Supreme Court Upholds Use of Dying Statements as “Non-Testimonial” Evidence

The Supreme Court has ruled that a mortally wounded man’s dying statement is “non-testimonial” and can be used to convict a man of murder. The ruling, written by Justice Sonia Sotomayor raised serious concerns under the confrontation clause of the Constitution. Notably, the strongest voice against the ruling came from Justice Antonin Scalia. Justice Kagan did not participate in the decision in Michigan v. Bryant.

By treating the dying man’s words as non-testimonial, the justices allowed them to be admitted into evidence despite the fact that the accused could not confront the witness. In a 6-2 decision, the members ruled that the words of Anthony Covington could be used against Richard “Rick” Bryant in his murder trial –stemming from a shooting at a gas station in April 2001 in Detroit. Police questioned Covington at the scene and he implicated Bryant. He later died at the hospital.
Sotomayor ruled that the police questions “were the exact type of questions necessary to allow police to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Thus, the police “did not conduct a structured interrogation.”

Justice Ruth Bader Ginsburg dissented and noted that the Court did not have to resolve this question since it was never raised in the original appeal. The strongest language, however, came from Scalia who condemned the majority decision as nothing short of “judicial mischief.” Scalia wrote:

“Today’s tale — a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose — is so transparently false that professing to believe it demeans this institution . . . 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.”

Scalia is particularly effective in demolishing Sotomayor’s claims of the purpose of the questioning:

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 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.

The Court has been repeatedly accused of adopting such opportunistic views of the facts in outcome-determinative analysis. Scalia adds the following:

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 suggests the five officers in this case shared the Court’s dystopian4 view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers 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 investigation into a past crime with no ongoing or immediate consequences.

I agree with Scalia who notes:

Neither Covington’s statements nor the colloquy between 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.

While I have been critical of Scalia’s conduct off the bench, I have always found his opinions to be interesting and provocative. He occasionally surprises the Court and the public and is not afraid to stand with principle on cases of this kind.

Scalia chastised the majority for offering a “hollow constitutional guarantee” and noted “For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.”

Here is the opinion: 09-150

Jonathan Turley

33 thoughts on “Supreme Court Upholds Use of Dying Statements as “Non-Testimonial” Evidence”

  1. Not knowing where else to put this I’m hoping Professor Turley, and others comment on a March 1 ruling by SCOTUS in FEDERAL COMMUNICATIONS COMMISSION ET AL. v. AT&T INC. ET AL. (No. 09–1279) in which the court ruled, “unanimously against AT&T’s claim that personal privacy rights prevent the federal government from disclosing agency records that might reveal corporate wrongdoing to the public.”

    A brief news report can be found here:

    A slip opinion can be downloaded here:

  2. DD,

    I did comment as to the defect that causes the state and your observation is quite correct.

  3. pete 1, March 1, 2011 at 11:47 pm

    if i get hit by a bus tomorrow i hope i live long enough to say dick chenney was driving.
    hahahahahaha! oh thank you for that much needed laff….

  4. “Even a broken clock is right twice a day.”

    No, it is broken. And therein lies the problem.

  5. Milbank: High court tries to crack cocaine case
    By Dana Milbank
    Washington Post Writers Group
    Posted: 03/02/2011 01:00:00 AM MST

    The Supreme Court is earning its reputation as the high court.

    The robed ones have deliberated over cocaine at least half a dozen times in recent years, taking up the drug in some form in each of the past four years. On Monday, the justices took another hit — and this one was particularly mind-blowing.

  6. pete
    1, March 1, 2011 at 11:47 pm
    if i get hit by a bus tomorrow i hope i live long enough to say dick chenney was driving.


    lol … I’ll record your final words

  7. if i get hit by a bus tomorrow i hope i live long enough to say dick chenney was driving.

  8. Right case ,wrong link:

    * LAW
    * MARCH 2, 2011

    AT&T Loses Privacy Ruling


    WASHINGTON—The Supreme Court ruled unanimously that personal-privacy rights don’t apply to corporations under the Freedom of Information Act.

    Tuesday’s ruling was a defeat for AT&T Inc., which had sought to block the disclosure of emails and other potentially embarrassing documents it provided to the Federal Communications Commission during a 2004 investigation by the agency of whether the telecommunications giant overbilled the New London, Conn., public schools.

  9. I guess there will really be some marking today on the calendar for
    some,regarding the AT&T decision that was handed down today where from what was just shown on PBS where Justice Scalia wrote the majority opinion on the ruling,and ended it by telling AT&T “not to take it personal”.

    The person from the Law Journal went on to explain that many people had been watching this case in light of the Citizens United ruling to see if there was going to be favoritism shown to AT&T.
    Not this time.


    Yes. In a 7-1 opinion delivered by Justice Antonin Scalia, the Court held that Communications Act’s filed-tariff requirements pre-empt Central Office Telephone, Inc.’s state-law claims. Invoking the “filed-rate” doctrine, under which the rate a carrier duly files is the only lawful charge, the Court denied Central Office’s claims of AT&T;’s failure to fulfill promised preferences not specified in its tariff filed with the FCC. “Because [Central Office Telephone, Inc.] asks for privileges not included in the tariff,” wrote Justice Scalia, “its state-law claims are barred in either case.” Justice John Paul Stevens wrote a dissenting opinion. Justice Sandra Day O’Connor took no part in the consideration or decision of the case.”

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