innocence clinic at the university of michigan law school like to introduce laura connelly who's been approved to argue this case may proceed may please that witness chavez johnson was standing next to the victim at the time of his murder and returned to the police station four days after the fact in order to identify the perpetrator via composite sketch the michigan courts approved the admission of that sketch based on an unreasonable interpretation of the u s supreme court's ongoing emergency doctrine from davis versus washington the admission of the sketch violated mr ward's essential constitutional right to confront the witnesses against him the sketch was critical because the prosecutor herself stated that it was an independent eyewitness identification upon which the jury could rely this case involves a simple application of crawford versus washington crawford states that the confrontation clause applies to witnesses against the accused in other words those who bear testimony the sketches undoubtedly testimony mr johnson returned to the police station in order to identify the perpetrator of the homicide and the most fundamental piece of evidence in a homicide prosecution is the identity of the murderer well but when you say it's it's just a that isn't the emergency exception clearly it's also an identification but which is the major purpose suppose the media i take it from what you were saying is that if the script was made on the spot or three hours later it would be ok but because it's four days later that's what makes it bad certainly around at the time is certainly a factor in all of this but we also have to look at the circumstances that surround the creation of the sketch and that's where the ongoing emergency exception comes in and then davis and him in the court gave four factors in determining whether statements are made in response to an ongoing emergency and in this case the four factors all support mr woods primarily of which is that mr johns was talking about events in the past versus as they happened here he returned to the police station to speak about a murder that happened four days earlier i mean isn't anything of these ongoing emergencies the identification is of something in the past when the guy had a case where the woman says that the man had beaten her and she's on her porch and then she says there he is again but it's because she is identifying suppose suppose the rather than going to a sketch artist the person had made a sketch himself on the spot would that still be testimonial no your honor depending on the circumstances if at the time he the police arrived at the gas station and asked him what the perpetrator looked like he drew out a sketch of that perpetrator that would be a very different case but here we have heard suppose he same person made the sketch but four days later he reads in the paper that the guy still at large is my gosh i've seen him and he draws a sketch that now illegal because unconstitutional because it's a passage of time of moving three hours because we sort of know three hours can be ok or the later bryant case where is that line going to be and why is that on reasonable interpretation you see part of the difference of course is we're here on air but in the supreme court has turned the six circuit repeatedly the dead really matters and so maybe four days is too much but but nobody's told us so explicitly have sort of specifically as i have the quote here they kind of slapped down the court saying that we didn't establish a specific limit for the context dependent certainly and that's why it's so important for them where the supreme president ever said that interviews in the station house constitute an ongoing emergency they've never extended young going emergency doctor into the tell you exactly the problem i have seen you have this is this case or this couple of cases over here in this case a couple of cases over here where this is not an emergency and this is an emergency in him it looks real much closer to this one ok a lot closer to it's not an emergency looks real close to not an emergency but you don't have anything that says it's not an emergency so what sprain court in the future could say an emergency is anything until a person is caught and not be overturning any of its previous cases c shouldn't do it but they could do it and say you know this emergency means until he's caught certainly but that would under that would undermine the entire confrontation clause jurisprudence as we as i am a case has argued that would undermine admit of a substantial weakening of the overall doctor but not necessarily a weakening of their previous case because their previous case only went so far so it only it only went so far but when the supreme court created this ongoing emergency doctor and it was considered somewhat of an exception and it should be ruled in that but by the supreme court in creating it there is a class of statements that would be considered testimonial that are non testimonial because they're made in response to an ongoing emerge isn't that where the  highly context dependent there's sort of we're running this not to just be limited to the past races limited to let's talk about context here because this isn't a cold case obviously the amakosa in your position you know once just a fear that you'll be able to bring in things way down the road but this is really a recording of something that was very contemporaneous right i mean he believed according to his statement he saw all the person at the top and you seemed to say that the sketch had been done on the spot or fairly close there would be nothing was wrong with that but that's the same your honor as if statements were made on the scene such as in bryant those are non testimonial but statements that are made about four days later at a station house are considered testimony oh well that's no they're describing pristinely so i mean let's just suppose that the statement was made but nobody heard it but it got recorded and four days later you find the recording yes your honor but that is in response we have to consider what the ongoing emergency exception is about and in bryant the court was very cursory is on the loose right it certainly but they knew that this was a targeted drug killing the facts of the case when mr johnson went to the station house on the night of the murder suggest that he told the police there was one of two men they were arguing with earlier in the day and they knew that this was over drug turf and it was much more similar to a domestic violence attack that we've seen in davis in hammond than the d c sniper situation where there's a person on the lives thing if it were a terrorist or that's a very type of ongoing of person that you think might strike again that would be more plausible it's a very different situation and that is why the ongoing emergency exception is so context and that's the that's the sort of plausible but are there any cases let alone supreme court cases where they've actually drawn that distinction well the ongoing emergency exception that was drawn in davis and hammond which is what the but that's just a statement of what i'm saying direct that we had any cases of any sort let alone supreme court cases that have tried to grapple with this you know what's the nature of the emergency how dangerous is the murder as opposed to some other murder no your honor and i don't have any to provide for you but it that essence of an ongoing emergency exception is that you're looking at the of the case and looking to whether there is in fact an ongoing emergency and whether the declarant believes there's an ongoing emergency when he is making the statement and here i'm going emergency exception or is constitutionally questionable absolutely not it's certainly there's a basis for the people to testify who can't become cross examined so certainly yes the constitution does a while if you read the confrontation clause that way you could see it as against the constitution we know whether it's a small exception or a big exception because on the basis of davis and hammond when you have two cases that are so similar and they're we're talking about events that are happening sine simultaneously which the court considers testimonial and then about the ones where they said there was an emergency doctrine which is larger presumably than the actual facts of the case but we don't know how much larger when we know from play know that there's a limit out at the end of something that davis and hammond but we would argue is not even close to between davis and hammond we would argue that this is a purely crawford case because this is a station house interview with the police which is precisely what crawford says the confrontation clause although you thought you doctrine of the ongoing emergency exception here and i think that first i'm going to start by addressing judge rogers your question about what sort of the constitutional basis of that exception is and i think the better way to understand it is as an inquiry into whether or not the statements made are testimonial and i think there is a seems to be a misunderstanding or at least a difference in understanding not testimonial statements are not hearsay so that's where the exception comes from and i don't think that the ongoing emergency exception can be read to say while an emergency is ongoing whatever that may be four days a year until the suspect is caught that any information the police get in that time is no testimonial and outside the scope of the confrontation clause i think that's a too extreme argument now you may be right in suggesting that until the supreme court says otherwise we can rely on that argument i don't think we maybe we win that argument but i don't think we need that extreme argument i think what we can say is that while the emergency is ongoing and the information the police get that is relevant to the primary purpose of which is to deal with that ongoing emergency that's not testimony that falls outside the confrontation clause and that's what we purpose of the information they received it's not just the circumstance under which they got the information but the information itself was not directed was not gotten for the purpose of resolving any emergency of the information was here's what he did to me he pushed me into the i don't remember the exact he pushed me into furnace or something like that argument just devoured the distinction that the supreme court trying to make between testimonial and non testimony because under they had i know you're saying you don't have to go to the full exchange but under that if the the key inquiry as the supreme court has repeatedly said in cases post davis is the primary purpose of the evidence that's created and the primary purpose here is to apprehend a killer that's at large i think williams versus illinois  if the primary purpose is to apprehend and kill or that is at large then as long as that killer is at large and you are providing some for me it would help to find that person if it's a year that's ok there's an ongoing emergency and that defines testimonial versus non testimonial that seems to me to the rule ok i understand your honor but i don't think it does because again the primary purpose what is the primary purpose in all of these cases recognise that the police service sort of different functions and that the police serve a function of trying to keep the community safe and one of those ways is by apprehending criminals who are at large another purpose the police service to investigate crimes for prosecution and you have to look at the information and what purpose that was serving in distinction that you're opposing him so makes between location of where the statement is taken make a difference as to whether you intend to use it for prosecution in every one of these davis hammon bryant we're looking at something that occurred on site show even bryant was the shooting victim but he made the statement as he was dying so every one of those is in the field will write it to the perpetrators action at issues and now you have someone who says come on by the police office sit down with our our interrogat and give them some information in this formal setting why isn't there a better distinction than whether the perpetrator is still at large because that is only a factor that goes to the ultimate question which is the primary purpose the supreme court as a primary purpose so well you can you have to look at the facts to try to figure out what the primary purposes and yes in some cases the fact of where this happens will govern the primary purpose but if that if the police come to the scene at the scene and the victim says here's what he did to me right the primary purpose there is not to apprehend somebody at large right and so the problem for me is if you if you analyze it that way then you hold the trump card and the trump card is we have not yet apprehended this perpetrator and any time you want to get a statement and use it and make the testimony over his non testimonial distinction you just lay down your trump card and you say twenty year still out there and we're going after him so how is there any way will basis on which to draw a line on how long you and if you look at the record out was there would not our primary purpose is to apprehend the perpetrator but you don't have to that's reviewable you don't have to take the officer and give complete deference to what the officer says if the officer says well when i asked the victim to give all the details of what he did that was in service of trying to apprehend them the court's allowed to say well that doesn't make sense and it is that helpful distinction would you say could be employed to make that distinction if a perpetrator has been a out one day versus a perpetrator who's been at six months versus one who's been at a year two years three years i don't i'm not saying a principled way to make that distinction i understand and i don't think that it's this court as a heaviest court i don't think that it's this court's job to draw temporal line as far as women as i think a good place to draw the line is when the active and they get investigation ceases when the police sort of throw up their hands after maybe it's a week maybe it's a month and they say it's a year maybe it's a year and they say  we're done with this will put it in the cold case file maybe we'll look at it later when we when we have it which isn't the real issue here not what we would do on on on on direct appeal but was the state court on reasonable you're saying that the supreme court has not clearly establish a rule that either there were days is too much even if you counted as four days or your every series proposed rule that if you read the station house you lose that might be a good rule but it's hard to say that it's clearly established by the supreme court so in one sense you don't you don't have to draw the line for us you just have to say a bad law hasn't been clearly established correct that's committing this emergency identity theft for instance and we can only can only interrogate people and then have their stuff be admitted if they're later on available in order to solve a crime like that  they're gathering is an apprehension to keep the person from doing it again or is it whether the crime is solved or to keep the person to keep to protect the public to keep not just something to do the same thing again but to do something really sure  life that's what makes it an emergency you know about hangnail it's not an emergency if i'm bleeding it's an emergency even though they're both on my hands that's why when the police and the felony you're going to call him an emergency call well sure but again i we're not saying that the emergency is a blanket that lets everything in we're seeing an emergency makes non testimonial information that's received that is in service of solving that emergency that that's where the police arrest them when when we find them they don't say well  we found the murderer and now here's your court date you have a today right the bring the men right because a murder has that large of a we recognize this is a dangerous person and if that is the law in this case indistinguishable from i mean i'm  wondering whether there's something special about a sketch i mean everything that both sides are saying i assume would be the same if instead of a sketch you just had testimony that the person was cross eyed and had a mustache there just  drawing involved it's just here here is some evidence of who did it the person who did it but there's not a mustache and a beard and there's cross eyed brains i don't think there's anything special about a sketch i think what in both cases are you want to know whether the perpetrator was cross eyed exactly what's the primary purpose for generating this evidence and the think the fact is the police don't generate sketches to use a trial and i think that i think that's a key fact that i think pretty much thinks this case for the petition  he right you might then want to get an if well they've got johnson there and they say well describe what you've seen him describe what else you know do you know this about harris do you know this about woods that's not in service of of solving this emergency right so that's the thing you don't get to say well because there was an emergency everything johnson said at the time comes in you say because there's an emergency everything that johnson said that was to help the police protect the public by solving this emergency is non testimony in the sketch was not introduced at trial as  sure i think it i think it makes a difference as to prejudice i think as long as the jury heard that and was able to assess her credibility accordingly as long as the jury knew what the right order was which it did it whatever whatever the case was a jury didn't know about the  report about taylor was was within twenty four hours of the shooting so that would mean she couldn't have been shown i said michael at least my my read my record cite here i don't have the quote but was that that that taylor had talked to the police less than a day after the shooting and and would have terrible i thought so but i can read the record i'm sorry perhaps either one of them can i thought th had i thought that she identified it before she was shown the photo because she knew for this was not a stranger to her this was someone that she knew and so and so she recognized him and i don't think that part of part of the issue is the ability to place this in the record when the person who gave him the information on the skit is deceased and the implication is left to the jury that the defendant dispatched the person who would have testified against him they did that's the essence of why a confrontation calls matters isn't it the essence of why the confrontation clause matters because you're because you are admitting statements or sketches or whatever else it is and no one has the opportunity to ask the person who made the statement or a suggested have a skit should be no one is able to call them into question to to challenge their credibility so if the jury says you know what i don't believe that guy right that's gone you're able to admit that i have it that's true but there are emergency i mean under the argument but again the supreme court has rejected these arguments about the supreme court has said the confrontation clause means what it means and we have i mean there's a kind of a one point to your point your honor which is that here where we have no reason for johnson to fabricate the sketch because he didn't know the defendant there's no reason to doubt it that doesn't govern the confrontation clause question we can't come in here and say well this is testimonial but it's very very reliable and so when the supreme court's rejected that and the same and i thing but that's just the mirror image of your argument to say well what we would really like the defendant to be able to look at johnson's credibility no up both but all of those arguments are off the table the question is was this testimonial and was it hearsay and because it wasn't testimonial over the competing policy arguments or on a few common policy engines but the computing arguments that you've made and that i've just said are really off the table it's really just a matter of whether it was testimonial and it wasn't and even if it was the supreme court has never categorically said it was and of the michigan state court was reasonable and my time is up i'd be glad to answer any other questions i don't think there may be i'd like to begin by just pointing out the fact that chavez johnson as you were pointing out this is precisely the evil that the confrontation clause is meant to protect against and that is because chavez johnson made exculpatory statements regarding mr woods after at the scene of the crime saying that was one of two men who argued with them earlier in the day and it's undisputed based on this record and by everyone that mr woods was not one of those two men so the fact that an eyewitness identification came and looked like mr woods and yet the jury never heard the scope of jury statements that is precisely the problem that we have here and that's precisely why the confrontation clause violation is so egregious here but beyond that just moving to bryant briefly bryant that's a huge he's hugely distinguish this case because bryant is about a dying victim lang on the ground within blocks and minutes of the scene of the crime when police arrived they had no idea if the shooter was in the vicinity what was going on and furthermore brian is rooted in this excited utterance dying declaration hearsay exception and here we don't have those same assurances of reliability when he thinks that informs the supreme court's decision it certainly did and that cited in the supreme court suggest that it might inform the supreme court's decision later when it's siding case like this certainly in system with its presidency could say well you know we're familiar with all that dying declaration policy and some of that suggests that when you have someone like this who died but did something fairly persuasive before he there's a very big distinction in a dying declaration hearsay exception and that is that the victim is dying at the time he makes those statements here we have a person who came into the police station after being considered a suspect in this murder and comes back to the police station to identify a murder that is vastly different than someone who's lange on the ground including the victim and brian who's laying on the ground saying i know who shot b because he's dying and you haven't given that statement to bryant why did the supreme court go to the trouble of sort of chastising the michigan supreme court for apparently libertine the date of a limit in the doctrine to the outer bands of davis it sounds like bryant would be well within davis not even a little bit beyond david certainly and i think that's because the michigan supreme court was focused on time when they were making their decision in brian and that's not what the focus should be when we're looking at whether there's an ongoing emergency certainly time is a factor but it's so so i guess i heard you say that that in bryant it was within minutes but you're saying it was longer in bryant i believe it they extended it about two hours and  brian which is in fact the furthest that the supreme court has ever gone in extending the ongoing emergency exception and that extension i'd like to point out is made for members of the court extremely uncomfortable and they are very upset including justice  and he wasn't in the majority i'm sorry did you have a question no option to answer the question about whether whether sketch was shown to taylor before also very important to note that she had the most basic pieces of the id while she said ferdinand she was saying that the shooter had braided hair and she didn't i don't that we don't but i think the reason the reason that the order is of some importance is as to whether the sketch was  point was that it was really it would be even more important if it had been shown to her before yes but given that she was so discredited so thoroughly discredited at trial in the served as an independent eyewitness identification this is certainly