary to the dissent’s suggestion, post, at 8 (opinion of SCALIA,

J.), and despite the fact that the record was developed prior to Davis’

focus on the existence of an “ongoing emergency,” the record contains

some testimony to support the idea that the police officers were con

cerned about the location of the shooter when they arrived on the scene

and thus to suggest that the purpose of the questioning of Covington

was to determine the shooter’s location. See App. 136 (testimony of

Officer Stuglin) (stating that upon arrival officers questioned the gas

station clerk about whether the shooting occurred in the gas station

parking lot and about concern for safety); see also ibid. (testimony of

Officer Stuglin) (“Q . . . So you have some concern, there may be a

person with a gun or somebody, a shooter right there in the immediate

area? A Sure, yes. Q And you want to see that that area gets secured?

30 MICHIGAN v. BRYANT

Opinion of the Court

The questions they asked—“what had happened, who had

shot him, and where the shooting occurred,” 483 Mich., at

143, 768 N. W. 2d, at 71—were the exact type of questions

necessary to allow the police to “ ‘assess the situation, the

threat to their own safety, and possible danger to the

potential victim’ ” and to the public, Davis, 547 U. S., at

832 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt Cty., 542 U. S. 177, 186 (2004)), including to

allow them to ascertain “whether they would be encoun

tering a violent felon,”20 Davis, 547 U. S., at 827. In other

words, they solicited the information necessary to enable

them “to meet an ongoing emergency.” Id., at 822.

Nothing in Covington’s responses indicated to the police

that, contrary to their expectation upon responding to a

call reporting a shooting, there was no emergency or that

a prior emergency had ended. Covington did indicate that

he had been shot at another location about 25 minutes

earlier, but he did not know the location of the shooter at

the time the police arrived and, as far as we can tell from

the record, he gave no indication that the shooter, having

shot at him twice, would be satisfied that Covington was

only wounded. In fact, Covington did not indicate any

possible motive for the shooting, and thereby gave no

reason to think that the shooter would not shoot again if

he arrived on the scene. As we noted in Davis, “initial

inquiries” may “often . . . produce nontestimonial state

——————

A Correct. Q For your safety as well as everyone else? A Correct”

(paragraph breaks omitted)); id., at 82 (testimony of Officer McCallis

ter). But see id., at 83 (cross-examination of Officer McAllister) (“Q You

didn’t, you didn’t look around and say, gee, there might be a shooter

around here, I better keep an eye open? A I did not, no. That could

have been my partner I don’t know” (paragraph breaks omitted)).

20 Hiibel, like our post-Crawford Confrontation Clause cases, involved

domestic violence, which explains the Court’s focus on the security of

the victim and the police: they were the only parties potentially threat

ened by the assailant. 542 U. S., at 186 (noting that the case involved a

“domestic assault”).

Cite as: 562 U. S. ____ (2011) 31

Opinion of the Court

ments.” Id., at 832. The initial inquiries in this case

resulted in the type of nontestimonial statements we

contemplated in Davis.

Finally, we consider the informality of the situation and

the interrogation. This situation is more similar, though

not identical, to the informal, harried 911 call in Davis

than to the structured, station-house interview in Craw

ford. As the officers’ trial testimony reflects, the situation

was fluid and somewhat confused: the officers arrived at

different times; apparently each, upon arrival, asked

Covington “what happened?”; and, contrary to the dis

sent’s portrayal, post, at 7–9 (opinion of SCALIA, J.), they

did not conduct a structured interrogation. App. 84 (tes

timony of Officer McCallister) (explaining duplicate ques

tioning, especially as to “what happened?”); id., at 101–102

(testimony of Sgt. Wenturine) (same); id., at 126–127

(testimony of Officer Stuglin) (same). The informality

suggests that the interrogators’ primary purpose was

simply to address what they perceived to be an ongoing

emergency, and the circumstances lacked any formality

that would have alerted Covington to or focused him on

the possible future prosecutorial use of his statements.

Because the circumstances of the encounter as well as

the statements and actions of Covington and the police

objectively indicate that the “primary purpose of the inter

rogation” was “to enable police assistance to meet an

ongoing emergency,” Davis, 547 U. S., at 822, Covington’s

identification and description of the shooter and the lo

cation of the shooting were not testimonial hearsay.

The Confrontation Clause did not bar their admission at

Bryant’s trial.

* * *

For the foregoing reasons, we hold that Covington’s

statements were not testimonial and that their admission

32 MICHIGAN v. BRYANT

Opinion of the Court

at Bryant’s trial did not violate the Confrontation Clause.

We leave for the Michigan courts to decide on remand

whether the statements’ admission was otherwise permit

ted by state hearsay rules. The judgment of the Supreme

Court of Michigan is vacated, and the case is remanded for

further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or

decision of this case.

Cite as: 562 U. S. ____ (2011) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–150

_________________

MICHIGAN, PETITIONER v. RICHARD PERRY

BRYANT

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011]

JUSTICE THOMAS, concurring in the judgment.

I agree with the Court that the admission of Covington’s

out-of-court statements did not violate the Confrontation

Clause, but I reach this conclusion because Covington’s

questioning by police lacked sufficient formality and so

lemnity for his statements to be considered “testimonial.”

See Crawford v. Washington, 541 U. S. 36, 68 (2004).

In determining whether Covington’s statements to

police implicate the Confrontation Clause, the Court

evaluates the “ ‘primary purpose’ ” of the interrogation.

Ante, at 12. The majority’s analysis⎯which relies on,

inter alia, what the police knew when they arrived at the

scene, the specific questions they asked, the particular

information Covington conveyed, the weapon involved,

and Covington’s medical condition⎯illustrates the uncer

tainty that this test creates for law enforcement and the

lower courts. Ante, at 25–31. I have criticized the

primary-purpose test as “an exercise in fiction” that is

“disconnected from history” and “yields no predictable

results.” Davis v. Washington, 547 U. S. 813, 839, 838

(2006) (opinion concurring in judgment in part and dis

senting in part).

Rather than attempting to reconstruct the “primary

purpose” of the participants, I would consider the extent to

which the interrogation resembles those historical prac

2 MICHIGAN v. BRYANT

THOMAS, J., concurring in judgment

tices that the Confrontation Clause addressed. See, e.g.,

id., at 835–836 (describing “practices that occurred under

the English bail and committal statutes passed during the

reign of Queen Mary”). As the majority notes, Covington

interacted with the police under highly informal circum

stances, while he bled from a fatal gunshot wound. Ante,

at 19–20, 31. The police questioning was not “a formalized

dialogue,” did not result in “formalized testimonial ma

terials” such as a deposition or affidavit, and bore no “in-

dicia of solemnity.” Davis, supra, at 840, 837 (opinion of

THOMAS, J.); see also Giles v. California, 554 U. S. 353,

377–378 (2008) (THOMAS, J., concurring). Nor is there any

indication that the statements were offered at trial “in

order to evade confrontation.” Davis, supra, at 840. This

interrogation bears little if any resemblance to the histori

cal practices that the Confrontation Clause aimed to elimi

nate. Covington thus did not “bea[r] testimony” against

Bryant, Crawford, supra, at 51, and the introduction of his

statements at trial did not implicate the Confrontation

Clause. I concur in the judgment.

Cite as: 562 U. S. ____ (2011) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–150

_________________

MICHIGAN, PETITIONER v. RICHARD PERRY

BRYANT

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011]

JUSTICE SCALIA, dissenting.

Today’s tale—a story of five officers conducting suc

cessive 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. But reaching a patently incorrect conclu

sion on the facts is a relatively benign judicial mischief; it

affects, after all, only the case at hand. In its vain attempt

to make the incredible plausible, however—or perhaps as

an intended second goal—today’s opinion 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. Because I continue to

adhere to the Confrontation Clause that the People

adopted, as described in Crawford v. Washington, 541

U. S. 36 (2004), I dissent.

I

A

The Confrontation Clause of the Sixth Amendment,

made binding on the States by the Fourteenth Amend

ment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides

that “[i]n all criminal prosecutions, the accused shall enjoy

2 MICHIGAN v. BRYANT

SCALIA, J., dissenting

the right . . . to be confronted with the witnesses against

him.” In Crawford, we held that this provision guarantees

a defendant his common-law right to confront those “who

‘bear testimony’ ” against him. 541 U. S., at 51. A witness

must deliver his testimony against the defendant in per

son, or the prosecution must prove that the witness is

unavailable to appear at trial and that the defendant

has had a prior opportunity for cross-examination. Id., at

53–54.

Not all hearsay falls within the Confrontation Clause’s

grasp. At trial a witness “bears testimony” by providing

“ ‘[a] solemn declaration or affirmation . . . for the purpose

of establishing or proving some fact.’ ” Id., at 51 (quoting 2

N. Webster, An American Dictionary of the English Lan

guage (1828)). The Confrontation Clause protects defen

dants only from hearsay statements that do the same.

Davis v. Washington, 547 U. S. 813, 823–824 (2006). In

Davis, we explained how to identify testimonial hearsay

prompted by police questioning in the field. A statement

is testimonial “when the circumstances objectively indi

cate . . . that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later

criminal prosecution.” Id., at 822. When, however, the

circumstances objectively indicate that the declarant’s

statements were “a cry for help [o]r the provision of infor

mation enabling officers immediately to end a threatening

situation,” id., at 832, they bear little resemblance to in

court testimony. “No ‘witness’ goes into court to proclaim

an emergency and seek help.” Id., at 828.

Crawford and Davis did not address whose perspective

matters—the declarant’s, the interrogator’s, or both—

when assessing “the primary purpose of [an] interroga

tion.” In those cases the statements were testimonial from

any perspective. I think the same is true here, but be

cause the Court picks a perspective so will I: The decla

rant’s intent is what counts. In-court testimony is more

Cite as: 562 U. S. ____ (2011) 3

SCALIA, J., dissenting

than a narrative of past events; it is a solemn declaration

made in the course of a criminal trial. For an out-of-court

statement to qualify as testimonial, the declarant must

intend the statement to be a solemn declaration rather

than an unconsidered or offhand remark; and he must

make the statement with the understanding that it may

be used to invoke the coercive machinery of the State

against the accused.1 See Friedman, Grappling with the

Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259

(2005). That is what distinguishes a narrative told to a

friend over dinner from a statement to the police. See

Crawford, supra, at 51. The hidden purpose of an interro

gator cannot substitute for the declarant’s intentional

solemnity or his understanding of how his words may be

used.

A declarant-focused inquiry is also the only inquiry that

would work in every fact pattern implicating the Confron

tation Clause. The Clause applies to volunteered testi

mony as well as statements solicited through police inter

rogation. See Davis, supra, at 822–823, n. 1. An inquiry

into an officer’s purposes would make no sense when a

declarant blurts out “Rick shot me” as soon as the officer

arrives on the scene. I see no reason to adopt a different

test—one that accounts for an officer’s intent—when the

officer asks “what happened” before the declarant makes

his accusation. (This does not mean the interrogator is

irrelevant. The identity of an interrogator, and the con

tent and tenor of his questions, can bear upon whether a

declarant intends to make a solemn statement, and envi

sions its use at a criminal trial. But none of this means

that the interrogator’s purpose matters.)

In an unsuccessful attempt to make its finding of emer

——————

1 I remain agnostic about whether and when statements to nonstate

actors are testimonial. See Davis v. Washington, 547 U. S. 813, 823,

n. 2 (2006).

4 MICHIGAN v. BRYANT

SCALIA, J., dissenting

gency plausible, the Court instead adopts a test that looks

to the purposes of both the police and the declarant. It

claims that this is demanded by necessity, fretting that a

domestic-violence victim may want her abuser briefly

arrested—presumably to teach him a lesson—but not

desire prosecution. See ante, at 22. I do not need to probe

the purposes of the police to solve that problem. Even if a

victim speaks to the police “to establish or prove past

events” solely for the purpose of getting her abuser ar

rested, she surely knows her account is “potentially rel

evant to later criminal prosecution” should one ensue.

Davis, supra, at 822.

The Court also wrings its hands over the possibility that

“a severely injured victim” may lack the capacity to form a

purpose, and instead answer questions “reflexive[ly].”

Ante, at 22. How to assess whether a declarant with

diminished capacity bore testimony is a difficult question,

and one I do not need to answer today. But the Court’s

proposed answer—to substitute the intentions of the police

for the missing intentions of the declarant—cannot be the

correct one. When the declarant has diminished capacity,

focusing on the interrogators make less sense, not more.

The inquiry under Crawford turns in part on the actions

and statements of a declarant’s audience only because

they shape the declarant’s perception of why his audience

is listening and therefore influence his purpose in making

the declaration. See 541 U. S., at 51. But a person who

cannot perceive his own purposes certainly cannot per

ceive why a listener might be interested in what he has to

say. As far as I can tell, the Court’s substituted-intent

theory “has nothing to be said for it except that it can

sometimes make our job easier,” Jerman v. Carlisle,

McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. ___,

___ (2010) (SCALIA, J., concurring in part and concurring

in judgment) (slip op., at 2).

The Court claims one affirmative virtue for its focus on

Cite as: 562 U. S. ____ (2011) 5

SCALIA, J., dissenting

the purposes of both the declarant and the police: It “ame

liorates problems that . . . arise” when declarants have

“mixed motives.” Ante, at 21. I am at a loss to know how.

Sorting out the primary purpose of a declarant with mixed

motives is sometimes difficult. But adding in the mixed

motives of the police only compounds the problem. Now

courts will have to sort through two sets of mixed motives

to determine the primary purpose of an interrogation.

And the Court’s solution creates a mixed-motive problem

where (under the proper theory) it does not exist—viz.,

where the police and the declarant each have one motive,

but those motives conflict. The Court does not provide an

answer to this glaringly obvious problem, probably be

cause it does not have one.

The only virtue of the Court’s approach (if it can be

misnamed a virtue) is that it leaves judges free to reach

the “fairest” result under the totality of the circumstances.

If the dastardly police trick a declarant into giving an

incriminating statement against a sympathetic defendant,

a court can focus on the police’s intent and declare the

statement testimonial. If the defendant “deserves” to go to

jail, then a court can focus on whatever perspective is

necessary to declare damning hearsay nontestimonial.

And when all else fails, a court can mix-and-match per

spectives to reach its desired outcome. Unfortunately,

under this malleable approach “the guarantee of confron

tation is no guarantee at all.” Giles v. California, 554

U. S. 353, 375 (2008) (plurality).

B

Looking to the declarant’s purpose (as we should), this is

an absurdly easy case. Roughly 25 minutes after Anthony

Covington had been shot, Detroit police responded to a 911

call reporting that a gunshot victim had appeared at a

neighborhood gas station. They quickly arrived at the

scene, and in less than 10 minutes five different Detroit

6 MICHIGAN v. BRYANT

SCALIA, J., dissenting

police officers questioned Covington about the shooting.

Each asked him a similar battery of questions: “what

happened” and when, App. 39, 126, “who shot” the victim,”

id., at 22, and “where” did the shooting take place, id., at

132. See also id., at 113. After Covington would answer,

they would ask follow-up questions, such as “how tall is”

the shooter, id., at 134, “[h]ow much does he weigh,” ibid.

what is the exact address or physical description of the

house where the shooting took place, and what chain

of events led to the shooting. The battery relented when

the paramedics arrived and began tending to Covington’s

wounds.

From Covington’s perspective, his statements had little

value except to ensure the arrest and eventual prosecution

of Richard Bryant. He knew the “threatening situation,”

Davis, 547 U. S., at 832, had ended six blocks away and 25

minutes earlier when he fled from Bryant’s back porch.

See 483 Mich. 132, 135–136, 768 N.W. 2d 65, 67 (2009);

App. 105. Bryant had not confronted him face-to-face

before he was mortally wounded, instead shooting him

through a door. See 483 Mich., at 136–137, 768 N.W. 2d,

at 67. Even if Bryant had pursued him (unlikely), and

after seeing that Covington had ended up at the gas sta

tion was unable to confront him there before the police

arrived (doubly unlikely), it was entirely beyond imagina

tion that Bryant would again open fire while Covington

was surrounded by five armed police officers. And Coving

ton knew the shooting was the work of a drug dealer, not a

spree killer who might randomly threaten others. Id., at

135, 137, 768 N.W. 2d, at 67.

Covington’s knowledge that he had nothing to fear

differs significantly from Michelle McCottry’s state of

mind during her “frantic” statements to a 911 operator at

issue in Davis, 547 U. S., at 827. Her “call was plainly a

call for help against a bona fide physical threat” describing

“events as they were actually happening.” Ibid. She did

Cite as: 562 U. S. ____ (2011) 7

SCALIA, J., dissenting

not have the luxuries of police protection and of time and

space separating her from immediate danger that Coving

ton enjoyed when he made his statements. See id., at 831.

Covington’s pressing medical needs do not suggest that

he was responding to an emergency, but to the contrary

reinforce the testimonial character of his statements. He

understood the police were focused on investigating a past

crime, not his medical needs. None of the officers asked

Covington how he was doing, attempted more than super

ficially to assess the severity of his wounds, or attempted

to administer first aid.2 They instead primarily asked

questions with little, if any, relevance to Covington’s dire

situation. Police, paramedics, and doctors do not need to

know the address where a shooting took place, the name of

the shooter, or the shooter’s height and weight to provide

proper medical care. Underscoring that Covington under

stood the officers’ investigative role, he interrupted their

interrogation to ask “when is EMS coming?” App. 57.

When, in other words, would the focus shift to his medical

needs rather than Bryant’s crime?

Neither Covington’s statements nor the colloquy be

tween him and the officers would have been out of place at

a trial; it would have been a routine direct examination.

See Davis, 547 U. S., at 830. Like a witness, Covington

recounted in detail how a past criminal event began and

progressed, and like a prosecutor, the police elicited that

account through structured questioning. Preventing the

——————

2 Officer Stuglin’s testimony does not undermine my assessment of

the officers’ behavior, although the Court suggests otherwise. See ante,

at 28, n. 18. Officer Stuglin first testified that he “asked something like

what happened or are you okay, something to that line.” App., 131.

When pressed on whether he asked “how are you doing?,” he responded,

“Well, basically . . . what’s wrong.” Ibid. Other officers were not so

equivocal: They admitted they had no need to “ask him how he was

doing. . . . It was very obvious how he was doing.” Id., at 110; see also

id., at 19.

8 MICHIGAN v. BRYANT

SCALIA, J., dissenting

admission of “weaker substitute[s] for live testimony at

trial” such as this, id., at 828 (internal quotation marks

omitted), is precisely what motivated the Framers to adopt

the Confrontation Clause and what motivated our deci

sions in Crawford and in Hammon v. Indiana, decided

with Davis. Ex parte examinations raise the same consti

tutional concerns whether they take place in a gas-station

parking lot or in a police interrogation room.

C

Worse still for the repute of today’s opinion, this is an

absurdly easy case even if one (erroneously) takes the

interrogating officers’ purpose into account. The five

officers interrogated Covington primarily to investigate

past criminal events. None—absolutely none—of their

actions indicated that they perceived an imminent threat.

They did not draw their weapons, and indeed did not

immediately search the gas station for potential shooters.3

To the contrary, all five testified that they questioned

Covington before conducting any investigation at the scene.

Would this have made any sense if they feared the pres

ence of a shooter? Most tellingly, none of the officers

started his interrogation by asking what would have been

the obvious first question if any hint of such a fear existed:

Where is the shooter?

But do not rely solely on my word about the officers’

primary purpose. Listen to Sergeant Wenturine, who

candidly admitted that he interrogated Covington because

he “ha[d] a man here that [he] believe[d] [was] dying [so

——————

3 The

Court cites Officer Stuglin’s testimony that “I think [Brown and

Pellerito] did a little bit of both” joining the interrogation and helping

to secure the scene. Id., at 135–136. But the point is not whether they

did both; it is whether they moved to secure the area first. No officer’s

testimony suggests this. Pellerito testified that he, Stuglin, and Brown

arrived at the scene at roughly the same time and all three immedi

ately went to Covington. See id., at 17–18. The testimony of Brown

and McCallister corroborate that account. See id., at 34–36, 79–82.

Cite as: 562 U. S. ____ (2011) 9

SCALIA, J., dissenting

he was] gonna find out who did this, period.” App. 112. In

short, he needed to interrogate Covington to solve a crime.

Wenturine never mentioned an interest in ending an

ongoing emergency.

At the very least, the officers’ intentions turned investi

gative during their 10-minute encounter with Covington,

and the conversation “evolve[d] into testimonial state

ments.” Davis, 547 U. S., at 828 (internal quotation

marks omitted). The fifth officer to arrive at the scene did

not need to run straight to Covington and ask a battery of

questions “to determine the need for emergency assis

tance,” Ibid. He could have asked his fellow officers, who

presumably had a better sense of that than Covington—

and a better sense of what he could do to assist. No, the

value of asking the same battery of questions a fifth time

was to ensure that Covington told a consistent story and

to see if any new details helpful to the investigation and

eventual prosecution would emerge. Having the testimony

of five officers to recount Covington’s consistent story

undoubtedly helped obtain Bryant’s conviction. (Which

came, I may note, after the first jury could not reach a

verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)

D

A final word about the Court’s active imagination. The

Court invents a world where an ongoing emergency exists

whenever “an armed shooter, whose motive for and lo

cation after the shooting [are] unknown, . . . mortally

wound[s]” one individual “within a few blocks and [25]

minutes of the location where the police” ultimately find

that victim. Ante, at 27. Breathlessly, it worries that a

shooter could leave the scene armed and ready to pull the

trigger again. See ante, at 17–18, 27, 30. Nothing sug

gests the five officers in this case shared the Court’s

10 MICHIGAN v. BRYANT

SCALIA, J., dissenting

dystopian4 view of Detroit, where drug dealers hunt their

shooting victim down and fire into a crowd of police offi

cers to finish him off, see ante, at 30, or where spree kill

ers shoot through a door and then roam the streets leaving

a trail of bodies behind. Because almost 90 percent of

murders involve a single victim,5 it is much more likely—

indeed, I think it certain—that the officers viewed their

encounter with Covington for what it was: an investi

gation into a past crime with no ongoing or immediate

consequences.

The Court’s distorted view creates an expansive excep

tion to the Confrontation Clause for violent crimes. Be

cause Bryant posed a continuing threat to public safety in

the Court’s imagination, the emergency persisted for

confrontation purposes at least until the police learned his

“motive for and location after the shooting.” Ante, at 27.

It may have persisted in this case until the police “secured

the scene of the shooting” two-and-a-half hours later.

Ante, at 28. (The relevance of securing the scene is un

clear so long as the killer is still at large—especially if, as

the Court speculates, he may be a spree-killer.) This is a

dangerous definition of emergency. Many individuals who

testify against a defendant at trial first offer their ac

counts to police in the hours after a violent act. If the

police can plausibly claim that a “potential threat to . . .

the public” persisted through those first few hours, ante,

at 12 (and if the claim is plausible here it is always plau

——————

4 The opposite of utopian. The word was coined by John Stuart Mill

as a caustic description of British policy. See 190 Hansard’s Parlia

mentary Debates, Third Series 1517 (3d Ser. 1868); 5 Oxford English

Dictionary 13 (2d ed. 1989).

5 See Federal Bureau of Investigation, Crime in the United States,

2009: Expanded Homicide Data Table 4, Murder by Victim/Offender

Situations, 2009 (Sept. 2010), online at http://www2.fbi.gov/ucr/

cius2009/offenses/expanded_information/data/shrtable_04.html (as visited

Feb. 25, 2011, and available in Clerk of Court’s case file).

Cite as: 562 U. S. ____ (2011) 11

SCALIA, J., dissenting

sible) a defendant will have no constitutionally protected

right to exclude the uncross-examined testimony of such

witnesses. His conviction could rest (as perhaps it did

here) solely on the officers’ recollection at trial of the

witnesses’ accusations.

The Framers could not have envisioned such a hollow

constitutional guarantee. No framing-era confrontation

case that I know of, neither here nor in England, took such

an enfeebled view of the right to confrontation. For exam

ple, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202,

202–203 (K. B. 1779), held inadmissible a mother’s ac

count of her young daughter’s statements “immediately on

her coming home” after being sexually assaulted. The

daughter needed to testify herself. But today’s majority

presumably would hold the daughter’s account to her

mother a nontestimonial statement made during an ongo

ing emergency. She could not have known whether her

attacker might reappear to attack again or attempt to

silence the lone witness against him. Her mother likely

listened to the account to assess the threat to her own

safety and to decide whether the rapist posed a threat

to the community that required the immediate interven

tion of the local authorities. Cf. ante, at 29–30. Utter

nonsense.

The 16th- and 17th-century English treason trials that

helped inspire the Confrontation Clause show that today’s

decision is a mistake. The Court’s expansive definition of

an “ongoing emergency” and its willingness to consider the

perspective of the interrogator and the declarant cast a

more favorable light on those trials than history or our

past decisions suggest they deserve. Royal officials con

ducted many of the ex parte examinations introduced

against Sir Walter Raleigh and Sir John Fenwick while

investigating alleged treasonous conspiracies of unknown

scope, aimed at killing or overthrowing the King. See

Brief for National Association of Criminal Defense Law

12 MICHIGAN v. BRYANT

SCALIA, J., dissenting

yers as Amicus Curiae 21–22, and n. 11. Social stability in

16th- and 17th-century England depended mainly on the

continuity of the ruling monarch, cf. 1 J. Stephen, A His

tory of the Criminal Law of England 354 (1883), so such a

conspiracy posed the most pressing emergency imaginable.

Presumably, the royal officials investigating it would have

understood the gravity of the situation and would have

focused their interrogations primarily on ending the

threat, not on generating testimony for trial. I therefore

doubt that under the Court’s test English officials acted

improperly by denying Raleigh and Fenwick the opportu

nity to confront their accusers “face to face,” id., at 326.

Under my approach, in contrast, those English trials

remain unquestionably infamous. Lord Cobham did not

speak with royal officials to end an ongoing emergency.

He was a traitor! He spoke, as Raleigh correctly observed,

to establish Raleigh’s guilt and to save his own life. See 1

D. Jardine, Criminal Trials 435 (1832). Cobham’s state

ments, when assessed from his perspective, had only a

testimonial purpose. The same is true of Covington’s

statements here.

II

A

But today’s decision is not only a gross distortion of the

facts. It is a gross distortion of the law—a revisionist

narrative in which reliability continues to guide our Con

frontation Clause jurisprudence, at least where emergen

cies and faux emergencies are concerned.

According to today’s opinion, the Davis inquiry into

whether a declarant spoke to end an ongoing emergency or

rather to “prove past events potentially relevant to later

criminal prosecution,” 547 U. S., at 822, is not aimed at

answering whether the declarant acted as a witness.

Instead, the Davis inquiry probes the reliability of a decla

rant’s statements, “[i]mplicit[ly]” importing the excited

Cite as: 562 U. S. ____ (2011) 13

SCALIA, J., dissenting

utterances hearsay exception into the Constitution. Ante,

at 14–15. A statement during an ongoing emergency is

sufficiently reliable, the Court says, “because the prospect

of fabrication . . . is presumably significantly diminished,”

so it “does not [need] to be subject to the crucible of cross

examination.” Id., at 14.

Compare that with the holding of Crawford: “Where

testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is

the one the Constitution actually prescribes: confronta

tion.” 541 U. S., at 68–69. Today’s opinion adopts, for

emergencies and faux emergencies at least, the discredited

logic of White v. Illinois, 502 U. S. 346, 355–356, and n. 8

(1992), and Idaho v. Wright, 497 U. S. 805, 819–820

(1990). White is, of course, the decision that both Craw

ford and Davis found most incompatible with the text and

history of the Confrontation Clause. See Davis, supra, at

825; Crawford, supra, at 58, n. 8. (This is not to say that

that “reliability” logic can actually justify today’s result:

Twenty-five minutes is plenty of time for a shooting victim

to reflect and fabricate a false story.)

The Court announces that in future cases it will look to

“standard rules of hearsay, designed to identify some

statements as reliable,” when deciding whether a state

ment is testimonial. Ante, at 11–12. Ohio v. Roberts, 448

U. S. 56 (1980) said something remarkably similar: An

out-of-court statement is admissible if it “falls within a

firmly rooted hearsay exception” or otherwise “bears ade

quate ‘indicia of reliability.’ ” Id., at 66. We tried that

approach to the Confrontation Clause for nearly 25 years

before Crawford rejected it as an unworkable standard

unmoored from the text and the historical roots of the

Confrontation Clause. See 541 U. S., at 54, 60, 63–65, 67–

68. The arguments in Raleigh’s infamous 17th-century

treason trial contained full debate about the reliability of

Lord Cobham’s ex parte accusations, see Raleigh’s Case,

14 MICHIGAN v. BRYANT

SCALIA, J., dissenting

2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29 (1603); that

case remains the canonical example of a Confrontation

Clause violation, not because Raleigh should have won the

debate but because he should have been allowed

cross-examination.

The Court attempts to fit its resurrected interest in

reliability into the Crawford framework, but the result is

incoherent. Reliability, the Court tells us, is a good indi

cator of whether “a statement is . . . an out-of-court substi

tute for trial testimony.” Ante, at 11. That is patently

false. Reliability tells us nothing about whether a state

ment is testimonial. Testimonial and nontestimonial

statements alike come in varying degrees of reliability.

An eyewitness’s statements to the police after a fender

bender, for example, are both reliable and testimonial.

Statements to the police from one driver attempting to

blame the other would be similarly testimonial but rarely

reliable.

The Court suggests otherwise because it “misunder

stands the relationship” between qualification for one of

the standard hearsay exceptions and exemption from the

confrontation requirement. Melendez-Diaz v. Massachu

setts, 557 U. S. ___, ___ (2009) (slip op., at 18). That rela

tionship is not a causal one. Hearsay law exempts busi

ness records, for example, because businesses have a

financial incentive to keep reliable records. See Fed. Rule

Evid. 803(6). The Sixth Amendment also generally admits

business records into evidence, but not because the records

are reliable or because hearsay law says so. It admits

them “because—having been created for the administra

tion of an entity’s affairs and not for the purpose of estab

lishing or proving some fact at trial—they are not” weaker

substitutes for live testimony. Melendez-Diaz, 557 U. S.,

at ___ (slip op., at 18). Moreover, the scope of the exemp

tion from confrontation and that of the hearsay exceptions

also are not always coextensive. The reliability logic of the

Cite as: 562 U. S. ____ (2011) 15

SCALIA, J., dissenting

business-record exception would extend to records main

tained by neutral parties providing litigation-support

services, such as evidence testing. The Confrontation

Clause is not so forgiving. Business records prepared

specifically for use at a criminal trial are testimonial and

require confrontation. See ibid.

Is it possible that the Court does not recognize the

contradiction between its focus on reliable statements and

Crawford’s focus on testimonial ones? Does it not realize

that the two cannot coexist? Or does it intend, by follow

ing today’s illogical roadmap, to resurrect Roberts by a

thousand unprincipled distinctions without ever explicitly

overruling Crawford? After all, honestly overruling Craw

ford would destroy the illusion of judicial minimalism and

restraint. And it would force the Court to explain how

the Justices’ preference comports with the meaning of the

Confrontation Clause that the People adopted—or to

confess that only the Justices’ preference really matters.

B

The Court recedes from Crawford in a second significant

way. It requires judges to conduct “open-ended balancing

tests” and “amorphous, if not entirely subjective,” inquir

ies into the totality of the circumstances bearing upon

reliability. 541 U. S., at 63, 68. Where the prosecution

cries “emergency,” the admissibility of a statement now

turns on “a highly context-dependent inquiry,” ante, at 16,

into the type of weapon the defendant wielded, see ante, at

17; the type of crime the defendant committed, see ante, at

12, 16–17; the medical condition of the declarant, see ante,

at 17–18; if the declarant is injured, whether paramedics

have arrived on the scene, see ante, at 20; whether the

encounter takes place in an “exposed public area,” ibid.;

whether the encounter appears disorganized, see ibid.;

whether the declarant is capable of forming a purpose, see

ante, at 22; whether the police have secured the scene of

16 MICHIGAN v. BRYANT

SCALIA, J., dissenting

the crime, see ante, at 28; the formality of the statement,

see ante, at 19; and finally, whether the statement strikes

us as reliable, see ante, at 11–12, 14–15. This is no better

than the nine-factor balancing test we rejected in Craw

ford, 541 U. S., at 63. I do not look forward to resolving

conflicts in the future over whether knives and poison are

more like guns or fists for Confrontation Clause purposes,

or whether rape and armed robbery are more like murder

or domestic violence.

It can be said, of course, that under Crawford analysis

of whether a statement is testimonial requires considera

tion of all the circumstances, and so is also something of a

multifactor balancing test. But the “reliability” test does

not replace that analysis; it supplements it. As I under

stand the Court’s opinion, even when it is determined that

no emergency exists (or perhaps before that determination

is made) the statement would be found admissible as far

as the Confrontation Clause is concerned if it is not

testimonial.

In any case, we did not disavow multifactor balancing

for reliability in Crawford out of a preference for rules

over standards. We did so because it “d[id] violence to” the

Framers’ design. Id., at 68. It was judges’ open-ended

determination of what was reliable that violated the trial

rights of Englishmen in the political trials of the 16th and

17th centuries. See, e.g., Throckmorton’s Case, 1 How. St.

Tr. 869, 875–876 (1554); Raleigh’s Case, 2 How. St. Tr., at

15–16, 24. The Framers placed the Confrontation Clause

in the Bill of Rights to ensure that those abuses (and the

abuses by the Admiralty courts in colonial America) would

not be repeated in this country. Not even the least dan

gerous branch can be trusted to assess the reliability of

uncross-examined testimony in politically charged trials or

trials implicating threats to national security. See Craw

ford, supra, at 67–68; cf. Hamdi v. Rumsfeld, 542 U. S.

507, 576–578 (2004) (SCALIA, J., dissenting).

Cite as: 562 U. S. ____ (2011) 17

SCALIA, J., dissenting

* * *

Judicial decisions, like the Constitution itself, are noth

ing more than “parchment barriers,” 5 Writings of James

Madison 269, 272 (G. Hunt ed. 1901). Both depend on a

judicial culture that understands its constitutionally

assigned role, has the courage to persist in that role when

it means announcing unpopular decisions, and has the

modesty to persist when it produces results that go

against the judges’ policy preferences. Today’s opinion

falls far short of living up to that obligation—short on the

facts, and short on the law.

For all I know, Bryant has received his just deserts. But

he surely has not received them pursuant to the proce

dures that our Constitution requires. And what has been

taken away from him has been taken away from us all.

Cite as: 562 U. S. ____ (2011) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–150

_________________

MICHIGAN, PETITIONER v. RICHARD PERRY

BRYANT

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011]

JUSTICE GINSBURG, dissenting.

I agree with JUSTICE SCALIA that Covington’s state

ments were testimonial and that “[t]he declarant’s intent

is what counts.” Ante, at 2 (dissenting opinion). Even if

the interrogators’ intent were what counts, I further

agree, Covington’s statements would still be testimonial.

Ante, at 8. It is most likely that “the officers viewed their

encounter with Covington [as] an investigation into a past

crime with no ongoing or immediate consequences.” Ante,

at 10. Today’s decision, JUSTICE SCALIA rightly notes,

“creates an expansive exception to the Confrontation

Clause for violent crimes.” Ibid. In so doing, the decision

confounds our recent Confrontation Clause jurisprudence,

ante, at 12, which made it plain that “[r]eliability tells us

nothing about whether a statement is testimonial,” ante,

at 14 (emphasis deleted).

I would add, however, this observation. In Crawford v.

Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted

that, in the law we inherited from England, there was a

well-established exception to the confrontation require

ment: The cloak protecting the accused against admission

of out-of-court testimonial statements was removed for

dying declarations. This historic exception, we recalled in

Giles v. California, 554 U. S. 353, 358 (2008); see id., at

361–362, 368, applied to statements made by a person

2 MICHIGAN v. BRYANT

GINSBURG, J., dissenting

about to die and aware that death was imminent. Were

the issue properly tendered here, I would take up the

question whether the exception for dying declarations

survives our recent Confrontation Clause decisions. The

Michigan Supreme Court, however, held, as a matter of

state law, that the prosecutor had abandoned the issue.

See 483 Mich. 132, 156–157, 768 N. W. 2d 65, 78 (2009).

The matter, therefore, is not one the Court can address in

this case.