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. Gratitude, awe, and relief typically are not shown for merely doing the right thing and that which you are duty-bound to do. Only intrepidity deserves those responses. That they all exist here tells me quite a bit more about Scalia and our preception of him than the technical workings of his opinion.

  2. Justice Scalia is calling the pot calling the kettle black when he chides the majority in this decision. Milsapian and Jill already hit the nail on the head asking where Scalia was on Bush v. Gore and countless detainee actions. Unlike Prof. Turley, I cannot separate Scalia’s off the court dealings from his occasional blip of sanity.

  3. If only he would turn this analytical mind on his own prejudices and biases…

  4. I read J. Ginsburg’s dissent and, to me, it appears she chose to agree wiht J. Scalia, and then merely added an observation.

  5. Upper1


    I note there were two dissenters. I’ll choose to agree with Justice Ginsburg.

  6. I don’t always agree with J. Scalia, but when I do his opinions are always a treat to read. As Upper1 said, his best ones are usually in the fourth or fifth amendment arena.

  7. Scalia supports individual rights? In what universe?

    This is a man who supports the corporation over the individual almost without exception. Oh, unless you are going with the corporation-as-person argument, in which case, yes, perhaps you are right.

    If I’m not mistaken, Scalia is the one who said it would be OK to execute a convicted person, even if they were innocent. Also has voted against every effort to allow more DNA testing, etc. etc. etc.

  8. @rcampbell,

    I suspect the SCOTUS merely upheld the lower court’s decision. In this case, the lower court is likely the Michigan Supreme Court. Given Scalia’s dissent, it appears the SCOTUS is breaking with it’s own precedent on similar matters. Or, at the very least, that’s what Scalia believes…

  9. Come on down to Wacky Tony’s! Today only! My staff tried to restrain me but I’m loose!!! I’ll deal! Reverse my opinions? Sure, I got reversals!!! One day only! (*Offer good only for this decision. Some restrictions apply.)

  10. While I absolutely abhor Scalia’s opinions on most topics, and feel he has contradicted himself many many times in many of his opinions, I think it’s fair to say he has been consistent, and typically defends Fourth and Fifth Amendment rights with the vigor I expect from an honest intellectual. With that said, I still believe him to be without a moral compass (i.e. he has demonstrated a personal agenda in too many cases before the court), and is thus unfit to sit on the high court. It’s kinda hard to take him seriously when he’s used his indignity to forward the notion that the Supreme Court should have gotten involved in a state issue as in Bush v. Gore, that a 1943 Webster’s Dictionary (and not the Army Corps of Engineers) should define “wetlands,” and more untenable positions…

  11. In Prof. Turley’s headline it states the court upheld the use of dying statements as “non-testimonial” evidence. Is the key word here “upheld”? Has this been established precedent covered by previous SCOTUS or other court findings?

  12. Maybe I don’t pay enough attention, but I don’t see how J. Scalia’s dissent can be considered much of a surprise. As a casual observer, to me it appears that his opinions/dissents in criminal matters often support individual rights.

  13. I share everyone else’s shock. I’m used to Scalia coming down on the side of whatever is both expedient and suits his nakedly obvious partisan agenda, so this – a well thought out, judicious, sane opinion – is a shocker.

    Maybe he has figured out that if he doesn’t start doing his job and staying out of politics, he’s going to take one step too far and end up with the baleful and inquisitive eye of public scrutiny on both his life and his finances, as has happened to his BFF, Justice Thomas.

  14. HOLD ON! Antonin “Fat Tony” Scalia comes down on the side of justice and against the police? Was it opposite day at the Court? Next thing you know Clarabelle will actually a question of Counselors.

  15. Even a broken clock is right twice a day.

    And what Jill and miilsapian87 said.

  16. I like this guy Scalia! Where was he during the Bush v. Gore decision, another bit of judicial mischief if there ever was one? His clear-eyed opinion would have been useful then….oh.

  17. I think Scalia makes a sound argument here, one that would absolutely demolish his prior arguments in favor of keeping our detainees from a fair trial and being unable to confront their accusers for reasons of “state secrets”. “State secrets” have as much validity as Sotomayor’s argument.

  18. The time to rescue would have been Thomas in Citizen…. They generally do this when the have in essence knowledge of the facts or an interest….

  19. “Justice Kagan did not participate in the decision in Michigan v. Bryant.”

    I have noticed this happens more than it should,being A layman am I seeing it wrong?

  20. Wow and I agree with Scalia on this one…. I hope the day gets better….

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