Michigan v. Bryant – Oral Argument – October 05, 2010

Media for Michigan v. Bryant

Audio Transcription for Opinion Announcement – February 28, 2011 in Michigan v. Bryant

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John G. Roberts, Jr.:

We will hear argument next in Case 09-150, Michigan v. Bryant.

Ms. Palmer.

Lori B. Palmer:

Mr. Chief Justice, and may it please the Court:

Formality is indeed essential to testimonial utterance.

So said this Court in Davis, which dealt with two related situations: On-the-scene questioning by police officers and questions by 9-1-1 operators.

This Court noted that such questioning may often lack the formality essential to testimonial utterance, as officers called to investigate need to know whom they are dealing with in order to assess a situation, the threat to themselves, and the potential danger to possible victims.

The question here is whether those same assessing questions — “what happened”, “who did it”, “where did it happen” — asked by police officers who, upon receiving a radio report of a man shot, found a wounded man lying on the ground next to a car at a gas station, bleeding, visibly in pain and having trouble talking — were made in a formal context sufficiently similar to a magisterial examination so that the answers by the dying — by the dying victim are testimonial.

John G. Roberts, Jr.:

Well, it can’t all be the formality of the context.

I mean, if the police came in and said, well, has this person — Rick, I guess — sold you drugs before, what was the — what was the quantity, and all those sorts of questions, the answers to that would be testimonial, despite the same lack of formality.

Lori B. Palmer:

Which is where the ongoing emergency test from Davis comes into play.

The questions need to be — the primary purpose needs to be to meet an ongoing emergency.

So assessing the risk, assessing the danger to others.

And any questions beyond that could arguably be testimonial, while–

Ruth Bader Ginsburg:

How do we–

Antonin Scalia:

Forget about formality, in other words.

Formality or no formality has nothing to do with it.

Lori B. Palmer:

–Well, under Davis, you said — that was how you tested the formality.

If — the Davis test is a gauge of formality.

If there are questions that respond to ongoing emergency, then this Court has said that that is an indicator that it lacks the formality.

Ruth Bader Ginsburg:

–How do we tell that?

Because it seems to me, here, if you want to know what happened, you would ask the very same questions.

You are saying the questions are relevant also to securing the situation.

But what — what — what different questions would you ask if you wanted to find out what happened?

What was the past — what were the past events?

I mean, I’m trying to understand how you take these questions and say we can put a label on them here that says, well, this is to control an emergency situation, versus we want to know what happened historically.

Lori B. Palmer:

Well, I think that what you have to do is look at the — I mean, obviously, things can have dual purposes and often will.

You have to look at the primary purpose here.

And you said in Davis it’s an objective — what would an objective person viewing this test–

Sonia Sotomayor:

But whose primary purpose is it?

I mean, the victim here knew that the incident hadn’t happened there.

Sonia Sotomayor:

There was nothing he had to share with the police, because they could see he was bleeding from his stomach and he had been shot.

He apparently didn’t fear any threat, or there doesn’t seem to be any circumstances suggesting an immediate threat to him.

He had driven away.

Rick didn’t know where he had gone.

So what’s the ongoing emergency to the victim?

Lori B. Palmer:

–I think here, in this line in Davis, you said the primary purpose is the questioning is what you look at in Davis.

And we are not asking you to overrule that.

Sonia Sotomayor:

Well, wait a minute.

What is the primary — isn’t — doesn’t — isn’t there a footnote that says the primary purpose of the declarant is what is at issue?

Antonin Scalia:

That is — that is what it says.

Lori B. Palmer:

What–

Antonin Scalia:

It’s the — it’s the — it’s the purpose of the declarant, not of the questioner.

Lori B. Palmer:

–But the formality indicators that the Court delineated in Davis did not include whether the answers to the questions were for the purpose of establishing past events, but whether the primary purpose of the questions were for those ends.

The — the question is one of context, not content, as you noticed in — as you said in Crawford.

Sonia Sotomayor:

Well, in Davis, the issue is: Why was the declarant talking?

What you were trying to do was to figure out whether the declarant was seeking help or attempting to get someone arrested.

That’s how I read the situation.

The questions provided context for that.

Are you seeking immediate ongoing help or are you talking about an event, attempting to get the police to intercede and arrest the person?

Isn’t that a fair reading of that case?

Lori B. Palmer:

Yes.

And in Davis, you said also that there comes a point where courts can tell when the questioning takes on a different tone and the answers might become testimonial.

When the questioning seeks answers that go beyond meeting the emergency, then courts can properly find there’s a point where the non-testimonial statements end and the testimonial statements begin.

Samuel A. Alito, Jr.:

In a situation like this, do you think it’s meaningful to ask what the primary purpose of the victim was when he responded to the police and said who shot him?

You have a man who has just been shot.

He has a wound that’s going to turn out to be fatal, and he’s lying there on the ground bleeding profusely, and he says: My primary purpose in saying this is so they can respond to an ongoing emergency?

No, but I also have the purpose of giving them information that could be used at trial, but it’s a little less — that’s a little bit less my purpose than responding to the ongoing emergency.

It seems like it’s totally artificial.

Lori B. Palmer:

Yes.

And I think it — any time you ask the Court to delve into the subjective intent of someone who is not present and cannot testify and cannot tell you, it necessarily complicates things.

Lori B. Palmer:

And I think it takes away–

Antonin Scalia:

What possible response to an ongoing emergency could he have had in mind?

What possible response to an ongoing emergency?

Lori B. Palmer:

–He did ask–

Antonin Scalia:

He was bleeding to death and he could have said, you know, I’m bleeding to death.

Now, that statement would — would be, you know, suggesting an ongoing emergency.

But giving the name of the person who shot him, where he was shot, what does that have anything — how does that have anything to do with an ongoing emergency?

Lori B. Palmer:

–The police, upon responding to the scene, don’t know that this emergency is limited–

Antonin Scalia:

But he does.

Lori B. Palmer:

–to that person.

Antonin Scalia:

But he does.

Lori B. Palmer:

Which is why you have to look at the entire context.

Antonin Scalia:

He knows — he knows that his — that the person that shot him is nowhere near there.

He knows that — that he drove, what — how far away was it?

Six blocks or — a good distance from where the shooter was.

He knows all of that.

The only reason he could be giving the name of the person who shot him is so that person could be apprehended and punished.

Lori B. Palmer:

And yet that subjective mindset doesn’t affect the formality.

It doesn’t change the fact that this is an informal situation.

You don’t have the–

Ruth Bader Ginsburg:

Suppose he had survived.

Suppose Covington had survived instead of died.

And then the prosecutor says, I want to introduce this evidence against Bryant.

Would you say that, yes, it’s nontestimonial, so it comes in?

Lori B. Palmer:

–He would have to be unavailable for it to come in.

Ruth Bader Ginsburg:

But why, if it’s nontestimonial?

Lori B. Palmer:

Well, under — as the way the current jurisprudence is, he would have to be unavailable.

If it’s not testimonial, I do not think it would offend the Confrontation Clause for it to come in.

Ruth Bader Ginsburg:

If you said — you said it’s — you are typing it nontestimonial.

It goes to emergency situations.

Ruth Bader Ginsburg:

So I’m saying: Would that carry over to the man survived and the prosecutor says, I don’t need to put him on the stand so he can be cross-examined; I have got nontestimonial evidence that I can put in?

Would it become testimonial, then, if he survived?

Lori B. Palmer:

No, I don’t think it would change the nature of what happened at the time.

I do think, though, that is why we have said the Confrontation Clause is not some sort of super-hearsay rule and we will allow the Government–

Ruth Bader Ginsburg:

But then — then your answer is that if we typed it as nontestimonial in my trial scenario, it would be nontestimonial, it comes in.

Lori B. Palmer:

–As long as it was not somehow barred by the rules of hearsay, which I believe it would be.

John G. Roberts, Jr.:

I’m confused on what — what Davis focuses our inquiry on.

Is it the purpose of the interrogators or is it the purpose of the declarants?

We say the statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events.

The — the focus seems to be on the purpose of the interrogation, which seems to be the question of what the police thought, not what the — the person dying thought.

Lori B. Palmer:

That’s correct.

And I understand there is the footnote stating that, obviously, the declarant’s statements are at issue.

If there were no declarant, then–

John G. Roberts, Jr.:

Yes, I mean–

Lori B. Palmer:

–there wouldn’t be an issue.

John G. Roberts, Jr.:

–But what the footnote — I’m sorry to interrupt you, but what the footnote says is in the final analysis, it’s the declarant’s statements, not the interrogator’s question, that the Confrontation Clause requires us to evaluate.

So which — I guess, which is it?

Lori B. Palmer:

I think what happens is the interrogator’s statements are not what are going to be determined to be testimonial or nontestimonial.

They provide a glimpse into the context.

So we can determine whether those statements that are at issue are testimonial or nontestimonial.

They are one way to determine the formality of the situation.

Antonin Scalia:

One way to evaluate those statements is what they are made in response to.

If they are made in response to a certain type of police inquiry, they are more likely to be testimonial.

And another kind — you know, are you dying?

They are more likely not to be testimonial.

But it is ultimately the statements that — that we have to evaluate, whether they are testimonial or not.

Lori B. Palmer:

Correct.

But as–

John G. Roberts, Jr.:

Well, then, how does that apply?

The officer says, what happened?

John G. Roberts, Jr.:

And the — the declarant says, Rick shot me.

Now, is that testimonial or not?

Because the declarant knows he is 6 miles away.

It’s not going to help them solve an emergency, but the police don’t know that.

Lori B. Palmer:

–Right, which is why when I think you look for the purpose of the questioning here, it’s to respond to an ongoing emergency.

The police don’t know–

Antonin Scalia:

Well, if it was an emergency, he wouldn’t have asked, “What happened”?

He would ask, “What is happening”?

Lori B. Palmer:

–I don’t–

Antonin Scalia:

To ask what happened is to ask the declarant to describe past events, which is testimonial.

Lori B. Palmer:

–I don’t think that you can make that kind of bright-line rule.

I think here when you have a man bleeding out on a sidewalk and you don’t know — is there an assailant behind him; is there — are there victims somewhere else; is, you know, this a wanted felon — I think there is an ongoing emergency until you can determine–

Anthony M. Kennedy:

And you — you do not know if the man is running amok and threatening to shoot other people or if — if he is drunk, if he is on a rampage, if it’s a college campus, then it’s — it’s — it’s a sniper.

You just don’t know.

Lori B. Palmer:

–Right.

But–

Antonin Scalia:

If you were worried about that, do you run immediately over to the person lying on the ground or do you examine the gas station first, rather than expose yourself to the — to the shooter that you think is still in the gas station?

The — the behavior of the police here gave no indication that they thought they were in danger immediately, and — and were interrogating this person in order to assess the danger to them.

That wasn’t what they were after.

Lori B. Palmer:

–Well, to be fair, this was before Crawford was answered.

The questions were asked were to determine whether this was an excited utterance, and the questions that we would like to know now were: What did you do for your safety?

How were you worried?

What were — that was not at issue–

Anthony M. Kennedy:

Well, I’m not sure that policemen should read Crawford before they perform their — their peacekeeping duties.

The — no — no one questions the right of the police to — to ask these questions and to use the word either “happens” or “happening” or “happened”.

The question is whether or not the answers are, later, admissible.

Those are two different inquiries.

Lori B. Palmer:

–Correct.

And I was simply saying the record would have been better–

Anthony M. Kennedy:

And, of course, Crawford rejects reliability as a criteria.

Lori B. Palmer:

–Yes.

So our position here is that you cannot evaluate an ongoing emergency from hindsight.

When police — you know, arrive on a scene and find a wounded man bleeding, they don’t know the circumstances until they can find out what happened, who did it and where did it happen, and try to assess the risk of harm, as you said in Davis, to themselves, to the victim, and to others.

Sonia Sotomayor:

But what does that have to do — we are back to the reliability test, really, because they didn’t do anything wrong.

They were trying to assess the situation.

But that’s just what they do when any report of criminal activity occurs.

That’s a different inquiry than the inquiry of: Why should that statement be permitted to be introduced at trial?

It goes to the very essence of reliability.

Was the statement made under circumstances that would suggest an intent to testify?

That’s really what you’re getting at, isn’t it?

Lori B. Palmer:

No.

Sonia Sotomayor:

Well, you are, because you were trying to pigeonhole yourself into an ongoing emergency that suggests that in those situations, whatever the person is saying is okay, because it was done to assess an emergency situation and not done for purposes of catching somebody, primary purpose of catching somebody.

Lori B. Palmer:

Which is what this Court said in Davis, and said that that was not related to reliability but to formality there, and that that was not a formal thing, such as a magisterial examination.

We are not trying to question or in any way change the test already set forth by this Court in Davis.

We agree with that test.

We simply disagree with the application by the lower court of that test here and the limitation it put on it.

Ruth Bader Ginsburg:

So are you saying that the rule would be that whenever the perpetrator may be in the vicinity, then the police are pursuing an urgent emergency situation rather than trying to find out what had — the nature of the crime?

Lori B. Palmer:

We are not saying that any time there is a perpetrator at large, there is automatically an ongoing emergency until that person is caught.

What we are saying is that preliminary inquiries on the scene to try to determine who the perpetrator is and where it might be would be–

Sonia Sotomayor:

For all crimes, or only for shooting crimes or knifing crimes?

For explosions?

What kinds of crimes would qualify?

Lori B. Palmer:

–I think, obviously, violent crimes raise ongoing emergencies, emergencies to which — more than others.

There could also be contexts in which it would apply to other crimes.

Antonin Scalia:

So at least whenever the police come upon somebody who has been the victim of a violent crime, whatever interrogation they conduct could plausibly be to — to make sure that the person is not still nearby, and that testimony will always be admissible?

Lori B. Palmer:

It is preliminary questions designed to assess the risk to themselves, the public, and–

Antonin Scalia:

No, no, no.

It’s not designed to assess the risk.

You don’t know what they are designed to do.

These policemen didn’t say: We are assessing the risk.

Antonin Scalia:

They just asked the questions.

And that’s what is going to happen in future cases.

And you are saying, whenever policemen come upon a victim of violent crime and said: Who did it?

What’s his name?

All of that will always be admissible, because they — they could be assessing the risk, right?

Lori B. Palmer:

–I think if the context shows that’s the primary purpose, then yes, that will often be the case.

Stephen G. Breyer:

What do you mean?

How could it possibly be admissible.

First, there has to be a degree of formality, as the Court held in Hammon, sitting in the kitchen; and second, it has to satisfy State hearsay tests.

So unless it’s an exception to the hearsay rule, it is not admissible.

Lori B. Palmer:

Well, here, for instance, it was admitted as an excited utterance.

Stephen G. Breyer:

Well, of course there are exceptions.

There could, in fact, there could be a coconspirator exception.

There could be a dying declaration exception, but what we are talking about is whether the Constitution keeps it out, even though State law — because, say it’s a coconspirator exception — would permit it in.

So the answer is no, it’s not the case that whenever you come across a victim of a crime and ask him questions, it’s going to be admissible.

It depends.

The State hears the law, the exception, and whether there is a degree of formality, as there would in Hammon.

Antonin Scalia:

Only when he’s excited, right?

Only when the victim who has been the object of a violent crime is excited.

Or if State law doesn’t apply and we are dealing with a Federal crime and Federal officers, right, and trial in Federal court?

And in that case, what Justice Breyer just said would not apply.

Lori B. Palmer:

That’s correct.

And I–

Stephen G. Breyer:

It would not apply?

There are — there isn’t a Federal hearsay rule?

And there are not exceptions that you have to satisfy?

Lori B. Palmer:

–Your — I–

Stephen G. Breyer:

I thought there were, in my copy of the Federal Rules of Evidence.

Lori B. Palmer:

–Yes.

And I did misspeak.

Lori B. Palmer:

What I meant to say was that it would be non-testimonial, not that it would always be admissible.

Ruth Bader Ginsburg:

In the — if you had the benefit of hindsight and this trial occurred before Davis, and so the prosecutor went on excited utterance, would you have instead tried to make a case that this was a dying declaration?

Lori B. Palmer:

Absolutely.

I will reserve whatever time I have left.

John G. Roberts, Jr.:

Thank you, Counsel.

Ms. Kruger.

Leondra R. Kruger:

Mr. Chief Justice, and may it please the Court:

As we understand the rule of Davis v. Washington, it is a rule that focuses on the primary purpose behind police interrogation, because it’s designed for a particular purpose: Not to provide a comprehensive definition of the term “testimonial”, but rather to identify those statements that are testimonial because they are made in response to police interrogation.

When the objective primary purpose of that interrogation is to enable police to meet an ongoing emergency rather than to collect evidence for future possible prosecution, the statements that are given in response to that interrogation are non-testimonial.

Antonin Scalia:

Do you distinguish between collecting evidence for a future prosecution and collecting evidence in order to pursue and arrest the felon?

Do you distinguish those two?

And you can say these police — these policemen weren’t collecting evidence for a future prosecution; they just wanted to know who the shooter was and where he was so they could go get him.

Would that — would that not be collecting evidence for a future prosecution?

Leondra R. Kruger:

I think that there are often multiple reasons, particularly in the wake of a violent event like a shooting, why–

Antonin Scalia:

But you say it has to be for the purpose of a future prosecution.

Just — just in order to an arrest and bring into jail the person who committed this crime, that doesn’t qualify?

Leondra R. Kruger:

–I think that what would qualify under the Davis test is if police need to apprehend the person, not for purposes of bringing the person into the criminal justice system, but rather to neutralize an ongoing threat that they present to the community at large, as is often the case when somebody has just proven themselves both capable and–

Antonin Scalia:

When does that not exist in the case of a violent crime?

When does that not exist?

Leondra R. Kruger:

–I think it makes a significant difference–

Antonin Scalia:

There is a violent criminal out there.

Leondra R. Kruger:

–Justice Scalia, I think it makes a significant difference whether we are talking about a — an act of violence like a shooting, somebody who has used a weapon that is capable of inflicting deadly harm on multiple victims in a short period of time, or someone who has used their fists, like the alleged perpetrators–

Antonin Scalia:

Okay.

So if you use a gun, a knife, or a machinegun, whatever the victim says gets admitted into evidence, because the police could — could be not — not trying to get evidence, but just trying to safeguard society against the — the felon on the loose?

Leondra R. Kruger:

–I don’t think that we would draw the rules that broadly, Justice Scalia.

Antonin Scalia:

I thought that’s how you just described it.

Leondra R. Kruger:

Well, I think that in this situation, we have police arriving on the scene to discover a man who has been recently shot; as it turns, fatally.

Antonin Scalia:

Yes.

Leondra R. Kruger:

They need to find out in that situation–

Antonin Scalia:

Who did it.

Leondra R. Kruger:

–They need to find out who did it so that they make sure that person isn’t continuing to threaten other people on the scene.

Antonin Scalia:

That’s always the case.

That’s such a phony evasion of what the purpose of a testimonial rule is.

That’s always going to be the case, at least when there is a violent crime.

Leondra R. Kruger:

Well, I think–

Antonin Scalia:

And you may as well take Crawford and throw it out, in — in the majority of serious cases, if that’s going to be your rule.

Leondra R. Kruger:

–I don’t think that that’s the case at all, Justice Scalia.

I think it’s actually very much consistent with what this Court said in Davis.

It may very well have been that the subjective purpose of the 9-1-1 operator was also to bring the perpetrator in that case to justice.

But this Court, I think quite properly, recognized that in an emergency situation, the attention of both law enforcement and the declarant is quite properly going to be focused on dealing with the emergency at hand and is not going to be made of the kind of focused understanding of–

Antonin Scalia:

The crime was ongoing in — in Davis when — when the woman was on the phone with the operator.

It was ongoing.

She was seeking help from the emergency that was occurring to her at that moment.

There is nothing like that here.

Leondra R. Kruger:

–It is true that that is a factual distinction between this case and Davis, but we don’t think that it’s one that makes a dispositive–

Anthony M. Kennedy:

Did the police know that that was the case when they began the questioning?

Did the police know that this man was not on a rampage, that he was not going to act in self-defense when they came after him?

Leondra R. Kruger:

–No, they certainly did not know that, Justice Kennedy.

Anthony M. Kennedy:

That he was not taking hostages?

Leondra R. Kruger:

That’s correct.

They had no way of knowing that.

And neither, for that matter — I think it is important to emphasize — did the declarant.

The fact that he was able to escape the scene and managed to drive himself 6 blocks away in no way indicates that he had any–

Antonin Scalia:

Will they ever know that?

Leondra R. Kruger:

–I–

Antonin Scalia:

I mean, is that — is that likely not always to be the case when — when you come upon a person who has been the — they victim of a violent crime?

You can say it all the time.

No, they didn’t know where the — where the offender was, so whatever this person says comes in as evidence in a trial.

Leondra R. Kruger:

–Well, I think it’s important to emphasize that what we are arguing for is not a rule that would say as long as there is a violent perpetrator at large, as long as he is at large, any questions that police ask of — of potential people who have information about the crime would necessarily be non-testimonial.

Our argument is a far narrower one, and one that we think follows very closely from the principle articulated in Davis, which is when the primary purpose of the police interrogation is to obtain information that is necessary for them to meet an ongoing emergency–

Ruth Bader Ginsburg:

Well, how do you know that?

Because they would ask the same very questions if what they wanted was testimonial evidence.

So you can — you can characterize that set of questions either way.

What would lead us to pick one rather than the other?

Leondra R. Kruger:

–I think it’s actually not the case, Justice Ginsburg, that they would have asked the very same questions.

We know from reading the trial testimony that the officers, as they appeared on the scene in response to the police run of a man being shot, asked the same question over and over again.

Each officer, as they approached him, said: What happened?

Where did it happen?

And wanted to know how to recognize the shooter so when they proceeded to the scene they would know who they were dealing with and how to safeguard themselves.

Anthony M. Kennedy:

Let’s say–

Leondra R. Kruger:

They weren’t asking the type of questions–

Anthony M. Kennedy:

–Let’s say that we — let’s say that we agree with you that there was an emergency and the police were asking questions in order to mitigate the emergency.

What would be the rationale for admitting this statement, then?

Is it more reliable?

Because if we say that, then we are undercutting Crawford, which says reliability is not the key.

What is the reason for this?

Is it because the police likely have less motive to manipulate the — the statements and to ask loaded questions?

That in itself, it seems to me, is a reliable — but what is the — assuming we adopt your distinction, what is the rationale for the distinction?

Leondra R. Kruger:

–We think that the principle that this Court announced in Davis and we are asking this Court to apply again today reflects two principles that underlie the Confrontation Clause as this Court interpreted it in Crawford.

The first is that testimony is typically characterized by the kind of focused understanding by the declarant that the person is providing information for potential use in future prosecution.

It’s — the petitioner in Davis, I would note, made an argument to this Court that whenever a person calls 9-1-1, they do so with an awareness that the information they provide may be used for prosecutorial purposes.

But this Court rejected that argument, because it understood, I think quite rightly, that there is a difference between providing that sort of information to law enforcement with a sort of vague awareness that that might be its potential use, and doing so with the kind of focused understanding that has been characteristic of the testimonial statements this Court has so far identified, like Sylvia Crawford’s station house interview in Crawford or Amy Hammon’s interview with the police officer from the safety of her kitchen that resulted in the execution of a formal affidavit in the Davis case.

Ruth Bader Ginsburg:

One of the officers zeroed in on the victim.

No one was looking around to see if anybody was lurking in the bushes.

Then as far as protecting the public, do we take into account that this was between 3:30 and 4:00 in the morning when they are not likely to be many members of the public around, or do we just say, you find someone, looks like he has been the victim of a violent crime, doesn’t matter whether the public is around or not, we — the victim of a violent crime can be asked these questions.

Leondra R. Kruger:

To take your first question first, Justice Ginsburg.

I think that the trial testimony is not quite as clear on the question of what fears the officers had as I think Respondent has suggested in his brief.

If you look at Joint Appendix page 136, Officer Stuglin testified that he was, in fact, afraid for his safety when he got to the gas station.

I would note that all of the officers when they left the gas station after EMS arrived they proceeded immediately to the location of the shooting.

The location that Anthony Covington had identified for them.

Leondra R. Kruger:

When they got there, they took a tactical position and they waited for back-up and they did so because they were afraid that a shooter was in the house, and they wanted to proceed very cautiously in making sure that they neutralized the threat that shooter posed to the public safety, including their own.

I think that in examining the exigencies of a situation a court would be justified in looking at the circumstances in which the crime occurred, and could very well take into account the fact that the crime occurred at 3:00 in the morning as opposed to 5:00 in the afternoon.

But I think that we would expect any reasonable police officer to do precisely what the police officers in this case did, which is proceed directly to the scene, not use their interview with Anthony Covington as an occasion to execute an affidavit or otherwise–

John G. Roberts, Jr.:

Then you are saying that the focus is on the police officers.

And after all, we are not saying that police officers can’t do this, we are just saying the testimonial aspects can’t be admitted into evidence or that is what your friend is arguing for.

I still have trouble figuring out is the issue the purpose of the interrogating officers, or the purpose and intent of the Declarant?

Leondra R. Kruger:

–I think that the test that the Court set out in Davis is one that focuses on the purpose of the interrogation because of the limited context in which that–

John G. Roberts, Jr.:

Okay.

And what do you do with the last sentence on footnote 1.

It’s the one that says–

Leondra R. Kruger:

–In the end it’s the Declarant’s statement that the Confrontation Clause requires us to examine.

John G. Roberts, Jr.:

–Right, right.

Leondra R. Kruger:

We read footnote 1 to be an acknowledgement that answers given in response to police interrogation do not constitute the universe of possible testimonial statements, that testimony can indeed be volunteered as was Lord Cobham’s letter, for example, in Sir Walter Raleigh’s treason case, but in the end Davis, I think, quite properly focuses on the primary purpose of the interrogation.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Van Hoek.

Peter Jon Van Hoek:

Mr. Chief Justice and may it please the Court:

When Anthony Covington made his statement to the officers at the gas station, not just once but several times, he reasonably understood that he was providing the police information as to events which had concluded a half our earlier at a location six blocks away with an understanding that that information would assist the police in locating, apprehending and potentially prosecuting the person he felt was responsible for his injury.

Anthony M. Kennedy:

I didn’t hear the end.

In locating and?

Peter Jon Van Hoek:

And apprehending, arresting.

Stephen G. Breyer:

If — what keeps that out?

I mean, assuming that a State law or Federal Rules of Evidence admitted as an exception to the hearsay rule, why should the Confrontation Clause bar it?

There is not great likelihood that like Sir Walter Raleigh or Cobham’s affidavit is going to be introduced, per se, into the trial as a form of evidence that there was — why would we want to keep it out?

That is the part that I do not understand.

Peter Jon Van Hoek:

Well, certainly.

Stephen G. Breyer:

Under the Federal Constitution?

Peter Jon Van Hoek:

The Federal Constitution–

Antonin Scalia:

I think your answer, counsel, is that we decided that in Crawford from which Justice Breyer dissented.

Stephen G. Breyer:

Suppose I think he did it.

Anthony M. Kennedy:

Perhaps there is another answer that I would like to hear.

Stephen G. Breyer:

I would like to hear your answer because I don’t think we decided it in Crawford.

John G. Roberts, Jr.:

Now is a good time to try to jump in, I think.

[Laughter]

Peter Jon Van Hoek:

–The reason, Your Honor, that the Confrontation Clause is the fundamental, part of the fundamental law of the country, and what this Court, I believe, decided in Crawford and then applied to situations, similar situation in Davis and Hammon, is that where you have a statement from a witness to a police officer as part of the questioning and that statement is the functional equivalent of testimony that witness would have given had he or she appeared at trial and been subject to cross-examination, then the admission of that statement at trial even under hearsay exception without cross-examination effectively allows.

Stephen G. Breyer:

Does it mean, does it mean that the individual is thinking this may be used — there is a certain formality of the situation, it may be used at trial or it may just happen to turn out?

What is the relevance of the formality of the situation?

When I looked into history I thought — I’m not an expert in history — and I’m also understand that have been situations where the Court’s gone back to prior cases and looked at footnotes and said it doesn’t express things precisely clearly and changed it a little bit.

I think that that all could be open to us.

So I want to know what the basic reason is that would justify keeping out, let’s say an investigation.

There is an investigation of a crime, and a policeman comes across a confederate who makes some statements just generally that help the investigation, therefore it would come in as co-conspiracy, okay?

What in the Constitution, what functional principle is there that says we should keep that out of Court?

Peter Jon Van Hoek:

Because I think what this Court said in Crawford and Davis is that is the primary test, that is what our Constitution requires to allow the reliability, the believability, the trustworthiness of that evidence to be evaluated by a jury.

We don’t have a situation–

Stephen G. Breyer:

Is it all hearsay?

Now all hearsay evidence, despite State or Federal rule makers saying there are exceptions where the trustworthiness is sufficient, such as co-confederates — confederates, all of that is wiped out by Crawford?

Peter Jon Van Hoek:

–It would be wiped out if the statement at issue qualifies as testimonial under the test this Court announced in Crawford and Davis.

Antonin Scalia:

That’s what we said in Crawford, isn’t it?

Stephen G. Breyer:

Of course what I’m looking for now is whether there is any sense to that?

What is the constitutional rationale?

I agree on joining Crawford, but I have to admit to you I have had many second thoughts when I’ve seen how far it has extended as I have written it.

Peter Jon Van Hoek:

Well, I would have to say the constitutional justification of that is the reason why the right of constitution isn’t in the Constitution.

Where you had a situation in English common law where magistrates were allowed to go out, interview witnesses, come into court and present their memory, their version of what the witness said as substantive evidence in the case and the defense is not allowed to question or talk.

Stephen G. Breyer:

That’s the value of just what I’m looking for.

What I’m looking for is I can go into Blackstone a little bit and look back and see what this was after, was the problem of Sir Walter Raleigh’s trial and the Marion judges, and now what I need is a line.

Because if I can’t find a line, then what we’ve done would seem just as wrong to me, is suddenly bar virtually all hearsay exception evidence of which for 400 years, or 200 years anyway, there has been quite a lot in the courts.

Peter Jon Van Hoek:

I certainly don’t think Crawford and Davis bars all.

Stephen G. Breyer:

What, in your view, is the correct line and why, most importantly why?

Peter Jon Van Hoek:

I believe this Court in Crawford and Davis correctly established that line, in a situation like this where it is the response of a citizen to questions from a police officer, that you look primarily, as footnote 1 indicates, to the content of that statement.

Samuel A. Alito, Jr.:

But we established that this was a dying declaration and was made in contemplation of death, would it be barred by Crawford?

Peter Jon Van Hoek:

Well, this Court certainly has suggested that in Giles, that a dying declaration might be an exception to Crawford as an exception that existed at the time of the framing.

Peter Jon Van Hoek:

We don’t have to deal with that question in this case because this is not a dying declaration.

Samuel A. Alito, Jr.:

I understand that, but assume for the sake of argument that it would be consistent with Crawford if it were a dying declaration, which the Court has suggested.

What does that tell you about the understanding of the scope of the confrontation right at the time when the Sixth Amendment was adopted?

Because a dying declaration may very well be testimonial under — is likely to be testimonial under the Crawford test.

Peter Jon Van Hoek:

Yes.

And I think maybe the dying declaration as being in that situation is an indication.

What is different about dying declaration from all these other hearsay exceptions is that at the point at which the statement is made it is an understanding that that witness will not be testifying, that there is no potential that that witness will appear in court in person.

There is — the police officers in any of these situations speaking to the witness, when a police officer arrives at the scene they have no way of knowing what is going to occur months later.

Anthony M. Kennedy:

I thought — I thought the rationale for dying declaration admissions was that they are inherent reliable — inherently reliable.

You can certainly question that.

But I thought that that was the rationale that the Court gave.

Peter Jon Van Hoek:

I think that’s correct.

Anthony M. Kennedy:

On your death bed before you are going to meet the maker, you were not going to lie, I think that was the test.

So it was a reliability component, correct?

Peter Jon Van Hoek:

That’s true.

I think that’s — that’s also the — the — the background of most hearsay exceptions is that for the circumstances that there is some degree of inherent reliability to that statement which excuses the absence of cross-examination if the witness is unavailable.

But–

Anthony M. Kennedy:

Now, suppose that there is a universe of instances that says we can identify as questions in order to alleviate and stop an emergency to prevent a crime from becoming aggravated and continuous.

Let’s suppose we can have a universe of those questions.

Peter Jon Van Hoek:

–Yes.

Anthony M. Kennedy:

Is — is there an argument that responses made for that purpose are more reliable?

Is that what — is that what underlies the so-called emergency exception, do you think?

Peter Jon Van Hoek:

I don’t believe so.

I don’t believe that — that a — a — a statement by a witness that is a narrative–

Anthony M. Kennedy:

So the — so the — well — and, of course, Davis is certainly does not rest on reliability — Crawford rather doesn’t rest on reliability.

Peter Jon Van Hoek:

–No.

Anthony M. Kennedy:

But isn’t that really the only way to explain the 911 exception?

Peter Jon Van Hoek:

No, no.

The 911 — well, the fact there’s a 911–

Anthony M. Kennedy:

Isn’t there a reliability component that underlies this whether we like it or not?

Peter Jon Van Hoek:

–I don’t think that the fact that someone calls 911 and makes a report, whether they are talking about an ongoing situation or reporting of a past event, makes that somehow inherently more reliable than if they had used another medium.

I think the distinction in Davis is that the beginning of the 911 call that Mr. Contra was making to the case was not relating past events it was a declaration of emergency.

It was a call for immediate assistance.

Anthony M. Kennedy:

But isn’t — isn’t the reason we accept that is because it’s reliable.

It’s an excited utterance, it’s an account of an ongoing event.

It’s a contemporaneous observation, therefore, it is reliable.

Peter Jon Van Hoek:

I don’t — no, I don’t think that’s the basis on which this Court held it was nontestimonial.

I think this Court held it was nontestimonial because it was not what a witness does during a trial.

It was–

Ruth Bader Ginsburg:

Let’s go back to this case.

Peter Jon Van Hoek:

–Yes.

Ruth Bader Ginsburg:

Excited utterance was — the prosecutor thought that was his best shot, and he — and he prevailed, except that the — Davis intervened.

I asked Ms. Palmer, suppose we were back there at the trial and the prosecutor knew that excited utterance wouldn’t work, could he have raised dying declaration?

She said absolutely yes.

So my question to you is, just assume that we should hold the confrontation clause that is applicable.

Shouldn’t the prosecutor then have a chance to say, well, if I realized that, I could have made a dying declaration plea here, so it would only be fair to allow the prosecutor to try to establish that this testimony was a dying declaration?

Peter Jon Van Hoek:

Well, in — in this case, when — when — when the initial attempted admission of this evidence, at the preliminary exam, when it met a hearsay objection, the prosecutor at that point argued that it was admissible under Michigan evidence rules as either an excited utterance and/or a dying declaration.

Ruth Bader Ginsburg:

Maybe she argue dying declaration.

Peter Jon Van Hoek:

Well, they argued dying declaration, the judge sustained the objection and said he has not established the foundation for either one of those.

The prosecutor at that point established a foundation solely for excited utterance.

The judge ruled the evidence admissible and specifically said admissible only as excited utterance.

At that point the prosecution abandoned any attempt, threw out the State court proceedings to say this was a dying declaration.

Ruth Bader Ginsburg:

And that — that — that was in the pre-Davis world.

But do you think the prosecutor had abandoned that effort had he been informed about Davis?

Peter Jon Van Hoek:

I don’t know.

I don’t know what–

Antonin Scalia:

Mr. Van Hoek, what is the basis for your concession that a dying declaration is an exception from the Confrontation Clause?

It is an exception from hearsay, for certain, but from the Confrontation Clause?

Peter Jon Van Hoek:

–I’m not — if I — if I meant — if you took what I said as a concession, what I said is that this–

Antonin Scalia:

You conceded it.

Antonin Scalia:

It’s been the whole basis for Justice Ginsburg’s subsequent interrogation.

Ruth Bader Ginsburg:

My question was based on its an open question, because we have said maybe dying declaration.

Peter Jon Van Hoek:

–And I–

Antonin Scalia:

I — I thought it was an open question only — only where the — the defendant has effected the death of the person who has made the dying declaration.

I don’t know of any cases that allow a dying declaration in over a Confrontation Clause objection.

Peter Jon Van Hoek:

–If I — if you took my answer to the prior question to say that I conceded that, I’m not saying that.

I’m saying when I was first asked the question about dying declaration, I pointed out that this Court in Giles indicated that that may be an exception to the Confrontation Clause.

And I agree–

Ruth Bader Ginsburg:

And it wasn’t — and it wasn’t in Giles.

It wasn’t in–

Peter Jon Van Hoek:

–No, Giles is not–

JUSTICE GINSBURG — any way to the — that the — that the purpose of the killing was to get rid of the witness’s testimony.

Giles made the statement maybe dying declaration is an — is an exception to our Crawford’s jurisprudence.

Yes.

And as you said, this Court has not reached that question directly, and — and there is no need to reach that question in this case because this is not a dying declaration case.

Antonin Scalia:

If it hasn’t been reached and if it is not an established exception to the Confrontation Clause, there is no basis for saying, therefore, the Confrontation Clause pertains only to reliability.

It pertains to the opportunity to cross-examine.

And — and reliability exceptions are what we used to do under — under Reynolds.

If it was reliable, we let it in.

The mere fact that it is reliable as a dying declaration instead of reliable as to something else ought to have nothing to do with the Confrontation Clause decision.

Peter Jon Van Hoek:

I agree.

I’m not — I clearly don’t–

Ruth Bader Ginsburg:

–Whether you agree or not, we said it was an open question.

Peter Jon Van Hoek:

–Yes, yes.

Samuel A. Alito, Jr.:

Can there be–

Peter Jon Van Hoek:

And it has not been decided.

Samuel A. Alito, Jr.:

–Can there be a situation in which the primary purpose for a statement or for the question that elicits the statement is to respond to an ongoing emergency rather than to gather evidence for subsequent use in a legal proceeding when the statement relates to something that has occurred, perhaps just a few seconds before, but it relates to something that has occurred as opposed to something that is occurring at that very moment?

Peter Jon Van Hoek:

I think there are situations where — where the police are coming in and asking questions, is there a threat here?

Is there someone here who is — who is threatening you?

Is there someone here who is coming to threaten you or other people?

Peter Jon Van Hoek:

They may be able to get some background information to put it in context, but we don’t have anything like that in this case.

Samuel A. Alito, Jr.:

But I understand, but we need to know where to draw the line.

So, you concede that the line is not between a statement about he is hitting me with a baseball bat as opposed to he just finished hitting me with a baseball bat and is headed out the door?

That is not where the line is drawn.

Peter Jon Van Hoek:

I think the line would be drawn if those were the only statements, he’s hitting me with a baseball bat, versus he — he just hit me with a baseball bat and he just left.

I think the line is clearly drawn in Davis between the hitting me with a baseball bat would be nontestimonial–

Samuel A. Alito, Jr.:

I really would like a clear answer to this.

Is — can there be an ongoing emergency where the statement relates — where the statement recounts something that has occurred, not something that is occurring?

Peter Jon Van Hoek:

–I think that in the absence of any statement by the witness alleging that there is any current ongoing imminent danger, if the witness only gives a statement that relates to past completed events, then it’s not a showing of — of an ongoing emergency.

John G. Roberts, Jr.:

So what do you do — what do you do with the statement

“The guy in the gas station shot me? “

Is that purely past or is that an ongoing emergency?

Peter Jon Van Hoek:

That statement standing alone I would say that that is past, purely past.

John G. Roberts, Jr.:

Even though the guy in the gas station is still there with a gun, the police are within range?

Peter Jon Van Hoek:

Are we referring to a specific person?

John G. Roberts, Jr.:

Yes.

I mean, that strikes me as something that happened in the past, he shot me, but at the same time demonstrates an ongoing emergency because he is right there and he might shoot you.

I’m suggesting the line you propose to Justice Alito doesn’t work.

Peter Jon Van Hoek:

Well, I — I — I would — I don’t — I don’t think that — that the — the — the discussion of verbs tense and past tense, I don’t think that is the — is the — is the determining factor.

It’s certainly important, certainly a relevant consideration in–

Antonin Scalia:

The guy in the gas station is present.

It’s not past.

He is making an assertion the guy who is now in the gas station shot me.

The shot me is past, but he is asserting that the person is now in the gas station.

That is a statement of a present fact.

Peter Jon Van Hoek:

–Yes.

And I think if you look at all of the circumstances together, it’s a — it’s — and going to the primary purpose is, is the witness declaring some type of emergency, some sort of imminent harm and requesting the police to render assistance to alleviate that, to protect him — him or her.

Samuel A. Alito, Jr.:

Well, suppose they get a 9-1-1 call.

There’s — a man has just been shot on the corner of Fifth and Main.

They go to Fifth and Main; they find a man there; he’s shot; he’s bleeding profusely; he’s in shock; and they know nothing more about what’s happened.

Samuel A. Alito, Jr.:

And they say, well, what happened?

Well, he shot me.

Who shot you?

It’s John Jones.

Now what about that?

Peter Jon Van Hoek:

I would say that’s our case and I would say that was testimonial.

Samuel A. Alito, Jr.:

Well, the police under those circumstances don’t know whether John Jones is going on a shooting spree; this is just the first of numerous victims.

Maybe it’s a gang fight.

He’s shot one member of an opposing gang; now he’s going to go shoot another member of an opposing gang.

How can they — how can you answer that question, what’s the primary purpose there?

I just don’t understand it.

Peter Jon Van Hoek:

Well, I would — in that situation, nothing about the Davis rule and nothing about the Confrontation Clause precludes the police from taking that information and asking those further questions.

Anthony M. Kennedy:

But you — you — you were you the one that drew the line between a past event and ongoing event.

Suppose the sniper says, I’ve shot you now, and I’m going to shoot three other students, good-bye.

That’s a past event.

Peter Jon Van Hoek:

But if the statement is made to the police that a sniper has said he’s — he is on the verge of shooting other people, because he just shot someone, I would say that’s certainly a declaration of an emergency and certainly would be non-testimonial under the — under the test of Davis.

Stephen G. Breyer:

Is there any — I’ll try to — I think you’re just — you don’t like my — where I’m coming from, and so you might not have an answer to this.

But — but in my mind, I see a line, and that line is dividing what I think of as the Confrontation Clause, Sir Walter Raleigh situation, which I have in my mind as people going into a room and saying, “now write out your testimony”, and they write it out in the form of an affidavit, or they send in a letter, and they say “bye”, and then they walk next door to the trial and introduce it.

I mean, that’s Walter Raleigh, in my mind.

And then on the other side of the line is an evidentiary rules that are basically in State cases run by the State.

And they sometimes let hearsay in and they sometimes don’t, and they make reliability et cetera judgments in developing their — their decision as to how hearsay exceptions will work.

Okay?

Now why don’t I like emergency to draw that?

The reason I don’t like the word emergency is I think police do lots of things other than handle emergency and develop testimony.

There is a range of things that you would describe as investigating the circumstance.

There is no danger.

There have been a string of robberies.

They go around and ask the grocery store people and everything what happened.

Now I don’t know why we should keep out evidence that say, is given in that situation by a confederate.

It turns out he was the assistant — why?

Stephen G. Breyer:

And if I don’t like that, I don’t like the emergency rule as doing the — as doing the work there, and I’m looking for something else.

Now you have my whole train of thought.

If you want to say Judge, there is nothing but the emergency rule, you are perfectly free to say it.

Antonin Scalia:

Do it.

[Laughter]

Peter Jon Van Hoek:

I — there is nothing — there is nothing but the emergency rule.

I think that when — hen the police are investigating, a reported crime and getting statements from witnesses, whether the victim or another witness–

Stephen G. Breyer:

They’re not.

They are just asking — all right.

Yes.

Go ahead.

Peter Jon Van Hoek:

–Well they are investigating.

They are seeking information in which they will do their job, which is to go try to arrest someone and see what the situation is.

And they are getting narratives of past events from witnesses.

And they’re asking on it.

And nothing about this rule prevents them from doing that.

But the admissibility — for them to be able to come into court, and they alone to come into court and say this is what this witness told me and this is what this witness told me and this is what this witness told me — and by the way, defense counsel, those witnesses are not going to be here today, and you are not going to be able to ask them what they meant by that or whether they were telling the truth.

No.

Mr. Bryant at this trial was never able to question Mr. Covington.

Stephen G. Breyer:

Yes, just — but in the past that situation you are describing arose only where there was a hearsay exception.

I would imagine most likely it would be the case of a confederate, someone who was part of the conspiracy.

So if I think if that is going to be the case, it probably will be admissible where this has bite.

Peter Jon Van Hoek:

Well–

Stephen G. Breyer:

And there be some others, excited utterances may be another.

Dying declarations are probably few and far between.

Baptismal certificates?

Peter Jon Van Hoek:

–But the line this Court drew in Crawford and Davis–

Stephen G. Breyer:

I know they did.

And what I’m saying is I’m finding that — it seems to me that line if taken literally would keep out exceptions to hearsay testimony, which have been well established in the United States for 200 years.

Baptismal certificates, statements of birth.

Peter Jon Van Hoek:

–I don’t believe–

Stephen G. Breyer:

Confederates is the one I come back to.

Peter Jon Van Hoek:

–Those examples you just gave, are not statements made during police questioning.

If we’re talking about–

Stephen G. Breyer:

Okay, okay.

I forgot.

Peter Jon Van Hoek:

–What — the difference that made in Davis is that the — the definition of testimonial is not across the board.

Antonin Scalia:

I guess it depends on what you mean, by in the past, as Justice Breyer put it.

Undoubtedly under the regime of United States v. Reynolds which was what, 25 years old — when–

Peter Jon Van Hoek:

Roberts.

Antonin Scalia:

–Roberts, I’m sorry.

Peter Jon Van Hoek:

Roberts.

Antonin Scalia:

Roberts.

Reynolds was the Mormon case — which was about 25 years old or so when Crawford was decided, yes, hearsay was your protection, and that was it.

But if by — what you had mean is in the past, Crawford examined the past and its conclusion as to what the past said is quite different from what Justice Breyer now says, although he joined Crawford.

Peter Jon Van Hoek:

Yes.

As you said, in Crawford this Court looked at that and though the protections of the hearsay rule, and the focus under the Roberts standard of whether a statement fell within a firmly established hearsay rule, was not sufficient under the Constitution, under the Confrontation Clause, to — to alleviate the fact that there — there is no cross-examination.

Stephen G. Breyer:

Many — I mean, like many cases there is language that can take us far afield from the subject matter before us.

And I will admit that I did not foresee the scope of Crawford.

So I’m really asking about that scope, and in particular, whether looking to the past or to reason, or to whatever you want, there is a good reason for keeping out the testimony of say a coconfederate, a coconspirator — where it was elicited, not with intent to introduce it into the courtroom, but it was elicited in the course of an ordinary investigation of a crime.

Peter Jon Van Hoek:

Well, I’d have to go back to my answer that the Confrontation Clause is the primary law of the country, not State hearsay objection rules.

Many of the examples — the coconspirator — the coconspirator exception is not going to be applicable in many cases because those statements aren’t made to police officers, they are made to coconspirators in the course of a conspiracy.

That is the foundational requirement.

It is not going to eliminate hearsay rules.

Statements made to private citizens; statements made in a lot of different circumstances are still going to be evaluated solely under hearsay rules, because they are not testimonial, because they are not the product of police — police questioning.

Samuel A. Alito, Jr.:

Well, I’m still trying to understand your conception of the scope of the ongoing emergency doctrine.

Would it be fair to say that your idea is that the police have to have specific evidence that there is an immediate threat of physical violence that they need to respond to, in order for the ongoing emergency doctrine to apply?

Peter Jon Van Hoek:

Yes.

They have to.

Samuel A. Alito, Jr.:

And in a case of doubt they can’t do it.

Samuel A. Alito, Jr.:

So if they don’t know whether there is an immediate threat or not an immediate threat then that doesn’t fall within that exception; that’s your idea?

Peter Jon Van Hoek:

My position is that where the witness has not provided any information to the police indicating that there is an immediate threat, either volunteered to the police or in response to questions from the police, saying is there a threat?

Where — in this case, no question is asked–

Antonin Scalia:

Well, they can always do it.

You — you don’t say they can’t do it.

Peter Jon Van Hoek:

–No, not at all.

Antonin Scalia:

They can always ask the questions.

The only issue here is not whether they can ask the questions, but whether after they ask them the answers can be introduced at trial.

Peter Jon Van Hoek:

Yes, and if the answers, no matter what questions they asked, if the answers all are a narrative of past events, then that qualifies as testimonial because it is the — the equivalent.

Samuel A. Alito, Jr.:

I thought you just said that wasn’t the test, past versus present.

Didn’t you say that about 10 minutes ago, it’s not the difference between something that is taking place and something that has taken place?

Peter Jon Van Hoek:

No.

I think my answer was that — that if the witness is declaring an emergency and telling the police that there is–

Samuel A. Alito, Jr.:

The witness has to say there is an emergency?

Peter Jon Van Hoek:

–Not in those words but — but in comparison to what — Mrs. Davis said, which is that he’s beating me up.

Samuel A. Alito, Jr.:

There is a report of shooting at a school, and the police go and they find two students lying on the ground.

One is dead and the other is severely wounded and they ask the one who is wounded did it.

“It’s John Jones”.

Now does that — is that an ongoing emergency?

Peter Jon Van Hoek:

No.

Samuel A. Alito, Jr.:

No.

Why is it not an ongoing emergency?

What would be an ongoing emergency?

Peter Jon Van Hoek:

Well, it would be — it would be — a statement from the — from the witness at that point of the police officer asking him, is John Jones here?

Is he threatening you?

Do you know where he is right now?

Do you know what he is intending to do?

And the answers are

“yes, he has a gun, he’s right over there. “

“He’s going to shoot someone else. “

Peter Jon Van Hoek:

“He said he was going to shoot someone else. “

That’s different.

Samuel A. Alito, Jr.:

That is a very specific information.

Peter Jon Van Hoek:

Because the — or the Petitioner’s position here is that the situation itself, standing alone–

Samuel A. Alito, Jr.:

What if there are three students who have been shot, four students who have been shot, but nobody says, well, I think he’s still in the building, he may have an interest in shooting some more students?

Peter Jon Van Hoek:

–Well, certainly if the police have come on the scene and multiple students have been shot.

You would think that the primary purpose, if the primary purpose, if you take that as a test.

That their primary purpose of questioning the witness is to determine whether there is an emergency, they are going to ask those questions.

Antonin Scalia:

Would they ask his name?

God, it’s really important for us to know, four students on the ground.

What’s the name of the guy that did this?

That’s not the emergency.

They would say where is he.

Samuel A. Alito, Jr.:

Of course that’s the emergency.

Because how are they going to find the person that they are looking for if they don’t know who it is.

What if he’s thrown away his gun?

Of course if they come upon him and he has the gun in his hand, then it’s not a question.

What if he has disposed of it?

They have to know who to go for.

Peter Jon Van Hoek:

And they can ask all those questions.

As Justice Scalia said, there is nothing in this Court’s opinion in Davis and nothing in my position that prevents the police.

Samuel A. Alito, Jr.:

I’m totally puzzled now as to when you think there is an ongoing emergency and when there isn’t.

Peter Jon Van Hoek:

I think there is an ongoing emergency that a statement that is non-testimonial relating to an ongoing emergency, when there is some indication from the statement made by the witness that such — that there is some immediacy.

Samuel A. Alito, Jr.:

You made by the Declarant.

It can’t be inferred from the circumstances.

Peter Jon Van Hoek:

No, I don’t think just from the circumstances.

John G. Roberts, Jr.:

Oh, sure it can.

If he says the principal did it.

It’s 10:00 in the morning, you assume the principal is at the school and he says the principal did it.

You can infer from the circumstances that he is referring to an ongoing emergency.

Peter Jon Van Hoek:

I don’t agree.

If that’s the case, any report, as Justice Scalia said previously, any report of a past crime certainly raises the potential that a subsequent crime will occur.

If that’s the case–

John G. Roberts, Jr.:

It’s quite different from saying this happened to some guy driving by or something like that.

If it says the principal did it, it’s at 10:00, it’s in the school, that suggests to me more, not that the dying student or the wounded student wanted to make sure that the principal was convicted, but there is an emergency, something is happening.

Peter Jon Van Hoek:

–Well, again, I think that if all it is that the principal shot someone before, that basically is–

Sonia Sotomayor:

You don’t think there is a danger implicated by coming onto the lawn of a school and a student is there and says the principal shot me inside.

You don’t think that that suggests an ongoing emergency?

That the principal is still inside with a gun?

Peter Jon Van Hoek:

–Well, if they ask those questions and the principal is still inside and there is an indication.

John G. Roberts, Jr.:

Oh, no, no.

You don’t want them to have to go through, you know, a whole list of questions while the students there dying and the principal is inside the building shooting people?

Sonia Sotomayor:

Did he shoot you because he had a grudge against you or did he just shoot you blindly and he says he shot me?

Peter Jon Van Hoek:

I’m not taking the position that they have to go through a whole list of questions before they can do anything.

If you go to a situation and a student says the principal shot someone, certainly nothing about the Davis rule stops them from immediately running into the school and determining if there is a situation there.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Palmer, you have two minutes remaining.

Lori B. Palmer:

I would just like to reiterate that the underlying principle as this Court has said repeatedly in Crawford and in Davis is formality, and that’s what the purpose of any inquiry should be in looking at the scene whether there is an emergency or not or Declarant’s view or not, it all comes down to formality akin to a magisterial examination.

And I would also.

Sonia Sotomayor:

Let’s go to formality.

It can’t be that you arrive at a scene of a crime and everything a victim tells you is admissible.

There has to be some emergency.

That’s what we have said.

Lori B. Palmer:

Right.

Sonia Sotomayor:

Correct?

So the issue here is how do you define that dividing line between emergency and non when the police officers are just asking questions that by their nature are always going to be testimonial, because they are going to use or try to use whatever is said later.

So in discerning the primary purpose, I think your adversary is saying, you can’t go by what the police officer are asking, because they are going to be asking dual motive always.

You have to look to what the Declarant tells you.

And is he or she telling you something that suggests an emergency?

Lori B. Palmer:

Well–

Sonia Sotomayor:

That’s really the difference between the two of you, I think.

Lori B. Palmer:

–Even if, even if you take that view that it’s the Declarant’s purpose or objective view that controls, I think here it’s difficult to see how Covington’s purpose could have been to provide evidence any more than the 9-1-1 call in Davis.

I think he was in shock from a bleeding wound.

He didn’t call the police.

You know, this wasn’t even a 9-1-1 call where he sought them.

They came to him.

It’s not clear who called, but it was not him.

So even taking it from his point of view, it is difficult to see here how the purpose would have been anything other than, as he said, when is EMS coming to help me.

Antonin Scalia:

I don’t understand what you are saying.

You mean he has to intend to provide evidence that he knows will be used at trial?

I don’t think that’s the test.

Lori B. Palmer:

I don’t agree with that.

Antonin Scalia:

He is intending to accuse somebody.

Lori B. Palmer:

I think here he is intending to seek help because he has been mortally wounded.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.