OPINION OF THE COURT MICHIGAN V. BRYANT 562 U. S. ____ (2011) 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 Confrontation 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 and
description of the shooter and the location of the shooting were
not testimonial statements, and their admission 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. Covington
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 Crawford , 541 U.
S. 36 , and Davis , 547
U. S. 813 , the police officers who spoke with Covington at the
gas station testified about what Covington had told them. The jury
returned a guilty verdict on charges of second-degree murder, being
a felon in possession of a firearm, and possession 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 affirmed, 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 inadmissible. The State, on the other hand, argued
that the statements 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 therefore 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 concluded 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
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 perceived 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
prejudicial 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.[ Footnote 1 ] 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 nontestimonial statements in Davis than to the
testimonial statements in Crawford . 483 Mich., at 164, 768
N. W. 2d, at 82. We granted certiorari to determine
whether the Confrontation Clause barred admission of Covington’s
statements. 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.’ ” 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 “particularized 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 privilege 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 affirmed Crawford’s conviction because it
found Sylvia’s statement to be reliable, as required under Ohio v. Roberts. 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
accused.” 541 U. S., at 50. We noted that in England, pretrial
examinations of suspects and witnesses by government officials
“were sometimes read in court in lieu of live testimony.” Id. , at 43. In light of this history, we emphasized the
word “witnesses” in the Sixth Amendment, defining 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 establishing or proving some fact.’ ”
541 U. S., at 51 (quoting Webster). We noted that “[a]n accuser who
makes a formal statement to government officers bears testimony in
a 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 admissible, the Sixth Amendment “demands
what the common 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
definition 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
questioning 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 “determine 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
testimonial.” 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 law enforcement officers,” Crawford , 541 U. S., at 53, are subject to the
Confrontation Clause.[ Footnote
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 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 emergency. We explained: “Statements are nontestimonial when
made in the course of police interrogation under circumstances
objectively 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 purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.” 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 statements in Davis from the testimonial
statements in Crawford on several grounds, including that
the victim in Davis was “speaking about events as they
were actually happening , 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
interrogation 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 information 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 classification of all conceivable
statements—or even all conceivable statements in response to police
interrogation—as either testimonial or nontestimonial.” Id. , at 822.[ Footnote
3 ] The 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.[ Footnote 4 ] See id. , at 43–44.
Even where such an interrogation 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
formal 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 opportunity 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
emergencies, 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 statements as reliable, will be
relevant. Where no such primary purpose exists, the admissibility
of a statement is the concern of state and federal rules of
evidence, not the Confrontation Clause.[ Footnote 5 ] Deciding this case also requires
further explanation of the “ongoing emergency” circumstance
addressed in Davis . Because Davis and Hammon arose in the domestic violence 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 objectively evaluate the circumstances in which
the encounter occurs and the statements and actions of the
parties. A The Michigan Supreme
Court correctly understood that this inquiry is objective.[ Footnote 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 testimonial statements”). “Objectively” also appears in
the definitions of both testimonial and nontestimonial statements
that Davis established. Id. , at 822. An objective analysis of the
circumstances of an encounter 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 objectively 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 reasonable participants would have had, as ascertained
from the individuals’ statements and actions and the circumstances
in which the encounter occurred.[ Footnote 7 ] B As our recent
Confrontation Clause cases have explained, 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 existence 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.”[ Footnote 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 significantly 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 utterance 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 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 confabulation . . .
”); 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.[ Footnote
9 ] Following our precedents, the
court below correctly began its analysis with the circumstances in
which Covington interacted with the police. 483 Mich., at 143, 768
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 emergency.’ ” 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 deciding 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 statements during the 911 call; we
therefore merely assumed the correctness of the Washington
Supreme Court’s holding 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
inquiry. 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 violence 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 involving threats to public safety. An
assessment of whether an emergency that threatens the police and
public 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 reasoning 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. 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 statements.” 547 U. S., at
828 (internal quotation marks omitted). 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 perpetrator 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,[ Footnote 10 ] and exclude “the portions of any statement
that have become testimonial, as they do, for example, with unduly
prejudicial portions of otherwise admissible evidence.” Id. , at 829. Finally, our discussion of the
Michigan Supreme Court’s misunderstanding of what Davis meant by “ongoing emergency” should not be taken to imply that the
existence vel non of an ongoing emergency is dispositive
of the testimonial 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 explain
further below, the questioning in this case occurred 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 primary purpose of the interrogation. See, e.g. , Davis , 547 U. S., at 827 (“[T]he nature of
what was asked and answered 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.[ Footnote 11 ]
In many instances, the primary purpose of the interrogation will be
most accurately ascertained 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. Predominant 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 [deciding whether to give Miranda warnings in a possible emergency situation] would
act out of a host of different, instinctive, 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 otherwise,
the purposes of an interrogation, viewed from the perspective of
the police, are both to respond to the emergency situation and to gather evidence”). Victims are also likely to have
mixed motives when they make statements to the police. During an
ongoing emergency, a victim is most likely to want the threat to
her and to other potential victims to end, but that does not
necessarily 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 understand whether her statements are for the purpose of
addressing an ongoing emergency or for the purpose of future
prosecution.[ Footnote 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 opinion. At trial,
the declarant’s statements, not the interrogator’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. 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 illuminate 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 unwilling 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 statements 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 purpose 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 testimonial because statements made to
assist police in addressing an ongoing emergency presumably lack
the testimonial purpose that would subject them to the requirement
of confrontation.[ Footnote
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 interrogation 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
ongoing 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 others.” 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 perpetrator 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
primary purpose of establishing those facts to assess the situation
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.”[ Footnote 14 ] 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 involved. 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 testified that Covington did not
tell them what words Covington and Rick had exchanged prior to the
shooting.[ Footnote 15 ] What
Covington did tell the officers was that he fled Bryant’s back
porch, indicating that he perceived an ongoing threat.[ Footnote 16 ] The police did not
know, and Covington did not tell them, whether the threat was
limited to him. The 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 implausibility, 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.[ Footnote 17 ] 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
Covington’s encounter with the police and all of the statements 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 “primary 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
described. The circumstances of the encounter provide important
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?”[ Footnote 18 ] Covington’s response was either “Rick shot
me” or “I was shot,” followed very quickly by an identification of
“Rick” 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 answers to the police officers’ questions were
punctuated with questions about when emergency medical services
would arrive. Id. , at 56–57 (suppression hearing testimony
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 (testimony
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 “primary purpose” “to
establish or prove past events potentially 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.[ Footnote 19 ] 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 encountering a violent felon,”[ Footnote 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
statements.” 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 Crawford . 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 dissent’s
portrayal, post , at 7–9 (opinion of Scalia, J.), they did
not conduct a structured interrogation. App. 84 (testimony of
Officer McCallister) (explaining duplicate questioning, 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
interrogation” 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 location 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 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 permitted 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. Footnote 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 admissible 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 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). Footnote 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 qualifications; nor do we do so here. Footnote 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. 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
substantive evidence upon which a conviction could be
based”). Footnote 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
“unquestionably infamous,” ibid. , and our decision here
confirms, rather than undermines, that assessment. See also
n. 17, infra . For all of the reasons discussed in
Justice Thomas’ opinion concurring in the judgment, the situation
presented in this case is nothing like the circumstances presented
by Sir Walter Raleigh’s trial. See post , p. __. Footnote 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 constitutional
provision must fairly be said to mark out not merely its ‘core,’
but its perimeter”). See also post , at 2 (Scalia, J.,
dissenting). Footnote 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 understand the
dissent to disagree that the inquiry is objective. Footnote 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 reasonableness
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 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). Footnote 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. Footnote 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 Religious 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”); Crawford , 541 U. S., at 56 (“Most of the hearsay
exceptions covered statements that by their nature were not
testimonial—for example, business records or statements in
furtherance of a conspiracy”). Footnote
10 Recognizing the evolutionary
potential of a situation in criminal law is not unique to the
Confrontation Clause context. We noted in 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 purposes, statements in response to interrogations
become testimonial.” 547 U. S., at 829 (quoting New York v. Quarles , 467 U. S., at 658–659). Footnote
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 purpose 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 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 interrogator’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
questions, that must be evaluated under the Sixth
Amendment. Footnote
12 In such a situation, the severe
injuries of the victim would undoubtedly 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))). Footnote
13 Of course the Confrontation
Clause is not the only bar to admissibility 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
combination, 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” is the “standard” by which to “test federal and state rules of
evidence”). Footnote
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 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). Footnote
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). Footnote
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 knocking 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 conversation
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
conversation 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. Footnote
17 It hardly bears mention that the
emergency situation in this case is readily distinguishable from
the “treasonous conspiracies of unknown scope, aimed at killing or
overthrowing the king,” post , at 11, about which Justice
Scalia’s dissent is quite concerned. Footnote
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)). Footnote
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 concerned 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? A Correct. Q For your safety as well as everyone
else? A Correct” (paragraph breaks omitted)); id. , at 82
(testimony of Officer McCallister). 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)). Footnote
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 threatened by the assailant. 542 U. S., at 186 (noting
that the case involved a “domestic assault”). 562 U. S. ____ (2011) MICHIGAN V. BRYANT 562 U. S. ____ (2011) 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 solemnity 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 analysiswhich 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 conditionillustrates the uncertainty 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 dissenting 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 practices
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 circumstances, 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 historical
practices that the Confrontation Clause aimed to eliminate.
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. SCALIA, J., DISSENTING MICHIGAN V. BRYANT 562 U. S. ____ (2011) 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 conclusion 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
Amendment, Pointer v. Texas , 380 U. S. 400 , 403
(1965), provides that “[i]n all criminal prosecutions, the accused
shall enjoy 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 person, 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 Language (1828)). The Confrontation Clause protects
defendants 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 indicate … 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 information 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]
interrogation.” In those cases the statements were testimonial from
any perspective. I think the same is true here, but because the
Court picks a perspective so will I: The declarant’s intent is what
counts. In-court testimony is more 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.[ Footnote 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 interrogator 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
Confrontation Clause. The Clause applies to volunteered testimony
as well as statements solicited through police interrogation. 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 content and tenor of his questions, can bear upon whether a
declarant intends to make a solemn statement, and envisions 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 emergency 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 arrested, 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 perceive 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 the purposes of both the declarant and the police: It
“ameliorates 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 because it does not have
one.

															   The only virtue of the Court’s approach (if it
can be misnamned 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
perspectives to reach its desired outcome. Unfortunately, under
this malleable approach “the guarantee of confrontation 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 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 station was unable to confront him there before the
police arrived (doubly unlikely), it was entirely beyond
imagination that Bryant would again open fire while Covington was
surrounded by five armed police officers. And Covington 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 not have
the luxuries of police protection and of time and space separating
her from immediate danger that Covington 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 superficially to assess the severity
of his wounds, or attempted to administer first aid.[ Footnote 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 understood 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 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. Preventing the 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 decisions in Crawford and in Hammon v. Indiana , decided with Davis . Ex parte examinations raise the same constitutional
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.[ Footnote 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
presence 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.

															   At the very least, the officers’ intentions turned investigative during their 10-minute encounter with
Covington, and the conversation “evolve[d] into testimonial
statements.” 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 assistance,” 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 suggests the five
officers in this case shared the Court’s dystopian[ Footnote 4 ] 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,[ Footnote 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 exception to the Confrontation Clause for
violent crimes. Because 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 unclear 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 accounts 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 plausible) 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 example, King v. Brasier , 1 Leach 199, 200, 168 Eng. Rep. 202, 202–203
(K. B. 1779), held inadmissible a mother’s account 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 ongoing
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 intervention
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 conducted 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
Lawyers 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 History 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 opportunity 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 statements, 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 Confrontation Clause jurisprudence, at least where emergencies
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 declarant’s statements, “[i]mplicit[ly]”
importing the excited-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:
confrontation.” 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 Crawford 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 statement 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 adequate ‘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 , 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 indicator of whether “a statement is … an out-of-court
substitute for trial testimony.” Ante , at 11. That is
patently false. Reliability tells us nothing about whether
a statement 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
“misunderstands the relationship” between qualification for one of
the standard hearsay exceptions and exemption from the
confrontation requirement. Melendez-Diaz v. Massachusetts , 557 U. S. ___, ___ (2009) (slip op., at
18). That relationship is not a causal one. Hearsay law exempts
business 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 administration of an entity’s affairs and not for the
purpose of establishing 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
exemption from confrontation and that of the hearsay exceptions
also are not always coextensive. The reliability logic of the
business-record exception would extend to records maintained 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
following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly
overruling Crawford? After all, honestly overruling Crawford 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,” inquiries 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 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 Crawford , 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 consideration 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 understand 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 dangerous branch can be trusted to
assess the reliability of uncross-examined testimony in politically
charged trials or trials implicating threats to national security.
See Crawford , supra , at 67–68; cf. Hamdi v. Rumsfeld , 542 U. S. 507 , 576–578
(2004) (Scalia, J., dissenting).

															*  *  * Judicial decisions,
like the Constitution itself, are nothing 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 procedures that our Constitution
requires. And what has been taken away from him has been taken away
from us all. Footnote 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). Footnote 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. Footnote 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 immediately went to Covington. See id., at
17–18. The testimony of Brown and McCallister corroborate that
account. See id., at 34–36, 79–82. Footnote 4 The opposite of utopian. The word
was coined by John Stuart Mill as a caustic description of British
policy. See 190 Hansard’s Parliamentary Debates, Third Series 1517
(3d Ser. 1868); 5 Oxford English Dictionary 13 (2d ed.
1989). Footnote 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). 562 U. S. ____ (2011) MICHIGAN V. BRYANT 562 U. S. ____ (2011) 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 statements 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 requirement: 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 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.

Summary: The Supreme Court held that a victim's statements to police identifying his shooter were not testimonial and were therefore admissible at trial, as the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency.