Confrontation and Ongoing Emergencies: Michigan v Bryant
| Author | William E. O'Brian |
| Published date | 01 October 2011 |
| Date | 01 October 2011 |
| DOI | http://doi.org/10.1350/ijep.2011.15.4.387 |
| Subject Matter | Case Note |
CASE NOTE
CONFRONTATION AND ONGOING EMERGENCIES:MICHIGANVBRYANT
CASE NOTE
Confrontation and ongoing
emergencies: Michigan vBryant
By William E. O’Brian Jr*
Associate Professor of Law, University of Warwick
Keywords Confrontation; Hearsay; Excited utterance; Testimonial statement;
Ongoing emergency
ichigan vBryant1is the latest in a string of decisions following on from the
seminal decision in Crawford vWashington,2which interpreted the
Confrontation Clause of the Sixth Amendment to the US Constitution to
preclude the use at trial of ‘testimonial’ statements of a person who does not
testify at trial, even if the maker is unavailable, unless the defendant had a prior
opportunity to cross-examine the maker. This decision made the definition of
‘testimonial’ crucial, and in Davis vWashington3the US Supreme Court gave consid-
erable guidance on that issue, holding that statements made to the police under
circumstances indicating that the primary purpose was to meet an ongoing
emergency were not testimonial, while statements made to establish or prove past
events relevant to a prosecution were testimonial. Davis involved two consolidated
appeals—Davis itself where the evidence consisted of the tape of a call to the
emergency services while the victim’s former boyfriend was attacking her (held,
not testimonial), and Hammon, where the victim described to the police an attack
by her husband that had taken place earlier (held, testimonial).
Bryant involved a victim of a shooting who was questioned by five different police
officers for five to ten minutes after they arrived on the scene, a gas station
doi:10.1350/ijep.2011.15.4.387
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 357–360 357
M
1 131 S Ct 1143 (2011).
2 541 US 36 (2004).
3 547 US 813 (2006).
* Email: w.obrian@warwick.ac.uk.
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