1 (Slip Opin i o n) OCTOBER T ERM, 20 10 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s 

### MICHIGAN v . BRY A N T CERTIORARI TO THE SUPREME COUR T OF MICHIGAN No. 09–1 50. Ar g u ed Oc tober5, 2010—Dec i ded Febr u a r y28, 2011 Michiga npolice dis p at ched t oa ga s st atio n parking lot found Anthony

Covington morta lly wounde d

. Covington told them that he ha d b een s h ot b yres p ondent Brya nt outs ide Brya nt’s hous e a n d ha d then dr iv en himself to the lot. Att r ia l, whicho ccu rred b e fore Crawford v. Washin gton , 541 U. S. 36, a n d Davisv. Washin gton , 547 U. S. 81 3, were decided, t h e officers t e s t ified ab o ut wha tCovingt o n s a id. Bry

a n twa s foun d guilt y of, inter alia, second-degree murder. Ulti

mately , the M i c h ig an Supr eme Cour t r e v e r s ed his c o nv iction, holding tha tthe S i xth Amendment’s Confronta t ion Cla u s e , as expla i ned in Crawford an d Davis, re ndered Covington’s statements inadmissi b le testi m onial he arsay. Held: Cov i ng ton’ s identific a tion and de scription of the shooter and the

location of the shooting were not te sti m oni a l statements because they had a “primar ypurpos e . . . to enabl e polic e assistance to meet an on going em er ge ncy . ” Davi s , 5 47 U. S., at 82 2. Th er efor e, th eiradmis

s i on a t Brya nt’s tria l did not viola t e the Confronta t ion Cla u s e . Pp. 5 – 32.

(a) In Crawford, this Court held thatin o r der for testi m onial evi

denc e to be ad miss ible, the Six t h Amendment “demand s . . . unav a il

abil i tyan d a pr ioroppor t un ityforc r o ss-ex amin ation

. ” 541 U. S., a t 68. Crawforddid not “spe llout a c o mpr e hensiv e definition of ‘ t es ti

monial,’ ” but it noted that testimoni a levidence includes, among otherthing s , “polic e inter r o g a tions.” Ibid

. Thus , S y lviaCra w ford’s s t atements during as t a t ion-hous e in terr og ationabou ta stab b i n g wer etestimon ial, an dth eiradm i ss ionwh enh e rhu sban d, th e ac cus e d, ha d “ n o opport unit y” for cros s - ex a m ina t ion due t os p ous a l privilege made out a Sixth Amendment violation. I n Davi s an d Hammon, bot hdomest icv i olen c ec a ses, the Cour t ex plained tha t “[s]ta tement s ar e nontestim o nial when made in the c o ur se of polic e2 MICHIGAN v. BRYANT Sy llabu s int e rroga t i on under cir c um s t a n ces obj e ct ively indica t i ng t h a t t h e [in

terrogation’s] primary purpose .

. . isto en able pol i c eass i st an c eto meet an ongoing emerge ncy,” but th ey “ar etesti m onial when the cir

c u mstanc es objec t iv elyindic a te thatthere is no such o n going emer

genc y, a n d t h a tt h e [int erroga t i on’s ] primary purpose is to establi s h or prove past events poten t ial l y releva ntt olat e r crim i na l pros ecu tion .” 54 7 U. S

. , at 8 2 2

. Thu s , arecording of a91 1 ca ll des crib i ng a n ongoing dome s t ic disturb a n ce wa s nontes timonia lin Davis, where the victim’s “elicited statements wer e n e cessar yto be able to resolv e [t he ongoing] em ergenc y,” a n d t h e state m ents were not formal. Id., at 82 7. Bu t th e statemen t s in Hammon were testimonial, where the victim was int e rviewed after the ev ent in a room se parate from her husband and “deliberately recounted, i nresponse to pol i ce question

ing” the past events. Id. , at 830. Her e , the context is a nondomestic dispute, with the “ongoing emerge ncy” extending beyo nd an initia l v i c t im to a po tential thr e at to th e responding police and the public. Th is c o n t ex t requ ir es addit i on al c l ar ific ati o nof wh at Davismeant by “the primary purpose of the interro gation is to enable police assis

tance to meet an ongoing em ergency.” Id. , at 82 2. Pp. 5–12.

(b) To make t h e “pr i mar ypur p ose” deter m ination, the Cour t must objectively evaluate the circumsta nces in which the e n counter be

tween the ind ividual andthe polic e occurs a n d t h e pa rt ies ’ s t at e men t s an d ac t i on s. Pp. 12–2 3. (1) The primary purpose inquiry is objecti v e. The circu m s ta nces in which a nencou n t e r occu rs
—e.g . , at or n e ara c r i me s c en e v e r s u s at a polic e st ati o n , dur i n gan on g o ing emergency o rafterwards—are clearly matter s of objective fact. And the relevant inquiry into the par t ies’ st ate m en ts an d ac t i on s is n o t th e su bjec tiv eorac tu al pu r p ose of the par t ic ularpar t ies, b u t th e purpose that reason able p a rtici

pa nts would have ha d, a s a s certa i ned from the pa rties ’ s t a t ements a n d a c t i ons and t h e cir c um s t a n ces in which t h e en cou n t er occu rred. P. 13. (2) The existence of an “o ngoingemerge ncy” at the time of the encounter is among the most impo rt a n tcircum s t a nces inform ing t h e inter r o g a tion’ s “pr i mar ypurpose.” See, e. g ., Davi s , 547 U. S., at 828– 830. Aneme r g e nc yfocu ses th e p a r t ic ip an ts n o ton“ p r o v [ in g] past events potentially relevant to later criminal prosecution,” id., at 822, but on “end[ing] a th r e aten i n gsitu ation , ” id., at 832. Th e M i ch ig an Supreme Court failed to app r eciate that whether an emergency exists and is ongoing is a highly co ntext- dependent inquiry. An assessment of whether an emergency threatenin g the police and publi cis ongoing ca nnot na r r o w ly foc u s on whetherth e thr e at to the fi r s t v i c t im has been neutralized because the threat to the fir s t r e sponder s and public may continue. The State Su preme Co urt also did notap preciate that3 Cite as: 56 2 U

. S. ____ (2011) Sy llabu s an emergency’s duration andscope ma y de pend in part o nthe type of weapon involv ed; the co urt below relie d on Davis an d Hammon , where the assailant s used t h eir fist s, a s controlling the scope of an em ergenc y inv o lving agun . A vict im ’s med i cal condition i s import ant to the pr imar ypur p ose inquir yto the extent that i tsheds light on the vict im ’s ab i lity t ohave a n y purpos e at all in responding to police questions and on the lik eliho o d that any such purpose wo uld be a tes

timonialone. It also provid es im port a n tc o nt extfor firstres p onders to judg e the ex istenc e and mag n itude of a c o ntinuingthr e at to the victim, thems e lves, and the public. This does not mean that an emergency lasts the entire ti me that a per p etrator is on the loose, but tr ial c o ur ts c a n deter m ine i nthe fi rs tins t a n ce w h en a n int e rroga t i on tr ansitions fr o mnontestimo nial to te sti m onial. Finally, whethe r an ongoing emergency e x ists is simply one factor informing the ultimate inquiry regarding an interrogation’s“ p rim a ry purpos e. ” Anot her is the encounter’s informality. Formality suggests the absence of an emergency, but informali t y does not necessarily indicate the presence of an emergency o rthe lackof te stimonia l intent. The facts here— the questioni n g occurred in an ex posed, public area, before emer

genc y m e dica l s e rvices a r r ived, an d in a disor g an ized fash ion— distinguish this case from Cra wford’s for m a lstation-hous e interroga

tion

. Pp. 14–20. (3) Th e sta t em en ts an d ac tio n s of both th e dec l ar an t an d in ter r o gators al so pr ovide objectiv e eviden c eof the inter r o g a tion’ s pr imar y purpose. Looking to the contents of bo th the ques tions and the an

sw er s amelior a tes pr oble ms th at c o uld arise from looking solely to one par t ic ipa n t, sinc e both inter r o g a tor s and dec l ar an ts m a yhav e mix e d motiv e s . Polic e offic e r s ’ dual r e sponsibili ties as both fir s t r e sponders and criminal investigators mayl e ad them to ac t with differ

ent motiv e s s i multaneouslyorin qu ic k suc c e ssion

. An d du r i n gan ongoing em erg e ncy , vict im s m a y wa nt the thr e at to end, but m a ynot envision prose c ution. Alternativel y, as e verelyinj u redvict imm a y h av en opur p ose at al l inan swer in gqu estion s. Takin g in to ac c o u n t such injuries does not make the in quiry s u bjective. The inquiry stil l focuses on the understanding and pu rpose of a reasonable victim in the ac tual v i c t im’ s c i r c u msta nc es, whi c h prominentlyinc l ude the v i c tim’ s phy s ic al sta t e. Objec t i v ely ascertaini ng the primary purpose of the inter r o g a tion byex amin in gth e statem en ts an d ac tion s of all par

ticipants is al so consistent with this Cou r t’s prior holdings. E.g

. , Davis, 547 U. S., at 822 –82 3 , n . 1. Pp. 20– 23.

(c ) Her e , the cir c u mstanc es of th e encounter as well as the state

ments and ac tions of Cov i ng ton an d the police objectiv ely indicate that the inter r o g a tion’ s “pr i mar ypu rpose” was “to enable pol i ce as sist an c eto meet anon g o ing emer g e n c y , ” 5 47 U. S., at 822. Th e c i r -4 MICHIGAN v. BRYANT Sy llabu s
c u mstanc es of the inter r o g a tion involved an armed shooter, whose motive for an d location after the shooting were unk no wn and who ha d morta l ly wounded Covi ngton within afew b l ocks and afew min

utes of the location where p o lice fo undCovington. Unli ke the emer

gencies in Da vis an d Ham m on , this dispute’s potential scope an d thus the emer gency encomp asseda potential threat to the police an d the public. And since this case involved agun, t h e ph ys ica ls e pa ra tion that wa s suffic i ent to end the emergency in Hammonwas not neces s a rily s u fficient t oend t h e t h rea ther e . Inform ed by t h e circum

stances of the ongoing emergency, the Cour t now tur n sto deter m in

ing the “primary purpose of the in terrogation” as evid enced by the statements and actions of Coving ton and the police. The circum

s t a n ces of t h e encou n t e r pro v ide im port a n tcont extfor u n ders t a nding Covington’s statements to the polic e. Wh en he responded to their qu estion s, h e w a s ly in gina g a s st ation p a rking lot ble e ding from a morta lguns hot wound, a n d his a n s w ers were punctua t e dwith q u es tions about w h en emerge ncy medica l s e rvices would a rrive. Th us , this Court ca n n ot s a y that a pers on in his situa t ion would have ha d a “pr i mar ypur p ose” “to e s t abl ish or prove p a st events potentially rele

va nt to la ter crimina l pros ec ution.” Ibid. For t h eir pa rt , t h e polic e r e spon ded to a c a ll th at a man h a d beenshot. They did not know why, whe r e, o rwhe nthe shooting ha d o ccu rred; t h e s h oot er’s loca

tion; or anything else about the crim e. The yasked exactly the type of questions nece ssary to enabl ethem “to me et an ongoing emergency.” Ibid. Nothing in Covington’s response s in dic a ted to the polic e tha t there was no emergency or that th e emergency had ended. Finally, th is si tu ationis mor esi mi larto th e in for m al, h a r r i ed 911 c a ll in Davistha nto the s t ructure d , s t ation-hous e interview in Crawford

. The officers a ll a rrived a tdifferentt i m e s ; a s ked, upon a rriva l, wha t ha d ha ppened; a n d gene ra lly did not cond uct as t ructur ed interroga

tion

. Th e in for m alitysu g g e sts th at their primary purpose was to ad

dress what they considered to be a nongoing em er genc y, a n d t h e cir

c u mstanc es la c k ed a for m alitythat would hav ealer ted Cov i ng ton to or focused him on the po ssible futu re pr osecutorial use of his state

men t s. Pp. 23–32. 483 M i c h . 132, 768 N. W. 2d 65, v a c a ted an d r e man d ed.

S OTOMAYOR , J., delivered the opinion of the Court, in whi c h R OBERTS , C. J., and K ENNEDY , B REYE R , an d ALITO , JJ., joined. T HOMAS , J., filed an opinion concurring in the judgment. S CALIA , J., and G IN SB U R G , J ., filed di ssentin g opinions. K AGAN , J., took no part in the consideration or decision of th e case._________________

_________________ 1 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 50 

### MICHIGAN, PETITI ONER v. RI CHAR D PE RRY BRYA N T ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF MICHIGAN [Febr u ar y28, 201 1] 

### J USTICE 

### S OTOMAYOR

### d e livered theopinion of t h e Court. At respondent Richard Bryan t ’s t r ial, the court admitt e d statements that the victim, Anthony Covington, made t o police office rs who discovered him mortally wounded in a gas station parking lot. A jury convicted Br y ant of, inter alia , second-degree murder. 483 Mich. 13 2, 137, 76 8 N. W. 2d 65 , 67–68 (2009). On a p peal, the Su preme Court of Michigan held that the Sixth Amendment’s Confronta

tion Clause, as explained in our decisions in Cra wfordv. Washin gton , 541 U. S. 36 (2004), a n d Davisv. Washin gton , 547 U. S. 813 (2006), rendered Covington’s statements inadmissible testimonial hearsay, and the court reversed Bryan t ’s conviction. 4 83 Mich., a t157, 768 N. W. 2d, a t 79. We granted the State’s peti tion for a writ of certiorari to consider whether th e Confrontation Claus e barred the admission at trial of Covington’s statements to the police. We hold that the circu mstances of the interaction between Covington and the police object ively indicate that t h e “primary purpose of the interrogation” wa s “to enable police assis t ance to meet an ongoing emergency.” Davi s , 547 U. S., at 822. Therefore, Covington’s identification2 MICHIGAN v. BRYANT Opinion of theCourt 

### and description of the shooter and the location of the shooting were not testimonial statements, and their a d

mission at Bryan t ’s tri al did not violate the Confrontation Clause. W e vacate the judgment of the Supreme Court of Michigan and remand. I Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police offic e rs responded to a radio dispatch indicating that a man had been shot. At the scene, they found the victim, Ant h ony Covin gton, lying on the ground next to h i s car in a gas station parking lot. Covington had a gunshot wound to his abdomen , appeared to be in great pain, and spok e with difficulty. The police asked him “wha t had happened, who h a d shot him, and where the shooting had occurred.” 483 Mich., at 143, 768 N. W. 2d, at 7 1

. Covington stated that “Rick” shot him at arou nd 3 a.m. Id

. , at 136, a n d n. 1, 768 N. W. 2d, a t67, and n. 1. He also indicated that he had a conversation with B r y ant, whom he recognized based on his voice, t h rough the back door of Bryant’s house. Cov

ington 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 with in hours. The police left the gas station after speaking with Covington, called forbackup, and traveled to Bryan t ’s house. They did not fi nd Bryant there but did find blood and a bullet on the back porchand an apparen tbullet hole in the back door. Police also foun d Covingto n’s wallet and identification outside the house. At trial, wh ich occurred pr ior to our decisions in Craw

ford , 541 U. S. 36, an d Davi s , 54 7 U. S. 81 3, the police officers who spoke withCovington at the gas s t ation testi

-3 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### fied about what Covington had told them. The jury re

turned a guilty ver d ict on cha r ges of second-degree murder, being a felon in possession of a firearm, and po s sessionof a firearm during the commission of a f e lony. Bryan tappealed, and the Michigan Court of Appeals affirmed his conviction. No. 247039, 2004 WL 1882661 (Aug. 24, 2 004) (percu riam)

. Bryant then appealed to th e Supreme Court of Michigan, argu ing that th e trial court erred in ad mitting Co vington’s st atements to the police. The Supre m e Court of Michigan eventually remanded the case to the Court of Appeals for reconsideration in light of our 2006 d e cision in Davis

. 477 Mich. 902, 722 N. W. 2d 797 (2006). On remand, the Co urt of Appeals again af

firmed, holding that Covington’s s t atements were properly admitted b e cause they were not testimonial. No. 247039, 2007 WL 675471 (Mar. 6, 2007) (per curia m )

. Bryan t 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 argue d that Coving ton’s statements to the police wer e testimonial under Cra wford and Davisand were therefore inadmis s i

ble. The State, on the other hand, argued tha tthe state

ments were admissible as “excited utterances” under the Michigan Rules of Evidence. 483 Mich., at 1 42, and n. 6, 768 N. W. 2 d , at 70, an d n. 6. There was no di spute that Covington was unavai lable at trial and Bryant had no prior oppor t unity to cr oss-examine him. The court ther e fore assessed whether Covingto n’s statements to the police identifying and describing the shooter and th e time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court con

cluded thatthe circumstances “clearly indicate that t h e ‘primary purpose’ of th e questioning was to establish th e facts of an event that had alread y occurred; the ‘primar y purpose’ was not to e nable police assistance to meet an ongoing emergency.” Id. , at 143, 7 68 N. W. 2d , at 71. The4 MICHIGAN v. BRYANT Opinion of theCourt 

### court explai ned that, in its view, Covington was describing past events and as suc h , his “pri mary pu rpo s e in making these statements to the police

. . . was . . . to t e ll the polic e who had committed the crime against him, where the crime had b een committed, and wh ere the police could find the criminal.” Id. , at 144, 768 N. W. 2d, at 71. Noting that the of ficers’ actio n s did not suggest th at they per

ceived an ongoing emergency at the gas station, the cou r t held that there was in fact no ongoing emergency. Id. , a t 145–147, 768 N. W. 2d, at 71–73. The court distinguished the facts of this case fr om those in Davi s , where we held a declarant’s statements in a 911 call to be non t estimonial. It instead analogized this case to Hammo n v. Indian a , which we decided jointly with Davis and in which we found testimonial a declarant’s s t atements to police just after an ass ault. See 5 47 U. S., at 829–832. B a sed on this analysis, the Suprem e Court of Michigan h e ld that th e admission of Covington’s statements constituted prejud i

cial plain error warra n ting reversal and or dered 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’ admissionwould have been otherwise consistent with Michigan’s hearsay rules or du e process. 1

——————

1 The Supreme Court of Mi chi g an heldthat the question whether the v i c t im’ s sta t e m en ts wou l d h av ebeenadmiss ible as “d y i n gdec l ar ati o n s ” was not prope r ly before it b e cause atthe preliminary examination, t h e pr osec u t ion , afterfir s t in v o kin gbothth e dy in gdec l ar ationan d ex c i ted uttera nce hea r s a y exceptions , es tab l is hed the fa ctua l founda t ion only foradmis s ion of the sta t eme n ts as ex c i tedutter a nc es. The tr ial c o urt r u led that the sta t ements wer eadmi ss ib le as ex c i ted utter a nc es and did n o t addr es s th eiradm i s s ibili tyas dy in gdec l ar ation s . 48 3 M i c h ., at 153 –1 54, 7 6 8N. W. 2d, a t76–7 7. Th is oc c u rr ed pr iorto ou r20 0 4 decision in Crawford v. Was h i n g t o n , 541 U. S. 36, wh er e we first su g g e sted th at dy in gdec l aration s , ev en if testi m onial, might be adm i s s ib l e as ahis t orica lexception to the Conf r o nta t ion Cla u s e . Id. , at 56, n . 6; see also Gilesv. Calif ornia , 554 U. S. 353, 358–3 59 (2 00 8). We5 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### The majority’s opinion provok ed two dissents, both of which woul d have held Covington’s statements admissible because they were mad e in circumstances indicating that their “primary purpose” was to assist police in addressin g an ongoing emergency. Id. , at 157, 768 N. W. 2d, at 79 (opinion of Weaver, J.); id. , at 15 7–158, 768 N. W. 2d, a t 79 (opinionof Corriga n, 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. Ju stice Corrigan concluded that the objective ci rcumstance s of Covin gton’s inte raction wit h police rendered this case more similar to the nontestimo

nial statements in Da visthan to the testimonial state

ments in Cra wford

. 483 Mich., at 164, 7 68 N. W. 2d, at 82. We grante dcertiorarito determi n e whether the Con

frontation Clause bar red admission of Covington’s state

ments. 559 U. S. ___ (2 010). II The Confrontation Clause of the Sixth Amendmen t states: “In all crimin a l prosecutions, the a ccused shall enjoy the r i ght . . . to be co nfronted with th e witnesses against him.” The F o urteenth Amendment renders t h e Clause bin d ing on the States. Pointer v. Texas , 380 U. S. 400, 403 (1965). In Ohio v. Roberts , 448 U. S. 56, 6 6 (1980), we explained that the con f rontation right does n o t bar admission of statements of an unavailable witness if the statements “bea[r] adequate ‘indicia of reliability. ’ ”

—————— noted in Cra wford that we “need not dec i de in this case whether th e Sixth Amendment incorpo r ates an exception for te stimoni a l dying dec l ar ation s .” 54 1 U. S., a t56, n

. 6

. Bec a use of the State’s failure to pres erve it s argum e ntwit hrega rd to dyi n g declarations, we si mil a rly need not deci de that questi on here

. See also post , p. __ (G IN SB U R G , J., dissen t in g)

.6 MICHIGAN v. BRYANT Opinion of theCourt 

### We held that reliability can be established if “the evidence falls within a firmly rooted hear say exception,” or if it does not fall within such an exception, then if it bears “particu

larized guarantees of trustworthiness.” Ibid. Nearly a quarter cent ury later, we decided Cra wfordv. Washin gton , 541 U. S. 36. Petiti oner Michael Crawford was prosecuted for stabbing a man who had allegedly attempted t o rape his wife, Sy lvia. Sylvia witnessed the stabbing, a n d later that night, after she and her husba nd were both arrested, police inter r ogated her about the incident. At trial, Sylvia Crawford claimed s p ousal privi

lege and did not testify, but the State intro duced a tape recording of Sylvia’s st atement to the police in an effort to prove that the stabbing was not in self-defense, as Michael Crawford claimed. T h e Washin gton Supre m e Court af

firmed Cra w ford’s conviction because it found Syl via’s statement to be reliable, as required under Ohio v. Rob

erts. We reversed, overruling Ohi o v. Roberts

. 541 U. S. , at 60–68; see also Davis , 547 U. S., at 825, n. 4. Cra wford 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 it s use of ex parte exami nations as evidence against the ac

cused.” 54 1 U. S., at 50. We noted that in England, pre

trial examinations of suspects and witnesses by govern ment officia l s “were sometimes re ad in court in li eu of live testimony.” Id. , at 43. In light of this history, we empha

sized the word “witnes s es” in the Sixth Amen dment, defin

ing it as “t hose who ‘bear testimony.’ ” Id. , a t51 (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 estab

lishing or p r oving some fact.’ ” 541 U. S., at 51 (quoting Webster). We noted that “[a]n a ccuser who makes a f o r mal statement to gover n ment officers bears testimony in a7 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### sense that a person who makes a casual remark to a n 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 a d

missible, the Sixth Am endm ent “d emands wh at the com

mon law required: unavailability and a prior opportunity for cross-examination.” Id. , at 68. Although “ l eav[ing] for another da y anyeffortto spell out a compreh e nsive defini

tion of ‘testi monial,’ ” Crawford noted that “at a minimum ” it includes “prior testimony at a prelimin ary hearing, before a grand jury, o rat a former trial; and . . . polic e interrogations.” Ibid. Under this reasoning, we held that Sylvia Crawford’s statements in the course of police ques

tioning were testimonial and that their admission when Michael Crawford “ha dno oppor t unity to cross-examine her” due to spousal privilege wa s “sufficient to make out a violation of the Sixth Amendment.” Ibid. In 2006, the Court in Davis v. Wa shingtonan d Hammo n v. Indiana , 547 U. S. 813, took afurther step to “dete r mine more precisely which police interrogations produce testimony” and therefore implicate a Confrontation Clause bar. Id. , at 822. We explained th at when Cr awfordsaid that “ ‘interroga t i ons by law en forcement officers fall squarely within [the] class’ of testimonial h e a r say, we had immediately in mind (for that was the case before us) interrogations solely di rected at establis hing the facts of a past crime, in order to identify (or provide evidence to convict) th e perpetrat o r. The pr oduct of such interr ogation, whether red u ced to awritin g signed by the declarant or embedded in the memory (and perha p s notes) of the interro gating offic e r, is tes

timonial.” Davis , 547 U. S., at 82 6. We thus made clear in Davis tha tnot all those questioned by the police are witnesses and not all “interrogations by8 MICHIGAN v. BRYANT Opinion of theCourt 

### law enforcement officers,” Cr awfo rd , 541 U. S., at 53, a r e subject to the Confrontation Clause. 2 

### Davis and Hammo n were both domestic violence cases. In Davis , M i chelle McCottrymade the statements at issue to a 911 operator du ring a domestic disturbance wi th Adrian Da vis, her for m er boyfriend. Mc Cot trytold th e operator, “ ‘He’s here jumpin’ on me again,’ ” and, “ ‘He’ s usin’ his fists.’ ” 547 U. S., a t8 17. The operator the n asked McC o ttry forDa vis’ first an d last names and middle initial, andat that point in the conversation McCottr y reported t hat Da vis had fled in a car. Id. , at 8 18. McCottry did not appear at Davis’ trial, an d the State introduced the recording of her conversation with the 911 operator. Id. , at 819. In Hammo n , decided a l ong with Davis , police responded to a domes t ic disturba nce call atthe home of Amy and H e rshel H a mmon, where they found Amy alone on the front porch. Ibid. She appeared “ ‘som ewhat frightened,’ ” but told them “ ‘nothing was the matter.’ ” Ibid. (quotin g 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 shattere d on the floor. One officer remained in the kitchen wit h Hershel, while another officer talked to Amyin the living room aboutwhat had happened. Hershel tried several times to participate in Amy’s conv ersation with the police and became angry wh en the po lice 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: “ ‘Brok e our Furnace & shove dme down on the f l oor

——————

2 We noted in Crawfordthat “[w]e use the ter m‘ i nter r o g a tion’ in its colloquial, rat h er than any technical leg a l, sense,” andthat “[j]usta s various definitions of ‘testi monial ’ exist, one can im agine various definitions of ‘interrogation,’ and we need not selec tamo n gthem in this c a se.” 54 1 U. S., at 53, n

. 4. Davis did n o t aban dont h ose qu alific a tions ; nor do w edo s ohere

.9 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### into the broken glass. Hit me in t h e chest and threw me down. Bro k e our lamps & phone. Tore up my van where I couldn’t leave the hous e. Attacke dmy daugh t er.’ ” Id. , a t 820. Amy did not appear at Hers hel’s trial, so the police officers who spoke wit hher testified as to her statement s and authenticated the affidavit. Ibid

. The trial court admitted the affidavit as a present sense im pression an d admitted th e oral statements as excited u tter ances unde r state hearsay rules. Ib i d

. The I n diana Supreme Court affirmed Hammon’s conviction, holding that Amy’s oral statements were not te stimonial and that the admission of the affidavi t, although erroneous because the affidavit wa s testimonial, was harmless. Hammonv. Sta t e , 829 N. E. 2d, at 458–459. To address the facts of both cas e s, we expanded upon the meaning of “testimonial” that we first employed in Cra wfordand discussed the concept of an on going emer

gency. We explained: “Statements are nontestimonial when made in the course of police interrogation under circums ta nces ob

jectively in dicating th at the pri m ary pu rp ose of the interrogation is to enable police as sistance to meet an ongoing emergency. They are testimonial when the circumstan c es objectively indicate that there is no such ongoing emerge ncy, andth at the pri m ary pur pose of the interrogation is to establish or prove past events potentially relevant to lat e r criminal prosecu

tion.” Davis , 547 U. S., at 822

. Examining the Davis an d Hammo nstatements in light of those defin i tions, we held that the stateme n ts at issu e in Davis were nontestimonial and the statements in Hammon were testimonial. We distinguished the state

ments in Davisfrom the testimon ial stateme n ts in Cra w fordon several ground s, including that the vi ctim in Dav i s was “speaki n g about events as t h ey w e react u ally happe n -10 MICHIGAN v. BRYANT Opinion of theCourt 

### ing , rather than ‘descri b[ing] past events,’ ” th at there wa s an ongoing emergency, that the “e licited statements were necessary to be able to resolvethe present emergency,” and that the statements were not formal. 547 U. S., a t 827. In Hammon , onthe other ha nd, we heldthat, “[i]t is entirely clear from the circumsta nces that the interroga

tion was part of an investigation into poss ibly criminal past condu ct.” Id. , at 829. There was “no emergency i n progress.” Ibid. The officer questioning Amy “was n o t seeking to determine . . . ‘what is happening,’ but rather ‘what happened.’ ” Id. , at 830. It was “formal enough” that the police interrog a ted Am y i na room se parate from her husband where, “some time af ter the events described were over,” she “deliberately recounted, in response to police ques t ioning, how potentially criminal past events began and progressed.” Ibid

. Because her statements “were neither a cry for help nor t h e provision of inform a tion enabling officers immedi ately to end athreatening situation,” id. , at 832, we held that they were testimonial. Davis did not “attemp[t] to produce an exhaustive classi

fication of a ll conceivab l e statemen ts—or even all conceiv

able statements in response to police interrogation—as either testi m onial or nontestimo nial.” Id

. , at 822. 3

### T h e

——————

3 Davisex plain e d th at 91 1 oper ator s “ma yat least be ag en ts of la w enforcem e ntwhent h ey conducti n t e rr oga t ions of 9 1 1 ca llers ,” a n d therefore “co n sider[ed] their acts to be acts of the police” for purposes o f th e opin ion

. 547 U. S., at 823, n

. 2. Da v i sexplicitly reserved the question of “whether an d when statements made to some one other than law enforceme nt personnel are ‘testimonial .’ ” Ibid. We have no need to dec i de that qu estion in this c a se either be cause Covington’s state m ents were m a de t opolice officer s . The dis s e nta l s oclaim s t ores e rve t h is question, see post , at 3, n

. 1 (opin i onof S CALIA , J.), but supports one of its ar g u men t s byrelying on King v. Brasier , 1 Leac h199, 200, 16 8 En g . Rep. 202, 2 0 2 –20 3 (K. B. 1779), wh ic hinv o lv ed statem en ts made by a c h ild to her mother—a pr iv ate c i tizen—j u st afterthe c h ild had been sex u allyassau l ted. See also Crawford v. Was h i n g t o n , 541 U. S. 36, 69 – 70 (2 00 4) (Re h n q u i st, C. J., con c ur ring i nj u dgment) (citing King v.11 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### basic purpose of the Confrontation Clause was to “targe[t] ” the sort of “abuses” exemplified a tthe notorious treason trial of Sir Walter Raleigh. Cra wford , 541 U. S., a t5 1

. Thus, the most important instances in which the Clause restricts th e introduct ion of out-of-court sta t ements are those in which state actors are involved in a formal, out-of

court inter r ogation of a witness to obtain evidence for trial. 4 

### See id. , at 43–44. Even where such an interroga

tion is conducted wit hall good faith, introduction of t h e resulting statements at trial can be unfair to the accused if they are untested by cross-examination. Whether for

mal or inf o rmal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is t o prevent the accused from being deprived of the opportu

nity to cro ss-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 pu rpos e is not to create a rec o rd for tria l and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergen

cies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for tri al testimony. In making the primary purpose determination, standard rules of hears a y, designed to identif ysome state

-

—————— Brasierfor thedifferent proposition that“o ut-of-court statements made by someone other than the a ccuse d a n d no t ta ken under oa th, unlike ex partedepositi ons or affidavits, were gene ra lly not cons idered s u b s ta n tive evidence upon which a c o n v ic tion c o u l d be based”).

4 Cont ra ry t oth e dis s e nt ’s excit e d s u ggestion, nothi n g in this opinion c a sts “f av or abl e ligh t ,” post , at 11 (opin i onof S CALIA , J.), on the conduct of Sir W a lter Raleigh’s tri a lor ot h e r16 t h - an d 1 7 th -c en tu r yEn glish trea s o n tria ls

. The dis s e nt is correct tha ts u ch tria ls a r e “unq ues t iona

blyin famou s ,” ibid. , a n d ou r decis i on her econfirm s , ra t h er t h a nu n der m in es, th a tas ses s men t

. See also n . 17, infra

. For all of the r e ason s disc u ssed inJ US TICE T HOMAS ’ opinion concurring in the judg

ment, the situation pr esente d in this case is nothing like the circum

stan c e s pr esen ted bySirWal t er Raleigh’s trial. See post , p. __.12 MICHIGAN v. BRYANT Opinion of theCourt 

### ments as r e liable, will be re l e vant. Where no such pri

mary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. 5 

### Deciding th is case a l so requires f u rther explanation of the “ongoing emergency” circumstance addressed in Davi s . Because Davis and Hammonarose in the d o mestic vio

lence context, tha t was the situation “we had immediately in mind (for that was the case before us).” 547 U. S., at 826. We n o w face a new context: a nondomestic dispute , involving a victim found in a public location, sufferin g from a fatal gunshot wound, a n d a perpetrator who s e location was unknownat the time the police located the victim. Thus, we confront fo r the first time circumstanc es in which the “ongoing emergency” discussed in Dav i s extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context req u ires us to provide additional clarification with regard to what Davis meant by “the primary purpose of the interrogation is to enable police assistance to m eet a n ongoing emergency.” Id

. , at 822. III To determ ine whether the “pri mary purp ose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” Davis , 547 U. S., at 822, which woul d render the resulting statements nontestimonial, we objec

tively evalu a te the cir c u mstances in which th e encounter occurs and the statements and acti ons of the parties.

——————

5 See Davisv. Washin gton , 5 47 U. S. 813, 823 –8 24 (20 0 6 ) (ex p lain in g the question before the Court as “whether the Confro nta t ion Cla u se applie s only t otes t imonia l hearsay” and answering in the affirma t ive bec a use “[a] li mita tion so c l ear l yr e flec tedin the tex tof the c o nstitu

tional provisio n must fa irly be s a id to m a r kout not mer e lyits ‘ c or e,’ but its per i meter” )

. See also post , at 2 (S CALIA , J., dis s e nting).13 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### A The Michig an Suprem e Court cor r ectly un derstood tha t this inquiry is objective. 6

### 483 Mich., at 142, 768 N. W. 2d, at 70. Dav i s uses the word “objec tive” or “obj ectively” n o fewer than eight times in describing the rele vant inquiry. See 547 U. S., at 822, 826–828, 830–831, and n. 5; see, e.g. , id. , at 826 (“The que stion before us in Da vis , then, i s whether, objectively c o nsidered, the interrogation that took place i nthe cours e of the 911 call produced testim o nial statements”). “Objectively” also appears in the defini

tions of bot htestimonial and non t estimonial statements that Da visestablished. Id. , at 822. An objective analysis of the circu mstances of an encoun

ter andth e statements and a cti ons of the parties to i t provides the most accurate assessment of the “primary purpose of t h e interrog a tion.” The circumstan c es in whic h an encounter occurs—e.g . , at or ne ar the scene of the crime versus at apolice station, during an ongoing emergency or afterwar ds—are clearly matte r s of objective fact. Th e statements and actions of the part ies must a l so beobjec

tively evaluated. That is, th e relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that rea

sonable par t icipants would have had, as ascertained from the individuals’ statements and actions and the circu m stances in which the encounter occurred. 7

——————

6 Br y a n tsu g g e sts th at M i c h ig anis ar g u in g for“a su bjec t iv ean aly s i s of the intent of the inter r o g a tor ’ s questi oning.” Brief for Respondent 12. We do n o t r e ad M i c h ig an ’ s br ief to be ar g u in gfora su bjec t iv e i n q u i r y , a n da n ys u c ha r g u m e n tw o u l db ei ne r r o r . W ed on o tu n d e r stand the dissent to disagree thatthe inquiry is objective.

7 This approach is consistent with ou r rejection of su bject ive inquiries in other areas of criminal l a w. See, e.g. , Whren v. United States , 517 U. S. 806, 8 1 3 (199 6) (r efu s in gto ev alu a te Fou r thAmen dmen t r e ason ableness subjectively inlight of the offic e r s ’ ac tual mo tiv a tions); Ne w York v. Qu ar le s , 467 U. S. 649, 6 5 5 –65 6, an d n

. 6 (198 4) (h oldin gth at an offic e r ’ s subjec tiv emot iv a tion is irrelevant to de termining the14MICHIGAN v. BRYANT Opinion of theCourt 

### B As our recent Confrontation Clause cases have ex

plained, the existence of an “ongoing emergency” at the time of an encounter between an in dividual and the police is among the most important circu mstances informing the “primar yp u rpose” of an interrog a tion. See Davi s , 547 U. S., at 828–830; Crawford , 541 U. S., at 65. The exis

tence of an ongoing emergency is r e levant to determining the primary purpose of the interrogationbecause an emergency focuses the parti cipants on something other than “pro v[ing] past e v ents potentially relevant to later criminal prosecution.” 8 

### Davis , 547 U. S., at 822. Rather, it focuses them on “en d [ing] a threatening situation.” Id. , at 832. Implicit in Davis is th e idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably signifi

cantly dim i nished, th e Confrontation Clau se does not require such statements to be subject to the crucible of cross-examination. This logic is not unlike that justif ying the ex cited utter

ance exception in hearsay law. Statements “relating to a startling event or condition made while the declarant wa s under the stress of e x citement caused by the event or

—————— applicab ili ty of the pub lic safety exception to Miran d a v. Arizona , 384 U. S. 436 (1 96 6)); Rhode I s la nd v. Inni s , 446 U. S. 2 91, 301 –30 2 (19 8 0 ) (holdingthat a polic e offic e r ’ s subjec tiv ei n tent to obt a i ninc r i minator y sta t ements i s not r e lev a nt to deter m ining whetheran inter r o g a tion ha s occu rred).

8 The existence of an ongoing emerge n c ymust be objec t iv elyasse ss e d from the perspective of the parties to the inter r o g a tion at the time, not with the bene fit of hinds i gh t. If the information the parties knew at the time of the enco unter would lead a reasonable pe rson to believe that there was an emer gency, eve nif that belief wa s later proved incorre ct , t h a tis s u fficient for purpos es of t h e Confront a t ion Cla u se. The emergency is relevant to the “p rimary purpose of the interrogation” because of the effect it has on the parties’ purpose, not because of its ac tu al ex isten c e.15 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### condition,” Fed. Rule Evid. 803(2 ) ; see also Mich. Rul e Evid. 803(2) (2010), ar e considered reliable because th e declarant, in the excitement, presumably cannot form a falsehood. See Idaho v. Wr igh t , 49 7 U. S. 805, 820 (1990) (“The basis for the ‘ex c ited utteran c e’ excep t ion . . . is tha t such state m ents are given un der circumstances th at eliminate the possibility of fab r ication, coaching, or co n fabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence §803.04[1] (J. McLaughli ned., 2d e d

. 2010) (same); Advisory Committee’s Notes on Fed. Ru le Evid. 803(2 ) , 28 U. S. C. App., p. 371 (same). An ongoin g emergency has a sim i lar effect of focusing an individual’s attention on responding to the emergency. 9 

### Following our precedents, the court below correctl y began its analysis with the circu mstances in which Co v ington interacted withthe police. 483 Mich., at 143, 768

——————

9 Ma nyot her e x cept ions t ot h e hea r s a y r u les s i mila rly res ton t h e belief th at c e r t ainst atemen ts ar e, byth eirn a tu r e , made fora pur p ose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g. , Fed. Ru le Ev id. 801(d)( 2 )(E) (sta temen t bya c o -c on spir atordu r i n gan d infur t h e r a n c e of th e c o nspir a c y); 803(4 ) (Sta tements f o rPur p oses of M e dic a l Diag nosis orTr eatment); 80 3( 6) (Rec or ds of R e g u lar l yCon d u c ted Ac tiv i ty); 803( 8) (Pu b l i cRec o r d s an d Repor t s); 80 3( 9) (Rec or ds of Vita l S t at ist i c s ); 803(1 1 ) ( R ec or ds of Reli

gi ou s Org a n i zation s); 80 3( 12) (M ar r i ag e, Baptis mal, an d Simil a r Cer t ific ates); 803( 13) (F ami l yRec o r d s); 804(b)( 3 ) (St a t e men tAg ain s t In ter e st); see also Melen dez - Diaz v. Mas s achu se tts , 557 U. S. __, __ (200 9) (s lip o p ., at 1 8) (“ B u sin e ss an d pu blicr e c o r d s ar e g e n e r a lly a d mis s i b l e ab s e nt confront a t ion not b e c a us e they q u a lify under a n exception to the hearsay rules, bu t because—having been created for the adminis t r a tion of an entity ’ s affairs and not for the purpose o f establi s hing or proving some fact at tr ial

—theyar e not te sti m onial”) ; Giles v. California , 554 U. S ., at 37 6 (n oti n ginth e c o n t ex t of domes t i c v i olenc ethat “[s]ta tement s to fr ien d s an d n e ighb or s abou tabu se an d intimid a tion and st ate m ents to phy s icia ns in the course of receiving trea tment would b eexcluded, if a ta ll, o n ly by hearsay rules”); Craw

ford , 541 U. S., at 5 6(“M o st of th e h e ar sayex c e ption s c o v e r e d state

ments tha tby theirnatur ewer eno t testi m onial—for example, business records ors t a t em ent s in furt hera nceof ac o ns pira cy” )

.16 MICHIGAN v. BRYANT Opinion of theCourt 

### N. W. 2d, at71. Butin doing so, the court cons trued Davis to have decided more than it did and thus employed a n unduly narrow unders t anding of “ongoing emergency” th at Davis does not require. First, the Michigan Supreme Court repe atedly and incorrectly asserted that Davi s“defined” “ ‘ongoing emer

gency.’ ” 483 Mich., at 147, 768 N. W. 2d, at 73; see a l so id. , at 144, 768 N. W. 2 d , at 71–72. In fact, Davis did not even definethe extent of the em ergency in that case. Th e Michigan S u preme Court erroneously read Davisas deci d

ing that “th e statements made after the defendant stoppe d assaulting the victim and left the premises did not oc cur during an ‘ongoing emergency.’ ” 483 Mich., at 150, n. 1 5 , 768 N. W. 2d, at 75, n. 15. We explicitly explained in Davis , however, that we were asked to review only the testimonialnature of Michelle McCottry’s initial state

ments duri ng the 911 call; we therefore merely assum e d the correctness of the Washington Supreme Court’s hold

ing that admission of her other statements was harmles s, without de ciding whe t her those subsequen tstatements were also made for the primary purpose of resolving an ongoing emergency. 54 7 U. S., at 8 29. Second, by assuming that Dav i sdefined the oute r bounds of “ongoing emergency,” the Michigan Supreme Court failed to appre c iate that whether a nemergency exists and is ongoing is a highly context-de pendent in

quiry. See Brief for United States as Amicus Cu riae20

. Davis and Hammoninvolved domestic viol ence, a known and identified perpetra tor, and, in Hammo n , a neutralized threat. Be cause Davi s and Ham m o n were domestic vi o lence cases, we focused only on the threat to the victims and assesse d the ongoing emergency from the perspective of whether there was a continuing threat to t h em . 547 U. S., at 82 7, 829–830. Domestic vi olence cases like Davi s and Ham m o noften have a na rrower zone of poten t ial victims than cases17 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### involving threats to public safety. An assessment of whether anemergency that threatens the police and pub

lic is ongoin g cannot narrowly focu s on whether the threat solely to the first victi m has been neutralized because the threat to t h e 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 State s as Amicus Curiae19 – 20 (“An emergency posed by an unknownshooter who remains at large does n o t aut omatically abate just because the police can provide security to his first vict im”). The Michigan Supreme Court als o 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 Hammo n , in which t h e assailan ts used their fists, as controlling the scope of the emergency here, which involved the use of a gun. The problem with that reason

ing is clear when considered in light of the assault on Amy Hammon. Hershel Ha mmon was armed only with his fists when he attacked his wife, so removing Amy t o a separate room was s u fficient to end the emergency. 547 U. S., a t 830–832. If Hershel ha d been reported to be a r med with a gun, however, separation by a single househ old wall might not have been sufficien t to end the emergency. Id. , at 819. The Michigan Suprem e Court’s f a ilure to focus on the context-dependent nature of our Davis decis i on also ledit to conclude that the medical condition of a declarant is irrelevant. 483 Mich., at 149, 76 8 N. W. 2d, at 74 (“Th e Court said nothing at all thatwo uld remotely suggest that whether th e victim was in need of medical attention was in any wa y relevant to whether there was an ‘ongoin g emergency’ ”). But Davis and Hammondid not present medical emergencies, despite some injuries to the victims. 547 U. S., at 818, 8 20. Thus, we have not previously considered, much less ruled out, the relevance of a victim’s severe injuries to the primary purpose inquiry.18MICHIGAN v. BRYANT Opinion of theCourt 

### Taking into account the victim’s medical state does not , as the Michigan Supr eme Court below thought, “rende[ r] non-testimonial” “all st atements made while the police ar e questioning a seriously injured co mplainant.” 483 Mich. , at 149, 768 N. W. 2d, at 74. The medical condition of the victim is important to the primary pu rpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in respon ding to police question s and on the lik elih oo d that any purpose f o rmed would necessarily be a testimonial on e. The victim’s medical state also provides important cont ext for firstresponders to judge the existenc e and magnitude of a continuin g threat to th e victim, themselves, and the public. As the Solicitor General’s brief observes, Brief for United States as Amicus Cu riae 20, and contraryto t h e Michigan Supreme Court’s claims , 483 Mich., at 147, 768 N. W. 2d, at 73, none of this suggests that an e m ergency is ongoing in every place or even justsurrounding the victim for the entire time that the perpetrator of a violent crime is on the lo ose. As we recognized in Davi s , “a conversation which begin s as an interrogation to determine the need for emergency assistance” can “evolve into testi m onial stat e ments.” 547 U. S., at 828 (internal quotation marks o m it

ted). This evolution may occu r if, for example, a declarant provides police with information that makes clear that what appeared to be anemergency is not or is no longer an emergency or that wh at appeare dto be a public threat is actually a private dis p ute. It could also occur if a pe rpe trator is disarmed, surrenders, is apprehended, or, as in Davis , flees with little prospect o f posing a threat to th e public. Trial courts can determine in the first instance when any transition from nontes timonial to testimonia l occurs, 10

### andexclude “the portions of any statement that

——————

10 Recognizing the evolutionary pote ntial o f a situa t ion in criminal la w is not un iq ue to the Confronta t ion Cla u s econtext. We noted in19 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evi

dence.” Id. , at 829. Finally, our discussion of the Michi g an Supre m e Court’s misunderstanding of what Davi s meant by “ongoing emer

gency” should not be taken to imply that the existence vel nonof an o n going emergency is dispositive of the testimo

nial inquiry . As Dav i s made clear, whether an ongoing emergency exists is simply one factor—albeit an important factor—tha tinforms the ultimate inquiry regarding the “primar ypurpose” of an interrogation. Anot her factor th e Michigan Supreme Court did not sufficiently account for is the importance of informalityin an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, althou gh formality suggests the absence of an em ergency and therefore an increased likelihood that the pu rp ose of the interrogatio n is to “establish or prove past events potentially relevant to later crimi nal prosecution,” id. , at 822, informality does not necessarily indicate the presence of an emergency o r the lack of testimonialintent. Cf. id. , at 82 6 (explainin g that Confrontation Clause requir e ments cannot “readily be evaded” by the parties delib erately k eeping the written product of a ninterroga tion informal “instead of having th e declarant s i gn a depo sition”) . The court bel o w, howeve r, too readily dismissed t h e informality of the circumstance s in this case in a single brief footn o te and in f a ct seems to have sugge sted that th e encounter in this case was formal

. 483 Mich., at 150, n. 16, 768 N. W. 2d, at 75, n. 16. As we

—————— Davisthat “[ j]ust a s , forFift h Amendm ent purposes, ‘pol ice officers ca n and will di sti n guish almostinstinct ively between quest i ons necessar y to sec u r ethei rown safetyorthe safetyof the pub lican d qu estion s designed solel yto elicit tes t imonial evide n ce from a suspect, .

. . trial courts will recognize the point atwhich, for Sixth A m endment pu r poses, s t a t em en ts inr e spo n se to in ter r o g a tion s bec o m etest imon ia l. ” 547 U. S., at 8 29 (qu o tin g New York v. Qua r les , 467 U. S., at 658–6 59).20 MICHIGAN v. BRYANT Opinion of theCourt 

### explain further below, the questioning in this case oc

curred in a nexposed, public area, prior to t h e arrival of emergency medical services, and in a disorga n ized fashion. All of those facts ma ke this cas e distinguishable from the formal station-house interrogation in Cr awford. See Davis , 547 U. S., at 82 7. C In addition to the circumstances in which an encounter occurs, the statements and ac tions of both t h e declaran t and interrogators prov ide objective evidence of the pri

mary purp ose of the interrogatio n . See, e. g . , Davi s , 54 7 U. S., at 8 27 (“[T]he nature of what was asked and an swe redin Davis , a g ain 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 Cra wford) what had happened in the past” (first emphasis added)). The Michigan Supre m e Court did, at least briefly, con d uct this inquiry. 483 Mich., at 1 44–147, 76 8 N. W. 2d, at 71–73. As the Michigan Supr eme Court correctly r e cognized, id. , at 140, n. 5, 768 N. W. 2d, at 6 9 , n. 5, Dav i s requires a combined inquiry that account s for both the declarant and the interrogator. 11 

### In many instances, the p r imary pur

-

——————

11 Some portions of Davis , h o wever , haveca us ed conf us ion ab o ut whether the i n quiry prescrib es examinat i o n of one participant to the exclusion of the other. Davis ’ la ngua ge indica ting tha tasta t ement’s testi m onialornontestimoni al natur eder i v e s fr om “the pr imar ypur pose of the in t erro gation ,” 547 U. S., at 8 22 (emph a sis added), c o u l d be r e ad to sug g e s tthat the r e lev a nt pur p ose i s that of the interrogator. I n cont ra s t , footnot e1 in Dav i sexplains, “i t is in the fin a l ana l ysis th e dec l ar an t’ s st atemen t s , n o t th e in ter r o g a tor ’ s questi ons, that th e Confronta t ion Cla u s ereq u ires us to eva l ua te.” Id. , at822– 82 3, n

. 1

. Bryant draws on the footnote to ar g u e that the pr imar y purpose inquiry must be c o nduc ted solelyfr om the perspective of the declarant, an d ar g u es ag ain s t adoptionof a pu r p os e-of- t he-int erroga t o r pers pect ive

. Br ief forRespon den t10–13; see also Br ief forRich ar d D. Fr iedmanas Am icus Cu riae 5–15. Bu tt h is st atemen t infootn o te 1 o f Davis mer e l y21 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### pose of the interrogati on w ill be most accurately ascer

tained by looking to the conten ts of both the questions and the answers. Togive a nextreme e x ample, if t h e policesa y to a victim, “Tell us who did this to you so that we ca n arrest andprosecute them,” the victim’s response t hat “Ric k did it,” appears purely accu satory because by virtue of the phra sing of the question, the victim ne cessarily has prosecution in mind when she ans wers. The combined approach also ame l iorates problems that could arise from looking solely t o one participant. Pre

dominant among these is the problem of mixed motives on the part of both int e rrogators and declarants. Police officers in our society f unctionas both first re sponders and criminal investigators. Their dual responsibilities ma y mean that they act with diffe rent motives simultaneousl y or in quick succession. See New York v. Quar les , 467 U. S. 649, 656 (1984) (“Undoubtedly most police officers [deci d

ing whethe r to give Miranda warnings in a po ssible emer

gency situa t ion] would act out of a host of different, in

stinctive, and largelyunverifiable motives—their own safety, the safety of ot hers, and p e rhaps as well the desire to obtain incriminating evidence from the suspect”); see also Davis , 547 U. S., at 839 (T HOMAS 

### , J., concurring in judgment i npart and dissenting in part) (“Inmany, if not most, cases where police respond to a reportof a crime, whether pu rsuant to a911 call from the victim or other

wise, the purposes of an interrogation, viewed from the perspective of the polic e, are both to respond to the emer

-

—————— acknowledges that the Co nfrontatio n Clause is not i m plicatedwhen statements are offered “for purposes other tha nes tab l is hing the tr uth of the ma tter asser t ed.” Cr awford , 541 U

. S., at 60, n

. 9

. Anin ter r o g a tor ’ s qu estion s , un like a dec l ar an t’ s an sw er s, do n o t asse r tth e tr u t h of anymatter

. The lang uag e in the f ootnot ewas not meant to deter m ine how the c o ur t s ar e to a sse ss the natu re of the declarant’s purpose, but m e rely t oremind rea d ers t h a tit i s the statements, andnot the ques tions, that must be ev aluate d under the Sixth Amendment.22 MICHIGAN v. BRYANT Opinion of theCourt 

### gency situa t ion and to gather evid ence”). Victims are also l i kely to have mixed motives when the y mak e statements to the police. During an ongoing emer

gency, a vic t im is most likely to wa nt the threa tto her and to other potential victims to end, but that do es not neces

sarily mean that the victim w ants or envisions prosecution of the assailant. A victim may want the attac k er to be incapacitated temporarily or re habilitated. Alternative l y, a severely injured victim may have no purpose at a ll i n answering questions p o sed; the answers may be simply reflexive. The victim’s injuries could be so debilitating as to prevent her from thinking s u fficiently c l early to un

derstand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of fu

ture prosec ution. 12 

### Taki ng into account a victi m ’s injuries does not transform this objecti ve inquiry into a subjective one. The in quiry is still objective because it focuses on the understanding and pu rpose of a reasonable victim in the circumstan ces of the actual victi m—circums tances that prominently include the victim’s physical state. The dissentsuggests, post , at 3–4 (opinion of S CALIA 

### , J.), that we intend to give contro lling weight to the “intentions of the polic e,” post , at 4. That is a misreadin gof our opin

ion. At t r ial, the declarant’s sta t ements, not the interro

gator’s que stions, will be introd u ced to “es t ablis[h] the truth of the matter asserted,” Cr a wford , 541 U. S., at 60 , n. 9, and m u st therefore pass the Sixth Ame n dment test.

——————

12 Insu c ha situ ation , th e se v e r e injuries of the victim would un

doubtedly also weigh o nthecredibility and reliabil i ty t h at the trier o f fac twould affo r dto the st ate m ents. Cf. Adv i sor yCommit t ee’ s Note s o n Fed. Ru le Ev id. 803(2), 28 U. S. C. App., p. 371 (n otin gth at alth ou gh the “theor y” o f the ex c i ted utter a nc e ex ception “ha s be en c r i tic i zed o n the g r ound that ex c i tementimpair s [t he] a ccura c yof ob s e rva t ion as well as elim i n ating conscio u s fabricat ion , ” it “finds su pport in cases with ou t n u m ber” (c itin g6 J

. Wig m or e, Ev iden c e§175 0 (J . Ch adbou r n rev. 1976))).23 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### See n. 11, supra . In determining whether a declarant’s statements are testimonial, courts should lookto all of the relevant ci rcumstance s . Even J U S TICE 

### S CAL IA 

### concedes that the in terrogator i s relevant to this evaluation, post , at 3, and we agree that “[t]he identity of an interrogato r, and the con t ent and te nor of his questions,” ibid. , can illu

minate the “primary p u rpose of t h e interrogation.” The dissent, see post , at 3–5 (opinion of S CALI A 

### , J.), criticize s the complexity of our approach, b u t we, at least, are un

willing to sacrifice accuracy for simplicity. Simpler is not always better, and courts makin ga “prima ry purpose ” assessmentshould not be unjustifiably restrained from consulting all relevant information, including the s t ate

ments and actions of interrogator s . Objectivelyascertaining the pri m ary pu rp ose of the interrogation by exami n ing the st atements and actions of all particip ants is also the approa ch most co nsistent with our past ho ldings. E. g. , Davi s , 54 7 U. S., a t 822–823, n. 1 (noting that “volunteered testimony” is still te stimony and remains subject to the requirements of the Confrontation Clause). IV As we su ggested in Da vis , when a court mustdetermine whether th e Confrontation Clause bars the a d mission of a statement at trial, it should determine the “primary pur pose of the interrogati on” by obje ctively eval uating the statements and actions of the parties to the encounter, in light of th e circumst ances in which the interrogat i on occurs. The existence of an e m ergency o rthe parties’ perception that an emergency i s ongoing is among the most important circum s tances that courts mu st take into account in determining whether an interrog a tion is tes

timonial b e cause statements made to assi st police i n addressing an ongoin g emergency presumably lack th e testimonial purpose that would subject them to the24MICHIGAN v. BRYANT Opinion of theCourt 

### requiremen tof confron t ation. 13

### As t h e context of this case brings into sharp relief, the existe nce and du ration of a n emergency depend on the type and scope of danger posed to the victi m, the police, and the public. Applying this analysis to the facts of this case is m o re difficult tha nin Davi s because we do not have the luxury of reviewing a transcri pt of the conversation between the victim and the police officers. Fu rther complicating ou r task is the fact that th e trial in t h is case occurred before our decisions in Cra wfordand Dav i s . We therefore review a record th at was not develope d to ascertain the “primar y purpose of the interrogation.” We first examine the c i rcumstanc es in which the inter

rogation occurred. The parties disagree over whethe r there was an emergency when the police arrived at the gas station. Bryant argues , and the M i chigan Supreme Court accepted, 4 83 Mich., at 147, 768 N. W. 2d, at 73, that there was no on going emergency because “there . . . was n o criminal conduct oc cur r ing. No s h ots were b e ing fired, no one was se en in poss ession of afirearm, nor were any witnesses seen coweri ng in fearor runnin gfrom the scene.” Brief for Respondent 27. Bryan t , while concedin g that “a seri ous or life-t h reatening injury c r eat e s a medical emergency for a victim , ” id. , at 30 , further argues that a declarant’s medical em ergency is not relevant to the ongo

-

——————

13 Of co urs ethe Confronta t ion Cla u s eis not the only b a r to a d mis s i

bili tyof h e ar s a yst atemen t s at tr i a l. State and federal r u les of evidence prohibit the i n troduction of hearsay, subj ec t to ex c e ptio ns. Consis tent with those rul e s, the DueP r ocess Cl auses of the Fifth and Fourteenth Amendments mayc o nstitut ea fur t her barto admiss ionof, for ex ample, unreliable evidence. See Mon t an av. Egel h of f , 518 U. S. 37, 5 3 (19 9 6 ) (plurality opi n ion) (“[E]rro neous ev ident i ary rulings can, in combina

tion, rise to the level of a due process violation”); Duttonv. Evans , 400 U. S. 74, 96–9 7 (19 70) (H ar lan , J., c o n c u r r i n ginr e su lt) (“[T]h e Fift h and FourteenthAmendments’ command s th at feder a l an d state tr ia ls , r e spec tiv e ly , must be c o nduc ted in a cco rdance with due process of law ” is the “st a ndar d” bywhic h to “tes tfeder a l a n d state r u les of ev idenc e ”).25 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### ing emergency determi nation. In contrast, Michigan and the Solicitor General explain that when the police responded to the call that a man had been shot a n d found Covington bleeding on the gas station parkinglot , “theydidnot kno wwho Co vington was, whether th e shooting had occurre d at the gas station or at a different location, who the assailant was, or whether th e assailant posed a cont inuing threat to Covington or oth

ers.” Brief for United States as Amicus Cu riae15; Bri e f for Petitioner 16; see also id. , at15 (“[W]hen an officer arrives on the scene an d does not k n ow where the perpe

trator is, whether he is armed, whether he might have other targe t s, and wh ether the v i olence migh t continue at the scene or els e where, interrogation that has the pri

mary pu rpo s e of establishing those facts to ass e ss the situ

ation is designed to meet the ongoing emergency and is nontestimonial”). The Michigan Supreme Court stated that the police asked Covi ngton, “wh a t had happened, who had shot him, and where the shootin g 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 testi m ony of fiv e officers who responded to the scene and found Covington. The officers’ testimony is essentiall y consistent but, at the same time, not specific. The officers basically agree on what information they learned from Covington, but not on the ord e r in which they learne d it or onwhethe r Covington’s stat ements 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 m e .” 14

——————

14 See App. 76 (t estimony of Officer McCallis ter); id. , at 101, 113– 11 4 (testi monyof Sg t. Wentur ine); id. , at 127, 131 –1 33 (te s ti mon yof Offic e r S t uglin). Covi ngton told the mthat Rick ha d s h ot him th rough the b a c k door of Rick’s house, id. , a t12 7–1 28 (te s timon yof Offic e rStu glin), loca t e d att h e corne rof Penn s y lva n iaa n d La ura , id. , at 102 ( t es timon y26 MICHIGAN v. BRYANT Opinion of theCourt 

### As explaine d above, the scope of a nemergency in terms of its threatto individu als other than the initial assailant and victim will often depend on the type of dispute in

volved. Nothing Covington sa id to the police indicated that the cause of the s h ooting was a purely private dispute or that the threat from the shooterhad ended. The record reveals little about the motive for the shooting

. The police officers who spoke withCovington at the gas s t ation testi

fied that Covington did not tell t h em what words Covi ng ton and Ri ck had exch anged prior to the shooting. 15

### Wh a t Covington did tell the officers was that he fled Bryan t ’s back porch , indicating that he perceived an ongoin g threat. 16

### The police did not know, and Covington did not tell them, whether th e threat was limited to him. The

—————— of S g t. Wenturine), a n d tha t Covington rec o gnized Rick by his voice, id. , a t 1 2 8(testimony of Offic e r S t uglin). Covington a l so gave them a physical description of Rick. Id. , at 84–8 5 , 93–9 4 (tes ti mon yof Offic e r McAllister); id. , at 10 3, 11 5 (testi mon yof Sgt. Wen t u r ine); id. , at 134 (tes timony of Officer S t ugli n).

15 See id. , at 114 (“Q Did he tell you what Rick s a id? A He s a id they were having a convers a tion. Q Did het e l ly o uw h a tR i c ks a i d ? A H e did not” ( t es ti monyof Sg t. Wentur ine) (par ag r a ph br eaks omi tted)); s e e also id. , at 79 (testi mony of Officer McAllister); id. , at 128 (tes timon yof Officer S t ugli n).

16 See id. , at 12 7–1 28 (“A He said h e ’ dwen tu p , h ewent u p to th e bac k doorof a h o u s e; th at a per s on hes a id he k n ew, a n dhe wa s knock

ing and hewa s knocking on the door he said he’d talke dto somebody t h rough t h e door. He s a id h erecogniz ed the voice. Q Did he say who i t was that he recognized the voice of? A T h a t ’ s w h e nh et o l dm ei tw a s , he s a id it was Rick a/k/a Bu s t er. Q And di d he s a y wha tthe conve r s a tion was abou tatthe door ? A I don’ t, I don’ t believ es o . Q All r i gh t

. And did he say what happened there, whether or not they had a co n vers a t ion or n o t, did he s a y wha tended up ha ppening? A He s a id wha t ha ppened wa s tha the hea r d as h ot a n d then he star ted to tur nto get off the porch and then another one an d then that’ s when he was hit by a g unshot” (te s timonyof Off i c e rStuglin) (par agr a ph br eaks om itte d)). Unlike the dis s ent’s app a rent ab ility to rea dCovington’s mind, post , at 6 (opinion of S CALIA , J.), we rely on the av ailable evidence, which s u gges t s t h a t C o vingt o n per c eived a non go ing t h rea t

.27 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### potential scope of the disput e and therefore the emergency in this cas e thus stretches more broadly than those a t issue in Davis and Hammon and encompasses a threa t potentially to the police and the public. This is also the first of our post- Cr awfordCon f rontation Clause cases to involve a gun. The physical separation that was su fficient to e n d the eme r gencyin Hammonwa s not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant’ s house. Bryant’s argu ment that there was no ongoing emergency because “[n]o shots were being fired,” Brief for Respondent 27, surely construes ongoing em ergency 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 sh ots, no on e would s a y that the emergency ceases during the pause. That is an extreme example and not the situation here, but it serves to highlight the im

plausibility, at least as to certain weapons, of construing the emergency to last only precisely as long a s the violen t act itself, as some have construed our opinion in Davis

. See Brief for Respondent 23–25. At no point during the questionin gdid either Covingto n or the police k n ow the locationof the shooter. In fact, Bryan twas not at home by the time the police searched his house a tapproxim ately 5:30 a.m. 483 Mich., at 136, 768 N. W. 2d, at 67. At some po int between 3 a.m. an d 5:30 a.m., Bryan tleft his house. At bottom, there was a n ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covingto n within a few blocks and a few minutes of the locationwhere the police foun d Covington. 17

——————

17 It ha rdly b e a r s mention tha tthe emergenc y s i tua t ion in this ca s e is readily dist inguishable from the “tr eas o nous cons pira cies of unkno wn28MICHIGAN v. BRYANT Opinion of theCourt 

### This is not to suggest that the emergency continued until Bryan twas arrested in Calif ornia a yea rafter the shooting. Id. , at 137, 768 N. W. 2d, at 67. We need not decide precisely when the emergen c y ended because Cov

ington’s encounter with the police and all o f the state

ments he made during that int e raction occurred wit h in the first fe w minutes of the police officers’ arrival an d well before they secured the scene of the shooting—the shooter’s la st k n own location. We reiterat e, more over, that the e x istence vel nonof an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is wheth e r the “pri

mary purpose of the interrogatio n[was] to enable police assistance to meet [the ] ongoing e m ergency.” Davis , 547 U. S., a t82 2. We turn now to tha tinquiry, as informed by the circumstances of the ongoing emergency just de

scribed. The circumstances of theencounter provide im

portant context for un derstanding Covington’s statements to the police. When the police arrived at Co vington’s side, their first question to him was “What happened?” 18

### C o v ington’s response was either “Rickshot me” or “I was shot,” followed very quickly by an identification of “Rick”

—————— scope, aimed at ki lling or overthro wing the king,” post , at 11, ab ou t whichJ US TI CE S CALIA’s dis s e nt is q u ite concerned.

18 Althoughthe dissent c l a i ms other w ise , post , at 7 (opinion of S CALIA , J.), at least on e offic e rasked Co v i ng ton somethingakin to “how was h edoin g . ” App. 131 ( t es timon yof Offic e rStu glin) (“ A I appr oac h ed the subject, the victim, Mr. Covington, o nthe grou nd a n d ha d as ked something like what happe ned or ar e you okay , somethingto that line. . . . Q S o you as ked this man how ar e you, how are you doing? A Well, ba sic a ll yit’ s , y o uknow, wh at’ s wr on g, y o ukn ow” (par ag r a ph breaks omitte d)). The officers also tes t ifi e d about theirasse ss ment o f Covington’s w o unds

. S ee id. , at 35 (suppression hearing testimony of Officer Brown) (“[H]e hadblood . . . on the front of his body”); id. , a t75 (t es t i m o ny of Officer McC a llis t er) (“It appear ed h eh a d a sto m ac h wound of agu ns hot”); id. , at 132 ( t es timon yof Offic e rStu glin) (“Q Did you s ee the w o und? A Yes , I did. Q You ha d to move some clothing to do th at? A Ye s” (par ag r a phbr eaks omit te d)).29 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### as the shooter. App. 7 6

. In respo n se to furth er questions, Covington explained that the sh ooting occu rred th rough the back door of Brya nt’s house and provided a physical description of the shooter. When he made the statements, Covington was lying i na gas station parking lot bleedi n g from a mortal gunshot wound to his abdomen. His an

swers to the police officers’ questions were punctuate d with questions about when emergency medical services would arrive. Id. , at56–57 (su p pression hearing testi

mony of Officer Brown)

. He was obviously in considerable pain and had difficulty breathing and talking. Id. , at 75, 83–84 (testi mony of Officer McCallister); id. , a t101, 110– 111 (testim o ny of Sgt. Wenturine); id. , at 126 , 137 (testi

mony of Officer Stuglin). From this description of his condition a n d report of his statem ents, we cannot say tha t a person in Covington’s situation would have had a “pri

mary purpose” “to est ablish or p r ove past e v ents poten

tially relevant to later criminal prosecution.” Davis , 54 7 U. S., at 82 2. For their p a rt, the police responded to a call that a man had been shot. As discussed above, they did not know why, where , or when the sh ooting had occurred. Nor did they k n ow the locati on of the s h ooter or a n ything else about the circumstan ces in which the crim e occurred. 19

——————

19 Contra ry to the dis s e nt’s sugges t ion, post , at 8 (opin i o nof S CALIA , J.), and despi t e the fac ttha tth e record was developed prior to Davis ’ focus on the e x istence of an “ongoi ng em e r gen c y,” t h e r e cord co nt a i ns some te sti m o n yto suppor tthe idea thatthe polic e offic e r s wer e c o n cerned about the location of the shoot er when they arrived on the scene and thus to sug g e st that the pur p os e of the questioning of Covingt o n was to determine the shooter’s locati on. See App. 1 36 (testimony of Officer S t uglin) (s t a ting t h a tupon a rriva l officers q u es t i oned t h e gas s t ation clerk ab o ut whether the s h oot ingoccu rred int h e ga s s t a t ion pa rking lot and ab o ut concern for s a fety); s ee a l s o ibid

. (testi mony of Officer S t uglin) (“Q . . . So you have some concern, there may be a per s onwitha g u norsomebody , a sh ooter right there in the immediate ar ea? A Su r e , y e s. Q An d youwan tto see th at th at ar e ag e ts sec u r e d?30 MICHIGAN v. BRYANT Opinion of theCourt 

### 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 7 1 —were th e exact type of questions necessary t o allow the police to “ ‘assess the situation, the threat to t h eir own safety, and possible danger to th e potential victim’ ” and to the publ ic, Dav i s , 5 47 U. S., a t 832 (quotin g Hiibelv. Sixth Judicial Dist. Court of Nev., H

u mboldt Cty. , 542 U. S. 177, 186 (2004)) , including to allow them to ascertai n“whetherthey would be encoun

tering a violent felon,” 20 

### Davis , 547 U. S., at 827. In other words, they solicited t h e information necess a r y to enable them “to meet an ongoi n g emergency.” Id. , at 822. Nothing in Covington’s resp onses indicated to the police that, contr a ry to their expectati on upon responding to a call reporting a shooti n g, there was no emer gency or that a prior eme r gency had ended. Covington did i n dicate tha t he had been shot at another location about25 minutes earlier, but he did not k n ow the location of the shooter at the time th e police arr i ved and, a s far as we can tell fro m the record, he gave no indica tion that the shooter, having shot at him twice, would be satisfied that Covington wa s only wounded. In fact, Covi ng ton did not i n dicate an y possible m o tive for t h e shoo ting, 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. . . produ c e nontestimonial state

-

—————— A Correct

. Q For you rs a fet ya s well a s everyo ne els e ? A Correct” (par ag r a phbr eaks om itted)) ; id. , at 82 (te s timony of Officer McCallis

ter)

. But see id. , at 83 (cross-examination of Officer McAllis ter) (“Q You didn’t, you didn’t look around and say, gee, there mi ght be a shooter around here, I better keep an eye open? A I d i d not, no. That could hav ebeen my par t nerI don’ t know” (par agr a phbr eaks omitted)).

20 Hiibel , like our post- CrawfordConfronta t ion Cla u s ecas e s, involved domestic violence, which e x plains th e Co urt’s focus on the security of the victim andthe police: they were the o n ly parties pot e ntially threat

en ed byth e assail an t. 54 2 U. S., at 186 ( n otin gth at th e c a se in v o lv ed a “domes ticass a u lt”).31 Cite as: 56 2 U

. S. ____ (2011) Opinion of theCourt 

### ments.” Id. , at 832. The initial inquiries in this case resulted in the type of nontesti monial sta t ements we contemplated in Davis

. Finally, we consider the informalit y of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried 911 call in Dav i s than to the structured, station-house interview in Craw

ford

. As th e officers’ tr ial testimony reflects, t h e situation was fluid and somewhat confus ed: the officer s arrived at different times; apparently each, upon arrival, asked Covington “what happened?”; and, contrar yto the dis

sent’s portrayal, post , at 7–9 (opinion of S CALIA 

### , J.), they did not con d uct astru ctured in te rrogation. App. 84 (t es timony of Officer McCallister) (explaining duplicate ques

tioning, especially as to “wha t hap pened?”); id

. , at 101–10 2 (testimony of Sgt. Wenturine) (same); id

. , at 126–127 (testimony of Officer Stuglin) (same). The informality suggests t hat the in terrogators’ primar y purpose was simply to a ddress wha tthey perc eived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possiblefuture prosecutorial use of his stat ements. Because the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate tha tthe “p rimary pu rpose of the inter

rogation” 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 lo

cation of the shootin g were no t testimonial hearsay. The Confrontation Clause did notbar their admission at Bryan t ’s tri al. * * * For the foregoing reasons, we h o ld that Covington’s statements were not testimonial and that the i r admission32 MICHIGAN v. BRYANT Opinion of theCourt 

### at Bryan t ’s trial did not violate the Confrontation Clause. We leave for the Michigan cour t s to decide on remand whether the statement s ’ admissio nwas otherwise permit

ted by state hearsay rules. The ju dgment of the Supreme Court of Michigan is vacated, and t h e case is remanded for further proc eedings not inconsistent with this opinion. It is so orde red. J USTICE 

### K AGAN

### took no part i nthe cons ideration or decision of t h is case._________________

_________________ 1 Cite as: 56 2 U

. S. ____ (2011)
T HOMAS , J

. , co ncu rrin gin j u dgm e nt 

# SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 50 

### MICHIGAN, PETITI ONER v. RI CHAR D PE RRY BRYA N T ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF MICHIGAN [Febr u ar y28, 201 1] 

### J USTICE 

### T HOMA S 

### , concurring in th e 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 th is conclusion because Covington’s questioning by police lacked sufficient formality and so

lemnity for his statements to be considered “testimonial. ” See Crawfo rdv. Washingt on , 541 U. S. 36, 68 (2004). In determining whet her Covin gton’s sta t ements to police implicate the Confrontation Clause, the Cour t evaluates the “ ‘p rimary purpose’ ” of the interrogatio n . Ante , at 12. The majority’s an alysis

⎯ which relies on, inter ali a , what the police k n ew when they arrived at the scene, the specific questions they ask e d, the particular informationCovington conveyed, the weapon involved, and Covington’s medical condition

⎯ illustrates the uncer

tainty thatthis test c r eates for law enforcement and t h e lower cour ts. Ante , at 25–31. I have criticized the primary-pu rpose test as “an exercise in fiction” that is “disconnect ed from history” and “yields no predictable results.” Davis v. Washingt on , 547 U. S. 8 13, 839, 838 (2006) (opinion concurring in ju dgment in part and dis

senting in part). Rather tha nattempting to reconstruct the “primary purpose” of the particip ants, I would consider the extent to which the interrogation resembles those historical prac

-2 MICHIGAN v. BRYANT
T HOMAS , J

. , co ncu rrin gin j u dgm e nt 

### tices that the Confrontation Clause addressed. See, e. g. , id. , at 835–836 (describing “practi c es that occurred unde r the English bail and co mmittal sta t utes passed during th e reign of Queen Mary”). As the majority notes, Covingto n interacted with the police under highly informal circum

stances, wh ile he bled from a fata l gunshot wound. Ante , at 19–20, 31. The police questioning was not “a formalized dialogue,” did not res u lt in “for malized tes t imonial m a terials” such as a depo sition or affidavit, and bore no “indicia of solemnity.” Davis , supra , at 840, 83 7 (opinion of T HOMAS 

### , J.); see als o Gilesv. California , 554 U. S. 353 , 377–378 (2008) (T HOMAS 

### , J., conc urring). No r is there any indication that the statements were offered at trial “in order to evade confrontation.” Da vis , supr a , at 840. This interrogation bears little if any resemblance to the histori

cal practice s that the Confrontation Clause aimed to elim i

nate. Covington thus did not “bea[r] testimony” against Bryan t , Cra wford , supr a , at 51, an d the introduction of his statements at trial di d not impl icate the Confrontation Clause. I c o ncur in the judgment._________________

_________________ 1 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

# SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 50 

### MICHIGAN, PETITI ONER v. RI CHAR D PE RRY BRYA N T ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF MICHIGAN [Febr u ar y28, 201 1] 

### J USTICE 

### S CALIA 

### , dissenting. Today’s tal e—a story of fi ve officers conducting suc

cessive exa m inations 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 murde r er somewhere on the loose—is so transparently false tha tprofessing to believe it demeans this institution. But r e aching a patently incorrect conclu

sion on the facts is a re latively benign judicial mischief; it affects, after all, only the case at hand. In its vain attem p t to make th e incredible plausible, however—or perhaps a s an intended second goal—today’s opinion distorts our Confrontation Clause jurispruden c e and leaves it in a shambles. Instead of clarifying the law, the Court mak e s itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawfordv. Was h ington , 541 U. S. 36 (2004), I dissent. I A The Confrontation Clause of th e Sixth Amendment, made binding on the States by the Fourteenth Amend

ment, Pointer v. Texas , 380 U. S. 400, 403 (19 65), provides that “[i]n all criminal p r osecutions, the accused shall enjoy2 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### the right .

. . to be confronted wit hthe witne sses against him.” In Cr awford , we held that th is provision guarantees a defendant his common-law righ t to confron tthose “wh o ‘bear testimony’ ” again s t him. 541 U. S., at 51

. A witness must deliver his testimony against the defendant in per

son, or the prosecution must prove that the witness is unavailable to appear at trial a n d that th e defendant has had a p r ior opportunity for cross-examin ation. Id., at 53–54. Not all hea r say falls within the Confrontation Clause’s grasp. At trial a witn ess “bears testimony” by providing
“ ‘[a] solemn declaration or affirmation . . . for the purpose of establish i ng or proving some fact.’ ” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English La n guage (1828)). The C o nfrontation Clause p r otects defen

dants only from hearsay statements that do the sa me. Davis v. Washingt on , 547 U. S. 813, 823–82 4 (2006). In Davis , we explained how to identify testimonial hearsa y prompted b ypolice questioning inthe field. A statement is testimonial “when the circumstances objectively indi

cate .

. . tha tthe p r imary purpose of the inter r ogation is to establish orprove past events potentially relevant to late r criminal prosecution.” Id., at 822

. When, however, th e circumstan ces objectively indi cate that the declarant’s statements were “a cryfor help [ o ] rthe provision of infor

mation enabling officers immediately to end a threatening situation,” id., at 832, they bear little resemblance to in

court testi m ony. “ N o ‘witness’ g oes into court to procla im an emergency and seek help.” Id., at 828. Cra wfordan d Davis di d not ad dre ss whose p e rspective matters—t he declarant’s, the i n terrogator ’ s, or both— when assessing “the primary purpose of [an] interroga

tion.” In those cases th e statements were testimonial from any perspe ctive. I th ink the sa me is true here, but be

cause the Court picks a perspective so will I: The decla

rant’s inten tis wha tc o unts. In-c ourt testim ony is more3 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### than a narrative of past events; it is a solemndeclaration made in the course of a criminaltrial. For an out-of-cour t statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an u n considered or offhand remark; a n d he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused. 1 

### See Friedman, Grappli n g 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 Cra wford , supra, at 51. The hidden purpose of an interro

gator cann ot substitute for the declarant’s intention a l solemnity or his understanding of how his words may be used. A declarant-focused inq u iry is also the only in quiry that would work in every fact patte rn i m plicating the Confron

tation Clause. The Clause applie s to volunteered testi

mony as well as statements solicited through police inter

rogation. See Davis , supra , at 82 2–823, n. 1. An inquiry into an officer’s purpo s es would make no sense whena declarant b l urts out “ R ick 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 off i cer’s intent—when th e officer asks “what happened” before the declarant make s his accusat i on. (This does not mean the interrogator is irrelevant. The identity of an in t e rrogator, a n d the con

tent and tenor of his questions, can bear upo nwhether a declarant i n tends to make a solemn statement, and envi

sions its use at a crim i nal trial. But none o f this mean s that the int e rrogator’s purpose matters.) In an unsuccessful attempt to make its finding of emer

-

——————

1 I remain agnostic ab out w h ether an d when state m ent s to nonstate actors are tes t imonial. See Davis v. Washingto n, 547 U. S. 813, 82 3 , n . 2 (2006).4 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### gency plausible, the Court instead adopts a test that looks to the purposes of bot hthe polic e and the declarant. I t claims that this is demanded by necessity, fretting that a domestic-violence victi m may want her abuser brief l y arrested—p resumably to te ach him a lesson—but not desire prosecution. See ante, at 22. I do not n eed to prob e the purposes of thepoli ce to solvethat problem. Even if a victim spea ks to the police “to establish or pro v e pa st events” solely for the purpose of getting he r abuser a r rested, she surely knows her account is “potentially rel

evant to later criminal prosecution” shouldone ensue . Davis , supr a , at 822. The Court also wrings its hands over the possibility that “a severely injured vict im” may lack the capac i ty to form a purpose, and instead answer questions “reflexive[ly].” Ante , at 2 2

. How to assess whether a declarant with diminished capacity bo re testimon y is a diffic u lt question, and one I do not need to answer today. But the Court’s proposed answer—to su bstitute the intentions of the police for the missing intentions of the declarant—cannot be th e correct one. When the declarant has diminished capacity, focusing on the interro gators ma ke less sense, not more. The inquiry under Cra wfordturn s in part on the actions and statements of a declarant’s audience only becau s e they shape the declarant’s perception of why his audienc e is listening and therefore influence his purpos ein making the declara t ion. See 541 U. S., at 51. But aperson wh o cannot perceive his own purposes certainly cannot per

ceive why alistener might be interested in what he has to say. As far as I can tell, the Court’s substi tuted-inten t theory “has nothing to be saidfor it except that it can sometimes make ourjob ea sier,” Jermanv. Carlisl e, McNelli e, Rini, Kramer& Ulrich, L. P. A. , 559 U. S. ___ , ___ (2010) ( S CALI A 

### , J., concurring in part andconcurrin g in judgment) (slip op., at 2). The Court claims one affirmative virtue for its focus on5 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### the purpose s of both th e declarant and the pol i ce: It “ame

liorates problems that .

. . arise” when decl arants have “mixed motives.” Ante , at 21. I a m at a los s to know how. Sorting out the primarypurpose of a declarant with mixed motives is sometimes difficult . But adding in the mixed motives of the police o n ly compounds the problem. Now courts will have to sort through two sets of mi xed motives to determine the primary purp ose of an interrogation. And the Court’s soluti on creates a mixed-motive problem where (under the proper theory) it does notexist—viz., where the police and the declarant each have one motive , but those motives conflict. The C o urt does not provide an answer to this glaringly obvious problem, probably be

cause it does not have one. The only virtue of the Court’s approach (if it can be misnamneda virtue) is that it leav es judges free to reac h the “fairest” result und er the totality of the cir c umstances. If the dastardly polic e trick ad e clarant into giving a n incriminating statement against a sympathe tic defendant, a court canfocus on t h e police’s intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court canfocus on whatever p e rspective is necessary to declare damning hearsay nontestimonia l

. And when all else fa ils, a court can mix-and-match per

spectives to reach its desi red outcome. Unfortunately, under this malleable a p proach “th e guarantee of confron

tation is n o guarantee at all.” Gilesv. California , 554 U. S. 353, 375 (2008) (plurality). B Look ing to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been sh ot, Detroit police responded to a 9 1 1 call reporting that a gunshot victim had appeared at a neighborhood gas station. Th ey quickly arrived at th e scene, and in less than 10 minutes five diff erent Detroit6 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### police officers questioned Covington about the shooting. Each aske d him a similar battery of questions: “what happened” and when, App. 39, 12 6, “who shot” the victi m,” id., at 22, and “where” did the shooting take place, id., at 132. See also id., at 1 13. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, id., at 134, “[h]ow mu ch does he weigh,” ibi d

. what is the exact address or ph ysical description of the house where the shooting took place, and what chain of events le d to the shooting. The battery relented when the parame dics arrivedand be gantending to Covington’ s wounds. From Covington’s pers pective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryan t

. He knew the “threatening situation,” Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes ea rlier when he fledfrom Bryant’s back porch. See 483 Mich. 132, 13 5–136, 768N.W. 2d 6 5 , 67 (2009 ); App. 105. Bryant h a d not confronted hi m face-to-face before he was mortally wounded, instead s h ooting him through a door. See 48 3 Mich. , at 136–137, 768 N.W. 2d, at 67. Eve nif Bryant had pursu e d him (unlikely), and after seeing that Covin gton had ended up at the gas sta

tion was unable to confront him there before the police arrived (do ubly unlikely), it was entirely beyond imagina

tion that Bryant would again open fire while Covington was surrounded by five armed po lice officers. And Coving

ton k n ew the shooting was the workof a drug dealer, not a spree killer who might randomly threaten others. Id., at 135, 137, 76 8 N.W. 2d, at 67. Covington’s knowledge thathe had nothing to fear differs significantly from Michelle McCottry’s state of mind durin gher “frantic” stateme n ts to a 91 1 operator at issue in Davis , 547 U. S., at 827. Her “call was plainly a call for help against a b o na fide physical threat” describin g “events as they werea c tually ha p

p ening .” Ibid. S h e d i d7 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### not have the luxuries of police protection and of time and space separating her from i mmediate danger that Coving

ton enjoyed when he made his statements. Se e id., at 831. Covington’s pressing medica l need s do not su ggest tha t he was responding to an emergency, but to the contra ry reinforce th e testimonial characte r of his sta t ements. He understood the police were focused on investigating a past crime, not his medical needs. No ne of the of ficers ask e d Covington how he was doing, attempted more than super

ficially to assess the severityof his wounds, or attempted to administer first aid

. 2 

### They instead primarily asked questions w i th little, if any, relev ance to Covington’s dire situation. Police, paramedics, and doctors d o not need to k n ow the address where a shootin g tookplace, the name of the shooter, or the sho o ter’s he ight and weight to provide proper med i cal care. Underscori ng thatCov i ngton und er stood the officers’ investigativ e role, he interrupted their interrogation to ask “w hen is E M S coming?” App. 57

. When, in other words, would the f o cus shift t o his medical needs rather than Brya nt’s crime? Neither Covington’s s t atements nor the colloquy be

tween him and the officers would have been o u t of place at a trial; it would have been a rou t ine direct examination. See Davis , 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal even t began and progressed, and lik e aprosecutor , the pol i ce elicited that account through structured questioning. Preventing the

——————

2 Office r S t uglin’s tes t imony does not und ermine my a s s e s s ment of the officers’ behavior, although th e Court suggests otherwise. See ante , a t28 , n. 1 8

. O fficer S t uglin f i rs tt e s t ified t h at he “asked something lik e what happened orar e y o u okay , somethi n gto that lin e.” App., 13 1

. When pressed on whether heasked“h ow ar e you doing?,” he responded, “Well, bas i cally .

. . what’s wron g.” Ibid. Ot her office rs were nots o eq uivoca l: Th ey a d mitted they ha d no n eed to “a s khim how he wa s doing. .

. . It w a s very obvious how he was doing.” Id ., at 110; see a l so id., at 19.8 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### admission of “weakersubstitute[s] for live testimony at trial” such as this, id., at 828 (in t ernal quotation marks omitted), is precisely what motivated the Framers to ado p t the Confrontation Clause and what motiva ted our deci

sions in Crawfordand in Hamm o nv. Indiana , decided with Davi s . Ex parteexaminations raise the same consti

tutional concerns whether they take place in a gas-statio n parking lot or in a polic e interrogation room. C Worse still for the repute of today’s opinion, this is an absurdly easy case e v en if one(erroneous l y) tak e s the interrogati ng officers’ purpos e into account. The five officers interrogated Covingto n primarily to investigate past crimi nal events. None—absolutely n o ne—of their actions indicated that t h ey perceiv ed an imminent threat

. They did not draw their weapons, and indeed did no t immediatel y search the gas st ation for potential shooters

. 3 

### To the contrar y , all five testified that the yquestioned Covington b e fore condu cting any in vesti ga t ion at the s cene . Would this have made any sense if they feared the pres

ence of a shooter? Most tellin gly, none of the officers started his interrogation by askin gwhat would have been the obvious first question if any hin tof such a fear existed: Where is th e shooter? But do not rely solely on my wo rd about t h e officers’ primary pu rpose. Listen to Sergeant Wenturine, wh o candidly admitted that he in terrog a ted Coving ton becaus e he “ha[d] a man here that [he] believe[d] [was] dying [so

——————

3 The Courtcit e s Officer S t uglin’s t e st imony that “I think [ B r o wn and Peller i to] did a little b i t of both” jo ining the interro gation and helping to secure the s c ene. Id ., at 135– 13 6. Bu t th e poin t is n o t wh eth e rth ey did bo th; it i s whetherthey mov e d to sec u r ethe ar ea first. No officer’ s testi m onysugg ests this. Pe ller i to tes t ifie d that he, Stuglin, and Bro w n arrived at the scene at roughly th e same time and all thr ee immedi

a t ely went to Covington. S ee id., at 17– 18. Th e testimon yof B r own and McCallist e r co rroborate that account. See id., at 34–36, 79– 82.9 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### he was] gonna find out who did this, period.” App. 112. In short, he needed to interrogate Cov i ngton to solve a crime. Wenturine never mentioned aninterest in ending an ongoing emergency. At the veryleast, the officers’ intentions turnedinvesti

gative duri ng their 10-minute en counter with Covingto n, and the conversation “evolve[d] i n to testimonial state

ments.” Davis , 547 U. S., at 828 (internal quotation marks omit ted). The fi fth officer t o arrive at t h e scene did not need to run straigh tto Covin gton and ask a battery o f questions “t o determine the ne e dfor emer gency assis

tance,” Ibid

. He could have asked his fellow officers, who presumably had a better sense of that than Covington

— and a bette r sense of what he co uld do to a ssist. No, the value of as king the same battery of question s a fifth time was to ens u re that Covington tol da consistent story a n d to see if an y new detai l s helpful to the investigation and eventual prosecution would emerge. H a ving the testimony of five officers to rec o unt Covington’s cons istent story undoubtedly helped obtain Bryant’s convi c tion. (Which came, I may note, after the fi rst jury could not reach a verdict. Se e 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 exis ts whenever “an armed shooter, whose motiv e for and l o cation after the shooting [are] unknown, .

. . mortall y wound[s]” one individual “withina few blo c ks and [2 5] minutes of the location where the police” ultimately find that victim. An te , a t2 7

. B r eathlessly, it wo rries thata shooter cou l d leave thescene armed and ready to pull the trigger agai n. See ante , at 17–18 , 27, 30

. Nothing su g gests the f i ve officers in this c a se shared the Court ’ s10 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### dystopian 4

### view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd o f police offi

cers to finish him off, see ante , at 30, or where spree kill

ers shoot th rough a door and then roam the streets leavin g a trail of b o dies behin d

. Becaus e almost 90 percent o f murders involve a sin gle victim, 5

### it is much more likely

— indeed, I t h inkit certain—that the officers viewed their encounter with Covin gton for what it was: an investi

gation into a past crime with no ongoing or immediate consequenc es. The Court’s distorted view creates an expansiv e excep tion to the Confrontation Clause for violent c r imes. Be

cause Brya nt posed a continuing threat to p ublic 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 , a t28

. (The relevance of securing the scene is un

clear so lon gas the killer is stil l a tlarge—especially if, as the Court s p eculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify agai nst a defendant at trial first offer their ac

counts to p o lice in the hours after a violent act. If th e police can plausibly claim that a“potential threat to

. . . the public” persisted t h rough tho s e first few hours, ante , at 12 (and if the claim is plausible here it is a l ways plau

-

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4 The opposite of utopian. T h e word was coined by John Stuart Mil l as a c a u s ticd e sc r i ptionof Br itishpolic y . See 190 Ha n s ar d’ s Par lia

men t ar yDebates, Th ir d Ser i es 15 17 ( 3 d Ser

. 1868); 5 Ox for dEnglish Dic t ion a r y13 (2d ed. 1989).

5 See Federal Bureau of Investigat io n, Crime in the United S t ate s , 200 9: Ex pan d ed Homic i de Data T able 4, M u r d erby Vic t im/Offen d er Situations, 2009 (Sep t. 2010), on line at http://www2.fbi.gov/ucr/ c iu s 2009/offen s es/exp an ded_infor m atio n/ data /shrtable_04.ht ml ( a s v i s i t e d Feb. 25, 201 1, an d av ailable i nCler k of Cour t’ s c a se file).11 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### sible) adef e ndant will have no constitutionally protecte d right to exc l ude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers’ recollection at trial of th e witnesses’ accusations. The Framers could not have envisioned sucha hollow constitutional guarantee. No fr aming-era confrontation case that I know of, neither here n o r in England, took such an enfeebled view of th e right to co nfrontation. For exam

ple, King v. Brasi e r , 1 Leach 199, 200, 168 Eng. Rep. 202, 202–203 ( K

. B. 1779), held in admissible a mother’s ac

count of her young daughter’s statements “im m ediately on her coming home” aft e r being s e xually assa ulted. The daughter n eeded to testify herself. But today’s majori ty presumably would hold the daughter’s account to her mother a n o ntestimonial statemen t made during an ongo

ing emergency. She could not h a ve k n own whether her attac k er m i ght reappe ar to at tac kagainorattemptt o silence the lone witnes s against him. Her m o ther likely listened to the accountto assess the threat to her own safety and to decide whether th e rapist po sed a thre at to the community tha trequired the immediate interven

tion of the local authorities. Cf. ante , at 2 9–30. Utter nonsense. The 16th- and 17th-century En glish treason trials tha t helped inspire the Confrontat ion Clause show that toda y’s decision is a mistak e. The Court’s expansive definition of an “ongoing emergency” and its willingness to consider the perspective of the int e rrogator a n d the decl arant cast a more favorable light on those trials than h i story or our past decisions suggest they de serv e. Royal officials con

ducted ma ny of the ex par t eexaminations introduce d against Sir Walter Raleigh and Sir John Fenwick while investigating alleged treasonous conspiracies of unknown scope, aimed at killing or ove rthrowing the King. Se e Brief for National Ass o ciation of Criminal Defense Law

-12 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### yers as Amicus Curiae 21–22, and n. 11. Social stability in 16th- and 17th-century England depended mainly on th e continuity of the rulin g monarch, cf. 1 J. Stephen, A His

tory of the Criminal Law of En gland 354 (1883), so such a conspiracy posed the m o st pressing emergency imaginable. Presumably, the royal officials investigating i twould ha ve understood the gravity of the sit uation andwould have focused th eir interrogations pri m arily on ending t h e threat, not on generating testimo n y for trial. I therefor e doubt that under the Court’s testEnglish of ficials acted improperly by denying Raleigh and Fenwick the opportu

nity to confront their accusers “fac e to face,” id., at 326. Under my approach, in contrast, those English trials remain unquestionablyinfamous. Lord Cobham did not speakwith royal officials to end an ongoing emergency. He was a t r aitor! He s p oke, as Ra leigh correc t ly observe d , to establish Raleigh’s guilt and to save his own life. See 1 D. Jardine, Criminal Trials 435 (1832). Cobham’s state

ments, when assessedfrom his perspective, had only a testimonialpurpose. The sameis true of Covington’s statements here. II A But today’s decision is not on ly a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability con t inues to guide our Con

frontation Clause jurisprudence, at least where emergen

cies and faux emergencies are concerned. Accordin g to today’s opinion, the Davis inquiry into whether a declarant spok e to end an ongoing emergency o r rather to “prove past events potentially relevant to later criminal prosecution,” 547 U. S., at 822, is notaimed at answering whether th e declarant acted as a witness. Instead, the Davis inquiry probes the reliabilityof a decla

rant’s sta t ements, “[i]mplicit[ly]” importingthe excited

-13 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### utterances hearsay exc e ption into the Constitution. Ante , at 14–15. A statement during an ongoing emergency is sufficiently reliable, the Court say s , “because the prospec t of fabrication .

. . is presum ably significantly diminished, ” so it “does not [need] t o be subject to the c r uc ible of cross

examination.” Id., at 14

. Compare that withthe holding of Cra wfo rd:“Where testimonialstatements are at issu e, the on ly indicium of reliability sufficient to satisf y constitutional demands i s the one the Constitution actually presc r ibes: confronta

tion.” 541 U. S., at 6 8–69. Today’s opinion adopts, for emergencies and faux emergencies at lea s t, the discredited logic of Whitev. Illinoi s , 502 U. S. 346, 355–3 56, and n. 8 (1992), and Idaho v. Wrigh t , 4 97 U. S. 805, 819–82 0 (1990). Whiteis, of course, the decision thatboth Craw

fordand Davisfound most incompatible with the text a n d history of the Confrontation Clause. See Davis , supr a , at 825; Cra wf o rd , supr a , at 58, n. 8. (This is not to say tha t that “reliability” logic can a ctuall yjustify to day’s result: Twenty-five minutes is plenty of ti me for a sh ooting victi m to reflect and fabricate a false story.) The Court announces that in future cases it will look to “standard rules of hearsay, designed to i d entify some statements as reliab l e,” when deciding whether a state

ment is testimonial. Ante , a t11–1 2. Ohio v. Roberts , 44 8 U. S. 56 (1980) said s o mething remarkably similar: An out-of-court statement is admiss ib le if it “falls within a firmly rooted hearsay exceptio n” or otherwise “bears ade

quate ‘indicia of reliab ility.’ ” Id. , at 66. We tried that approach to the Confrontation Clause for n e a r ly 25 years before Crawford reje c t edit as a nunworka ble standard unmoored f r om the te xt and the historical roots of the Confrontation Clause. See 541 U. S., at 54, 60, 63–65, 67– 68. The a r guments in Raleigh’s infamous 17th-century treason trial contained full de bate about the reliability of Lord Cobham’s ex pa rtea ccusati ons, see Raleigh ’ s Case ,14MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### 2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29 (1603); that case remains the canonical exa m ple of a Confrontation Clause violation, not b e cause Raleigh should have won the debate but because he should have been allowed cross-examination. The Court attempts to fit its r e surrected interest in reliability i n to the Crawfordframework , but the result i s incoherent. Reliabilit y, the Court tells us, i s a good indi

cator of wh ether “a statement is .

. . an out-of-court substi

tute for tri al testimony.” Ante , a t11. That is patentl y false. Reliability tells us nothing about whe t her a sta t e ment is testimonial. Testimoni a l and nontestimonia l statements alik e come in varying degrees of reliabil i ty. An eyewitness’s state m ents to t h e policea f ter a fender

bender, for example, are both reliable and testimonial. Statements to the police fromone driver attempting to blame the other would be similarlytestimonial but rarely reliable. The Court suggests otherwise because it“misunder

stands the relationshi p ” between qualificati o n for one of the standard hearsay e x ceptions a n d exempti o n from th e confrontation requirement. Melendez-Diaz v. Massa ch u setts , 557 U. S. ___, ___ (2009) (slip op., at 18). That rela

tionship is not a causal one. H e arsay law exempts busi

ness records, for exa m ple, because businesses have a financial in centive to keep reliable records. See Fed. Rule Evid. 803(6 )

. The Sixth Amendment also gen e rally admits business records into evidence , but not because the records are reliable or becaus e hearsay law says so

. It admits them “beca u se—having been cre ated for th e administra

tion of an e n tity’s affairs and not for the purpose of estab

lishing or proving some fact at tri al—they are not” weaker substitutes for live testimony. Melendez-Diaz , 557 U. S., at ___ (slip op., at 18). Mor eover, the scope of the exemp

tion from confrontation and that of the hearsay exceptions also are notalways coextensive. The reliability logic of the15 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### business-record excep t ion would extend to r e cords main

tained by neutral parties pro viding litigation-support services, such as evidence testing. The Confrontation Clause is not so forg iving. Business records prepare d specifically for use at acriminal trial are testimonial and require confrontation. See ibid. Is it possible that the Court does not recognize the contradictio nbetween its focus on reliable statements and Cra wford ’s focus on tes t imonial on es? Does itnot realize that the two cannot coexist? Or does it inten d , by follow

ing today’s illogical roadmap, to resurrect Robertsby a thousand unprincipled distinctions without ever explicitly overruling Cra wford? After all, honestly overruling Craw

fordwould destroy the illusi on of j u dicial min i malism an d restraint. And itwou l d force th e Court to explain how the Justices’ preference comports with the meaning of t h e Confrontation Clause that the People a d opted—or to confess that only the Justices’ preference really matters. B The Court r e cedes from Cra wfordi na second significant way. It requires judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquir

ies 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 1 6 , into the type of weapon the defendant wielded, see ante , a t 17 ; the type of crime the defendant committed, see ante , at 12, 16–17; the medical condition of the declara n t, see ante , at 17–18; if the declarant is injured, whether paramedics have arrive d on the scene, se e ante , at 20; whether th e encounter takes place in an “exposed public area,” ibid .; whether the encounter appears disorganized, see ibid .; whether th e declarant is capable of forming a purpose, see ante , a t 22; whether the police have secured the scene of16 MICHIGAN v. BRYANT S CALIA , J., dis s e nting 

### the crime, s ee ante , at 28; the formality of the statement, see ante , at 19; and fin a lly, whether the statement strikes us as reliab l e, see ante , at 11–12, 1 4–15. This is no b e tter than the nine-factor balancing test we rejected in Cra w ford , 541 U. S., at 63. I do not lo ok forwa r d to resolving conflicts in the future o v er whether kni v es an d poison ar e 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 s a id, of course, that un der Cr awfo rd analysis of whether a statement is testimonial requires considera

tion of al l t h e circumstances, and so is a l so something of a multifactorbalancing test. But t h e “reliability” test does not replace that analysis; it supplements it. As I under

stand the Court’s opinion, evenwhen it i s dete rmined that no emergency exists (or perhaps be fore that determination is made) th e statement would be found admissible as fa r as the Confrontation Clause is concerned if it is n o t testimonial. In any case, we did not disavow multifactor balancing for reliabili ty in Cr awford out of a preference for rules over standa r ds. We didso 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 tria l rights of En glishmen in the politica ltrials of the 16th an d 17th centuries. See, e.g., Throckm o rton’s Cas e , 1 How. St. Tr. 869, 87 5–876 (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 t h e Admiralty courts incolonial America) would not be repeated in this countr y . Not even t h e least dan

gerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating th reats to national security

. See Cra w ford , supr a , at 67–68; cf. Hamdiv. Rumsfe ld , 542 U. S. 507, 576–57 8 (2004) (S CALIA 

### , J., dissenting).17 Cite as: 56 2 U

. S. ____ (2011) S CALIA , J., dis s e nting 

### * * * Judicial decisions, like the Constitution itself, are noth

ing more than “parchm e nt barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1 901). Bothdepend ona judicial cu lture that understa n ds its co nstitutionally assigned role, has the courage to persist in t hat role wh en it means a nnouncing unpopular decisions, and has the modesty to persist when it produces results that g o against the judges’ po licy prefere n ces. Today’s opinion falls far sh ort of living up to that obligation—short on the facts, and short on the law. For all I kn ow, Bryant has received his just deserts. But he surely has not received them pursuant to the proce

dures that our Constitution re quires. And what has been taken awa yfrom him has been taken away fro m us all._________________

_________________ 1 Cite as: 56 2 U

. S. ____ (2011) G IN SB U R G , J., dis s e nting 

# SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 50 

### MICHIGAN, PETITI ONER v. RI CHAR D PE RRY BRYA N T ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF MICHIGAN [Febr u ar y28, 201 1] 

### J USTICE 

### G IN S B UR G 

### , dissenting. I agree with J U S TI CE 

### S CALIA 

### th at Covington’s state

ments were testimonial and that “[t]he decla r ant’s inten t is what counts.” Ante , at 2 (dissenting opinion). Even if the interrogators’ int e nt were what coun ts, I further agree, Covi ngton’s statements would still be testimonia l. Ante , at 8. It is most li kely t hat “t he officers viewed their encounter with Covin gton [as] an investigation into apast crime with no ongoing or immedia t e consequences.” Ante , at 10. To day’s decision, J USTIC E 

### S CALIA 

### r i ghtly note s, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. I ns od o i n g , t h e d e c i s i o n 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 Crawfordv. Washin gton , 541 U. S. 36, 56, n. 6 (2004), this Court noted that, in the law we in herited fro m England, there was a well-established exception to the confrontation require

ment: The cloak protecting the accused against admission of out-of-co u rt testimonial statements was removed for dying declarations. This histor ic exception, we recalled in Gilesv. California , 554 U. S. 353, 358 (2008); see id. , a t 361–362, 3 68, applied to statements made by a person2 MICHIGAN v. BRYANT G IN SB U R G , J., dis s e nting 

### about to di e and awa r e that death was imm i nent. Were the issue p r operly tendered here, I would tak e 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 prosecut or had abandonedthe issu e. See 483 Mich. 132, 15 6–157, 768 N. W. 2d 6 5 , 78 (2009 ). The matter, therefore, is not one the Court can address in this case.