(Slip Opinion) OCTOBER TERM, 2010 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MICHIGAN v. BRYANT 

CERTIORARI TO THE SUPREME COURT OF MICHIGAN 

No. 09–150. Argued October 5, 2010—Decided February 28, 2011 

Michigan police dispatched to a gas station parking lot found Anthony

Covington mortally wounded. Covington told them that he had been 

shot by respondent Bryant outside Bryant’s house and had then

driven himself to the lot. At trial, which occurred before Crawford v. 

Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, 

were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding

that the Sixth Amendment’s Confrontation Clause, as explained in 

Crawford and Davis, rendered Covington’s statements inadmissible 

testimonial hearsay. 

Held: Covington’s identification and description of the shooter and the 

location of the shooting were not testimonial statements because they

had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 

32. 

(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands . . . unavailability and a prior opportunity for cross-examination.” 541 U. S., at 

68. Crawford did not “spell out a comprehensive definition of ‘testimonial,’ ” but it noted that testimonial evidence includes, among

other things, “police interrogations.” Ibid. Thus, Sylvia Crawford’s 

statements during a station-house interrogation about a stabbing

were testimonial, and their admission when her husband, the accused, had “no opportunity” for cross-examination due to spousal 

privilege made out a Sixth Amendment violation. In Davis and 

Hammon, both domestic violence cases, the Court explained that

“[s]tatements are nontestimonial when made in the course of police 
2 MICHIGAN v. BRYANT 

Syllabus 

interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to

meet an ongoing emergency,” but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation’s] primary purpose is to establish

or prove past events potentially relevant to later criminal prosecution.” 547 U. S., at 822. Thus, a recording of a 911 call describing an

ongoing domestic disturbance was nontestimonial in Davis, where 

the victim’s “elicited statements were necessary to be able to resolve 

[the ongoing] emergency,” and the statements were not formal. Id., 

at 827. But the statements in Hammon were testimonial, where the 

victim was interviewed after the event in a room separate from her 

husband and “deliberately recounted, in response to police questioning” the past events. Id., at 830. Here, the context is a nondomestic 

dispute, with the “ongoing emergency” extending beyond an initial

victim to a potential threat to the responding police and the public.

This context requires additional clarification of what Davis meant by 

“the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.

(b) To make the “primary purpose” determination, the Court must

objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. Pp. 12–23. 

(1) The primary purpose inquiry is objective. The circumstances 

in which an encounter occurs—e.g., at or near a crime scene versus at 

a police station, during an ongoing emergency or afterwards—are 

clearly matters of objective fact. And the relevant inquiry into the

parties’ statements and actions is not the subjective or actual purpose

of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements 

and actions and the circumstances in which the encounter occurred. 

P. 13. 

(2) The existence of an “ongoing emergency” at the time of the

encounter is among the most important circumstances informing the

interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828– 

830. An emergency focuses the participants not on “prov[ing] past

events potentially relevant to later criminal prosecution,” id., at 822, 

but on “end[ing] a threatening situation,” id., at 832. The Michigan 

Supreme Court failed to appreciate that whether an emergency exists 

and is ongoing is a highly context-dependent inquiry. An assessment 

of whether an emergency threatening the police and public is ongoing

cannot narrowly focus on whether the threat to the first victim has

been neutralized because the threat to the first responders and public 

may continue. The State Supreme Court also did not appreciate that 
Cite as: 562 U. S. ____ (2011) 3 

Syllabus 

an emergency’s duration and scope may depend in part on the type of 

weapon involved; the court below relied on Davis and Hammon, 

where the assailants used their fists, as controlling the scope of an

emergency involving a gun. A victim’s medical condition is important

to the primary purpose inquiry to the extent that it sheds light on the 

victim’s ability to have any purpose at all in responding to police 

questions and on the likelihood that any such purpose would be a testimonial one. It also provides important context for first responders

to judge the existence and magnitude of a continuing threat to the

victim, themselves, and the public. This does not mean that an 

emergency lasts the entire time that a perpetrator is on the loose, but 

trial courts can determine in the first instance when an interrogation 

transitions from nontestimonial to testimonial. Finally, whether an 

ongoing emergency exists is simply one factor informing the ultimate

inquiry regarding an interrogation’s “primary purpose.” Another is 

the encounter’s informality. Formality suggests the absence of an

emergency, but informality does not necessarily indicate the presence 

of an emergency or the lack of testimonial intent. The facts here— 

the questioning occurred in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion— 

distinguish this case from Crawford’s formal station-house interrogation. Pp. 14–20.

(3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary

purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to 

one participant, since both interrogators and declarants may have

mixed motives. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an 

ongoing emergency, victims may want the threat to end, but may not

envision prosecution. Alternatively, a severely injured victim may 

have no purpose at all in answering questions. Taking into account

such injuries does not make the inquiry subjective. The inquiry still

focuses on the understanding and purpose of a reasonable victim in

the actual victim’s circumstances, which prominently include the victim’s physical state. Objectively ascertaining the primary purpose of 

the interrogation by examining the statements and actions of all participants is also consistent with this Court’s prior holdings. E.g., 

Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23. 

(c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate 

that the interrogation’s “primary purpose” was “to enable police assistance to meet an ongoing emergency,” 547 U. S., at 822. The cir-
4 MICHIGAN v. BRYANT 

Syllabus 

cumstances of the interrogation involved an armed shooter, whose 

motive for and location after the shooting were unknown and who 

had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute’s potential scope and

thus the emergency encompassed a potential threat to the police and

the public. And since this case involved a gun, the physical separation that was sufficient to end the emergency in Hammon was not 

necessarily sufficient to end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining the “primary purpose of the interrogation” as evidenced by the

statements and actions of Covington and the police. The circumstances of the encounter provide important context for understanding

Covington’s statements to the police. When he responded to their 

questions, he was lying in a gas station parking lot bleeding from a 

mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive. Thus, 

this Court cannot say that a person in his situation would have had a 

“primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Ibid. For their part, the police 

responded to a call that a man had been shot. They did not know

why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime. They asked exactly the type of

questions necessary to enable them “to meet an ongoing emergency.” 

Ibid. Nothing in Covington’s responses indicated to the police that

there was no emergency or that the emergency had ended. Finally,

this situation is more similar to the informal, harried 911 call in 

Davis than to the structured, station-house interview in Crawford. 

The officers all arrived at different times; asked, upon arrival, what

had happened; and generally did not conduct a structured interrogation. The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to 

or focused him on the possible future prosecutorial use of his statements. Pp. 23–32. 

483 Mich. 132, 768 N. W. 2d 65, vacated and remanded. 

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed 

an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J., 

filed dissenting opinions. KAGAN, J., took no part in the consideration 

or decision of the case. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 09–150 

MICHIGAN, PETITIONER v. RICHARD PERRY 

BRYANT 

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011] 

JUSTICE SOTOMAYOR delivered the opinion of the Court. 

At respondent Richard Bryant’s trial, the court admitted

statements that the victim, Anthony Covington, made to

police officers who discovered him mortally wounded in a 

gas station parking lot. A jury convicted Bryant of, inter 

alia, second-degree murder. 483 Mich. 132, 137, 768 

N. W. 2d 65, 67–68 (2009). On appeal, the Supreme Court 

of Michigan held that the Sixth Amendment’s Confrontation Clause, as explained in our decisions in Crawford v. 

Washington, 541 U. S. 36 (2004), and Davis v. Washington, 

547 U. S. 813 (2006), rendered Covington’s statements 

inadmissible testimonial hearsay, and the court reversed

Bryant’s conviction. 483 Mich., at 157, 768 N. W. 2d, at 

79. We granted the State’s petition for a writ of certiorari 

to consider whether the Confrontation Clause barred the 

admission at trial of Covington’s statements to the police.

We hold that the circumstances of the interaction between 

Covington and the police objectively indicate that the 

“primary purpose of the interrogation” was “to enable

police assistance to meet an ongoing emergency.” Davis, 

547 U. S., at 822. Therefore, Covington’s identification 
2 MICHIGAN v. BRYANT 

Opinion of the Court 

and description of the shooter and the location of the

shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation 

Clause. We vacate the judgment of the Supreme Court of 

Michigan and remand. 

I 

Around 3:25 a.m. on April 29, 2001, Detroit, Michigan

police officers responded to a radio dispatch indicating

that a man had been shot. At the scene, they found the 

victim, Anthony Covington, lying on the ground next to his

car in a gas station parking lot. Covington had a gunshot

wound to his abdomen, appeared to be in great pain, and 

spoke with difficulty. 

The police asked him “what had happened, who had 

shot him, and where the shooting had occurred.” 483 

Mich., at 143, 768 N. W. 2d, at 71. Covington stated that

“Rick” shot him at around 3 a.m. Id., at 136, and n. 1, 768 

N. W. 2d, at 67, and n. 1. He also indicated that he had a 

conversation with Bryant, whom he recognized based on

his voice, through the back door of Bryant’s house. Covington explained that when he turned to leave, he was

shot through the door and then drove to the gas station, 

where police found him.

Covington’s conversation with the police ended within 5

to 10 minutes when emergency medical services arrived.

Covington was transported to a hospital and died within

hours. The police left the gas station after speaking with

Covington, called for backup, and traveled to Bryant’s

house. They did not find Bryant there but did find blood 

and a bullet on the back porch and an apparent bullet hole 

in the back door. Police also found Covington’s wallet and 

identification outside the house. 

At trial, which occurred prior to our decisions in Crawford, 541 U. S. 36, and Davis, 547 U. S. 813, the police 

officers who spoke with Covington at the gas station testi-
Cite as: 562 U. S. ____ (2011) 3 

Opinion of the Court 

fied about what Covington had told them. The jury returned a guilty verdict on charges of second-degree 

murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony.

Bryant appealed, and the Michigan Court of Appeals 

affirmed his conviction. No. 247039, 2004 WL 1882661 

(Aug. 24, 2004) (per curiam). Bryant then appealed to the 

Supreme Court of Michigan, arguing that the trial court 

erred in admitting Covington’s statements to the police.

The Supreme Court of Michigan eventually remanded the 

case to the Court of Appeals for reconsideration in light of 

our 2006 decision in Davis. 477 Mich. 902, 722 N. W. 2d 

797 (2006). On remand, the Court of Appeals again affirmed, holding that Covington’s statements were properly 

admitted because they were not testimonial. No. 247039, 

2007 WL 675471 (Mar. 6, 2007) (per curiam). Bryant

again appealed to the Supreme Court of Michigan, which

reversed his conviction. 483 Mich. 132, 768 N. W. 2d 65. 

Before the Supreme Court of Michigan, Bryant argued

that Covington’s statements to the police were testimonial 

under Crawford and Davis and were therefore inadmissible. The State, on the other hand, argued that the statements were admissible as “excited utterances” under the 

Michigan Rules of Evidence. 483 Mich., at 142, and n. 6, 

768 N. W. 2d, at 70, and n. 6. There was no dispute that 

Covington was unavailable at trial and Bryant had no

prior opportunity to cross-examine him. The court therefore assessed whether Covington’s statements to the police 

identifying and describing the shooter and the time and 

location of the shooting were testimonial hearsay for 

purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the 

‘primary purpose’ of the questioning was to establish the 

facts of an event that had already occurred; the ‘primary

purpose’ was not to enable police assistance to meet an

ongoing emergency.” Id., at 143, 768 N. W. 2d, at 71. The 
4 MICHIGAN v. BRYANT 

Opinion of the Court 

court explained that, in its view, Covington was describing 

past events and as such, his “primary purpose in making 

these statements to the police . . . was . . . to tell the police

who had committed the crime against him, where the

crime had been committed, and where the police could find

the criminal.” Id., at 144, 768 N. W. 2d, at 71. Noting

that the officers’ actions did not suggest that they perceived an ongoing emergency at the gas station, the court 

held that there was in fact no ongoing emergency. Id., at 

145–147, 768 N. W. 2d, at 71–73. The court distinguished

the facts of this case from those in Davis, where we held a 

declarant’s statements in a 911 call to be nontestimonial. 

It instead analogized this case to Hammon v. Indiana, 

which we decided jointly with Davis and in which we 

found testimonial a declarant’s statements to police just 

after an assault. See 547 U. S., at 829–832. Based on this 

analysis, the Supreme Court of Michigan held that the 

admission of Covington’s statements constituted prejudicial plain error warranting reversal and ordered a new 

trial. 483 Mich., at 151–153, 768 N. W. 2d, at 75–76. The 

court did not address whether, absent a Confrontation 

Clause bar, the statements’ admission would have been 

otherwise consistent with Michigan’s hearsay rules or due 

process.1 

—————— 

1The Supreme Court of Michigan held that the question whether the 

victim’s statements would have been admissible as “dying declarations” 

was not properly before it because at the preliminary examination, the

prosecution, after first invoking both the dying declaration and excited

utterance hearsay exceptions, established the factual foundation only 

for admission of the statements as excited utterances. The trial court 

ruled that the statements were admissible as excited utterances and 

did not address their admissibility as dying declarations. 483 Mich., at 

153–154, 768 N. W. 2d, at 76–77. This occurred prior to our 2004 

decision in Crawford v. Washington, 541 U. S. 36, where we first 

suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. Id., at 56, 

n. 6; see also Giles v. California, 554 U. S. 353, 358–359 (2008). We 
Cite as: 562 U. S. ____ (2011) 5 

Opinion of the Court 

The majority’s opinion provoked two dissents, both of 

which would have held Covington’s statements admissible

because they were made in circumstances indicating that

their “primary purpose” was to assist police in addressing

an ongoing emergency. Id., at 157, 768 N. W. 2d, at 79 

(opinion of Weaver, J.); id., at 157–158, 768 N. W. 2d, at 

79 (opinion of Corrigan, J.). Justice Corrigan’s dissent

explained that the time and space between “the onset of

an emergency and statements about that emergency

clearly must be considered in context.” Id., at 161, 768 

N. W. 2d, at 80. Justice Corrigan concluded that the

objective circumstances of Covington’s interaction with

police rendered this case more similar to the nontestimonial statements in Davis than to the testimonial statements in Crawford. 483 Mich., at 164, 768 N. W. 2d, 

at 82. 

We granted certiorari to determine whether the Confrontation Clause barred admission of Covington’s statements. 559 U. S. ___ (2010). 

II 

The Confrontation Clause of the Sixth Amendment 

states: “In all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses 

against him.” The Fourteenth Amendment renders the 

Clause binding on the States. Pointer v. Texas, 380 U. S. 

400, 403 (1965). In Ohio v. Roberts, 448 U. S. 56, 66 

(1980), we explained that the confrontation right does not 

bar admission of statements of an unavailable witness if 

the statements “bea[r] adequate ‘indicia of reliability.’” 

—————— 

noted in Crawford that we “need not decide in this case whether the 

Sixth Amendment incorporates an exception for testimonial dying 

declarations.” 541 U. S., at 56, n. 6. Because of the State’s failure to 

preserve its argument with regard to dying declarations, we similarly 

need not decide that question here. See also post, p. __ (GINSBURG, J., 

dissenting). 
6 MICHIGAN v. BRYANT 

Opinion of the Court 

We held that reliability can be established if “the evidence

falls within a firmly rooted hearsay exception,” or if it does 

not fall within such an exception, then if it bears “particularized guarantees of trustworthiness.” Ibid. 

Nearly a quarter century later, we decided Crawford v. 

Washington, 541 U. S. 36. Petitioner Michael Crawford 

was prosecuted for stabbing a man who had allegedly 

attempted to rape his wife, Sylvia. Sylvia witnessed the

stabbing, and later that night, after she and her husband 

were both arrested, police interrogated her about the

incident. At trial, Sylvia Crawford claimed spousal privilege and did not testify, but the State introduced a tape

recording of Sylvia’s statement to the police in an effort to 

prove that the stabbing was not in self-defense, as Michael 

Crawford claimed. The Washington Supreme Court affirmed Crawford’s conviction because it found Sylvia’s 

statement to be reliable, as required under Ohio v. Roberts. We reversed, overruling Ohio v. Roberts. 541 U. S., 

at 60–68; see also Davis, 547 U. S., at 825, n. 4. 

Crawford examined the common-law history of the

confrontation right and explained that “the principal evil

at which the Confrontation Clause was directed was the 

civil-law mode of criminal procedure, and particularly its

use of ex parte examinations as evidence against the accused.” 541 U. S., at 50. We noted that in England, pretrial examinations of suspects and witnesses by government officials “were sometimes read in court in lieu of live 

testimony.” Id., at 43. In light of this history, we emphasized the word “witnesses” in the Sixth Amendment, defining it as “those who ‘bear testimony.’ ” Id., at 51 (quoting 

2 N. Webster, An American Dictionary of the English 

Language (1828)). We defined “testimony” as “ ‘ [a] solemn 

declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51 (quoting 

Webster). We noted that “[a]n accuser who makes a formal statement to government officers bears testimony in a 
Cite as: 562 U. S. ____ (2011) 7 

Opinion of the Court 

sense that a person who makes a casual remark to an

acquaintance does not.” Ibid. We therefore limited the 

Confrontation Clause’s reach to testimonial statements 

and held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands what the common law required: unavailability and a prior opportunity

for cross-examination.” Id., at 68. Although “leav[ing] for

another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” Crawford noted that “at a minimum” 

it includes “prior testimony at a preliminary hearing, 

before a grand jury, or at a former trial; and . . . police 

interrogations.” Ibid. Under this reasoning, we held that 

Sylvia Crawford’s statements in the course of police questioning were testimonial and that their admission when

Michael Crawford “had no opportunity to cross-examine 

her” due to spousal privilege was “sufficient to make out a 

violation of the Sixth Amendment.” Ibid. 

In 2006, the Court in Davis v. Washington and Hammon 

v. Indiana, 547 U. S. 813, took a further step to “determine more precisely which police interrogations produce 

testimony” and therefore implicate a Confrontation Clause

bar. Id., at 822. We explained that when Crawford said 

that 

“ ‘interrogations by law enforcement officers fall 

squarely within [the] class’ of testimonial hearsay, we

had immediately in mind (for that was the case before

us) interrogations solely directed at establishing the 

facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator. The product of

such interrogation, whether reduced to a writing 

signed by the declarant or embedded in the memory

(and perhaps notes) of the interrogating officer, is testimonial.” Davis, 547 U. S., at 826. 

We thus made clear in Davis that not all those questioned

by the police are witnesses and not all “interrogations by 
8 MICHIGAN v. BRYANT 

Opinion of the Court 

law enforcement officers,” Crawford, 541 U. S., at 53, are 

subject to the Confrontation Clause.2 

Davis and Hammon were both domestic violence cases. 

In Davis, Michelle McCottry made the statements at issue

to a 911 operator during a domestic disturbance with

Adrian Davis, her former boyfriend. McCottry told the 

operator, “‘He’s here jumpin’ on me again,’” and, “‘He’s

usin’ his fists.’” 547 U. S., at 817. The operator then

asked McCottry for Davis’ first and last names and middle

initial, and at that point in the conversation McCottry 

reported that Davis had fled in a car. Id., at 818. 

McCottry did not appear at Davis’ trial, and the State 

introduced the recording of her conversation with the 911 

operator. Id., at 819. 

In Hammon, decided along with Davis, police responded 

to a domestic disturbance call at the home of Amy and 

Hershel Hammon, where they found Amy alone on the 

front porch. Ibid. She appeared “ ‘somewhat frightened,’ ” 

but told them “ ‘nothing was the matter.’ ” Ibid. (quoting 

Hammon v. State, 829 N. E. 2d 444, 446–447 (Ind. 2005)).

She gave the police permission to enter the house, where

they saw a gas heating unit with the glass front shattered

on the floor. One officer remained in the kitchen with 

Hershel, while another officer talked to Amy in the living

room about what had happened. Hershel tried several 

times to participate in Amy’s conversation with the police 

and became angry when the police required him to stay

separated from Amy. 547 U. S., at 819–820. The police

asked Amy to fill out and sign a battery affidavit. She 

wrote: “‘Broke our Furnace & shoved me down on the floor 

—————— 

2 We noted in Crawford that “[w]e use the term ‘interrogation’ in its 

colloquial, rather than any technical legal, sense,” and that “[j]ust as

various definitions of ‘testimonial’ exist, one can imagine various 

definitions of ‘interrogation,’ and we need not select among them in this

case.” 541 U. S., at 53, n. 4. Davis did not abandon those qualifications; nor do we do so here. 
Cite as: 562 U. S. ____ (2011) 9 

Opinion of the Court 

into the broken glass. Hit me in the chest and threw me 

down. Broke our lamps & phone. Tore up my van where I

couldn’t leave the house. Attacked my daughter.’” Id., at 

820. Amy did not appear at Hershel’s trial, so the police 

officers who spoke with her testified as to her statements

and authenticated the affidavit. Ibid. The trial court 

admitted the affidavit as a present sense impression and 

admitted the oral statements as excited utterances under 

state hearsay rules. Ibid. The Indiana Supreme Court

affirmed Hammon’s conviction, holding that Amy’s oral 

statements were not testimonial and that the admission of 

the affidavit, although erroneous because the affidavit was 

testimonial, was harmless. Hammon v. State, 829 N. E. 

2d, at 458–459. 

To address the facts of both cases, we expanded upon 

the meaning of “testimonial” that we first employed in 

Crawford and discussed the concept of an ongoing emergency. We explained: 

“Statements are nontestimonial when made in the 

course of police interrogation under circumstances objectively indicating that the primary purpose of the 

interrogation is to enable police assistance to meet an 

ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no 

such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822. 

Examining the Davis and Hammon statements in light of

those definitions, we held that the statements at issue 

in Davis were nontestimonial and the statements in 

Hammon were testimonial. We distinguished the statements in Davis from the testimonial statements in Crawford on several grounds, including that the victim in Davis 

was “speaking about events as they were actually happen-
10 MICHIGAN v. BRYANT 

Opinion of the Court 

ing, rather than ‘describ[ing] past events,’ ” that there was

an ongoing emergency, that the “elicited statements were

necessary to be able to resolve the present emergency,”

and that the statements were not formal. 547 U. S., at 

827. In Hammon, on the other hand, we held that, “[i]t is 

entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal

past conduct.” Id., at 829. There was “no emergency in 

progress.” Ibid. The officer questioning Amy “was not 

seeking to determine . . . ‘what is happening,’ but rather 

‘what happened.’ ” Id., at 830. It was “formal enough” 

that the police interrogated Amy in a room separate from

her husband where, “some time after the events described 

were over,” she “deliberately recounted, in response to

police questioning, how potentially criminal past events 

began and progressed.” Ibid. Because her statements 

“were neither a cry for help nor the provision of information enabling officers immediately to end a threatening 

situation,” id., at 832, we held that they were testimonial. 

Davis did not “attemp[t] to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as

either testimonial or nontestimonial.” Id., at 822.3 The 

—————— 

3 Davis explained that 911 operators “may at least be agents of

law enforcement when they conduct interrogations of 911 callers,” and 

therefore “consider[ed] their acts to be acts of the police” for purposes of

the opinion. 547 U. S., at 823, n. 2. Davis explicitly reserved the

question of “whether and when statements made to someone other than 

law enforcement personnel are ‘testimonial.’ ” Ibid. We have no need to 

decide that question in this case either because Covington’s statements 

were made to police officers. The dissent also claims to reserve this 

question, see post, at 3, n. 1 (opinion of SCALIA, J.), but supports one of 

its arguments by relying on King v. Brasier, 1 Leach 199, 200, 168 Eng.

Rep. 202, 202–203 (K. B. 1779), which involved statements made by a

child to her mother—a private citizen—just after the child had been

sexually assaulted. See also Crawford v. Washington, 541 U. S. 36, 69– 

70 (2004) (Rehnquist, C. J., concurring in judgment) (citing King v. 
Cite as: 562 U. S. ____ (2011) 11 

Opinion of the Court 

basic purpose of the Confrontation Clause was to “targe[t]”

the sort of “abuses” exemplified at the notorious treason 

trial of Sir Walter Raleigh. Crawford, 541 U. S., at 51. 

Thus, the most important instances in which the Clause

restricts the introduction of out-of-court statements are 

those in which state actors are involved in a formal, out-ofcourt interrogation of a witness to obtain evidence for 

trial.4 See id., at 43–44. Even where such an interrogation is conducted with all good faith, introduction of the 

resulting statements at trial can be unfair to the accused 

if they are untested by cross-examination. Whether formal or informal, out-of-court statements can evade the 

basic objective of the Confrontation Clause, which is to

prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements 

taken for use at trial. When, as in Davis, the primary

purpose of an interrogation is to respond to an “ongoing

emergency,” its purpose is not to create a record for trial

and thus is not within the scope of the Clause. But there 

may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary

purpose of creating an out-of-court substitute for trial

testimony. In making the primary purpose determination,

standard rules of hearsay, designed to identify some state-

—————— 

Brasier for the different proposition that “out-of-court statements made

by someone other than the accused and not taken under oath, unlike ex 

parte depositions or affidavits, were generally not considered substantive evidence upon which a conviction could be based”). 4Contrary to the dissent’s excited suggestion, nothing in this opinion 

casts “favorable light,” post, at 11 (opinion of SCALIA, J.), on the conduct 

of Sir Walter Raleigh’s trial or other 16th- and 17th-century English

treason trials. The dissent is correct that such trials are “unquestionably infamous,” ibid., and our decision here confirms, rather than undermines, that assessment. See also n. 17, infra. For all of the 

reasons discussed in JUSTICE THOMAS’ opinion concurring in the judgment, the situation presented in this case is nothing like the circumstances presented by Sir Walter Raleigh’s trial. See post, p. __. 
12 MICHIGAN v. BRYANT 

Opinion of the Court 

ments as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is 

the concern of state and federal rules of evidence, not the 

Confrontation Clause.5 

Deciding this case also requires further explanation of 

the “ongoing emergency” circumstance addressed in Davis. 

Because Davis and Hammon arose in the domestic violence context, that was the situation “we had immediately 

in mind (for that was the case before us).” 547 U. S., at 

826. We now face a new context: a nondomestic dispute,

involving a victim found in a public location, suffering

from a fatal gunshot wound, and a perpetrator whose

location was unknown at the time the police located the 

victim. Thus, we confront for the first time circumstances 

in which the “ongoing emergency” discussed in Davis 

extends beyond an initial victim to a potential threat to 

the responding police and the public at large. This new 

context requires us to provide additional clarification with 

regard to what Davis meant by “the primary purpose of 

the interrogation is to enable police assistance to meet an

ongoing emergency.” Id., at 822. 

III 

To determine whether the “primary purpose” of an

interrogation is “to enable police assistance to meet an

ongoing emergency,” Davis, 547 U. S., at 822, which would 

render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter 

occurs and the statements and actions of the parties. 

—————— 

5See Davis v. Washington, 547 U. S. 813, 823–824 (2006) (explaining

the question before the Court as “whether the Confrontation Clause 

applies only to testimonial hearsay” and answering in the affirmative

because “[a] limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its ‘core,’ but

its perimeter”). See also post, at 2 (SCALIA, J., dissenting). 
Cite as: 562 U. S. ____ (2011) 13 

Opinion of the Court 

A 

The Michigan Supreme Court correctly understood that

this inquiry is objective.6 483 Mich., at 142, 768 N. W. 2d, 

at 70. Davis uses the word “objective” or “objectively” no

fewer than eight times in describing the relevant inquiry.

See 547 U. S., at 822, 826–828, 830–831, and n. 5; see, e.g., 

id., at 826 (“The question before us in Davis, then, is 

whether, objectively considered, the interrogation that

took place in the course of the 911 call produced testimonial statements”). “Objectively” also appears in the definitions of both testimonial and nontestimonial statements 

that Davis established. Id., at 822. 

An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it

provides the most accurate assessment of the “primary

purpose of the interrogation.” The circumstances in which 

an encounter occurs—e.g., at or near the scene of the crime 

versus at a police station, during an ongoing emergency 

or afterwards—are clearly matters of objective fact. The 

statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the 

subjective or actual purpose of the individuals involved in 

a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from

the individuals’ statements and actions and the circumstances in which the encounter occurred.7 

—————— 

6Bryant suggests that Michigan is arguing for “a subjective analysis

of the intent of the interrogator’s questioning.” Brief for Respondent 

12. We do not read Michigan’s brief to be arguing for a subjective

inquiry, and any such argument would be in error. We do not understand the dissent to disagree that the inquiry is objective. 7This approach is consistent with our rejection of subjective inquiries 

in other areas of criminal law. See, e.g., Whren v. United States, 517 

U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness subjectively in light of the officers’ actual motivations); New 

York v. Quarles, 467 U. S. 649, 655–656, and n. 6 (1984) (holding that 

an officer’s subjective motivation is irrelevant to determining the 
14 MICHIGAN v. BRYANT 

Opinion of the Court 

B 

As our recent Confrontation Clause cases have explained, the existence of an “ongoing emergency” at the 

time of an encounter between an individual and the police

is among the most important circumstances informing the 

“primary purpose” of an interrogation. See Davis, 547 

U. S., at 828–830; Crawford, 541 U. S., at 65. The existence of an ongoing emergency is relevant to determining 

the primary purpose of the interrogation because an 

emergency focuses the participants on something other

than “prov[ing] past events potentially relevant to later 

criminal prosecution.”8 Davis, 547 U. S., at 822. Rather, 

it focuses them on “end[ing] a threatening situation.” Id., 

at 832. Implicit in Davis is the idea that because the 

prospect of fabrication in statements given for the primary 

purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not 

require such statements to be subject to the crucible of

cross-examination. 

This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements “relating to a

startling event or condition made while the declarant was 

under the stress of excitement caused by the event or 

—————— 

applicability of the public safety exception to Miranda v. Arizona, 384

U. S. 436 (1966)); Rhode Island v. Innis, 446 U. S. 291, 301–302 (1980) 

(holding that a police officer’s subjective intent to obtain incriminatory

statements is not relevant to determining whether an interrogation has

occurred). 8The existence of an ongoing emergency must be objectively assessed

from the perspective of the parties to the interrogation at the time, not

with the benefit of hindsight. If the information the parties knew at 

the time of the encounter would lead a reasonable person to believe

that there was an emergency, even if that belief was later proved 

incorrect, that is sufficient for purposes of the Confrontation Clause. 

The emergency is relevant to the “primary purpose of the interrogation” 

because of the effect it has on the parties’ purpose, not because of its 

actual existence. 
Cite as: 562 U. S. ____ (2011) 15 

Opinion of the Court 

condition,” Fed. Rule Evid. 803(2); see also Mich. Rule

Evid. 803(2) (2010), are considered reliable because the

declarant, in the excitement, presumably cannot form a

falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990) 

(“The basis for the ‘excited utterance’ exception . . . is that

such statements are given under circumstances that 

eliminate the possibility of fabrication, coaching, or confabulation . . . ”); 5 J. Weinstein & M. Berger, Weinstein’s

Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed. 

2010) (same); Advisory Committee’s Notes on Fed. Rule 

Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing 

emergency has a similar effect of focusing an individual’s 

attention on responding to the emergency.9 

Following our precedents, the court below correctly

began its analysis with the circumstances in which Covington interacted with the police. 483 Mich., at 143, 768 

—————— 

9Many other exceptions to the hearsay rules similarly rest on the 

belief that certain statements are, by their nature, made for a purpose

other than use in a prosecution and therefore should not be barred by

hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement

by a co-conspirator during and in furtherance of the conspiracy); 803(4)

(Statements for Purposes of Medical Diagnosis or Treatment); 803(6)

(Records of Regularly Conducted Activity); 803(8) (Public Records and

Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar 

Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against

Interest); see also Melendez-Diaz v. Massachusetts, 557 U. S. __, __ 

(2009) (slip op., at 18) (“Business and public records are generally

admissible absent confrontation not because they qualify under an

exception to the hearsay rules, but because—having been created for

the administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial—they are not testimonial”); 

Giles v. California, 554 U. S., at 376 (noting in the context of domestic

violence that “[s]tatements to friends and neighbors about abuse and

intimidation and statements to physicians in the course of receiving

treatment would be excluded, if at all, only by hearsay rules”); Crawford, 541 U. S., at 56 (“Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business 

records or statements in furtherance of a conspiracy”). 
16 MICHIGAN v. BRYANT 

Opinion of the Court 

N. W. 2d, at 71. But in doing so, the court construed Davis 

to have decided more than it did and thus employed an

unduly narrow understanding of “ongoing emergency” that 

Davis does not require.

First, the Michigan Supreme Court repeatedly and

incorrectly asserted that Davis “defined” “‘ongoing emergency.’” 483 Mich., at 147, 768 N. W. 2d, at 73; see also 

id., at 144, 768 N. W. 2d, at 71–72. In fact, Davis did not 

even define the extent of the emergency in that case. The 

Michigan Supreme Court erroneously read Davis as deciding that “the statements made after the defendant stopped 

assaulting the victim and left the premises did not occur 

during an ‘ongoing emergency.’” 483 Mich., at 150, n. 15, 

768 N. W. 2d, at 75, n. 15. We explicitly explained in 

Davis, however, that we were asked to review only the

testimonial nature of Michelle McCottry’s initial statements during the 911 call; we therefore merely assumed 

the correctness of the Washington Supreme Court’s holding that admission of her other statements was harmless,

without deciding whether those subsequent statements

were also made for the primary purpose of resolving an

ongoing emergency. 547 U. S., at 829. 

Second, by assuming that Davis defined the outer 

bounds of “ongoing emergency,” the Michigan Supreme

Court failed to appreciate that whether an emergency

exists and is ongoing is a highly context-dependent inquiry. See Brief for United States as Amicus Curiae 20. 

Davis and Hammon involved domestic violence, a known 

and identified perpetrator, and, in Hammon, a neutralized 

threat. Because Davis and Hammon were domestic violence cases, we focused only on the threat to the victims

and assessed the ongoing emergency from the perspective

of whether there was a continuing threat to them. 547 

U. S., at 827, 829–830. 

Domestic violence cases like Davis and Hammon often 

have a narrower zone of potential victims than cases 
Cite as: 562 U. S. ____ (2011) 17 

Opinion of the Court 

involving threats to public safety. An assessment of 

whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat

solely to the first victim has been neutralized because the 

threat to the first responders and public may continue. 

See 483 Mich., at 164, 768 N. W. 2d, at 82 (Corrigan, J., 

dissenting) (examining the threat to the victim, police, and

the public); Brief for United States as Amicus Curiae 19– 

20 (“An emergency posed by an unknown shooter who 

remains at large does not automatically abate just because 

the police can provide security to his first victim”). 

The Michigan Supreme Court also did not appreciate

that the duration and scope of an emergency may depend 

in part on the type of weapon employed. The court relied 

on Davis and Hammon, in which the assailants used their 

fists, as controlling the scope of the emergency here, which

involved the use of a gun. The problem with that reasoning is clear when considered in light of the assault on Amy 

Hammon. Hershel Hammon was armed only with his fists 

when he attacked his wife, so removing Amy to a separate 

room was sufficient to end the emergency. 547 U. S., at 

830–832. If Hershel had been reported to be armed with a 

gun, however, separation by a single household wall might 

not have been sufficient to end the emergency. Id., at 819. 

The Michigan Supreme Court’s failure to focus on the

context-dependent nature of our Davis decision also led it 

to conclude that the medical condition of a declarant is 

irrelevant. 483 Mich., at 149, 768 N. W. 2d, at 74 (“The 

Court said nothing at all that would remotely suggest that

whether the victim was in need of medical attention was 

in any way relevant to whether there was an ‘ongoing

emergency’”). But Davis and Hammon did not present

medical emergencies, despite some injuries to the victims.

547 U. S., at 818, 820. Thus, we have not previously 

considered, much less ruled out, the relevance of a victim’s 

severe injuries to the primary purpose inquiry. 
18 MICHIGAN v. BRYANT 

Opinion of the Court 

Taking into account the victim’s medical state does not,

as the Michigan Supreme Court below thought, “rende[r]

non-testimonial” “all statements made while the police are 

questioning a seriously injured complainant.” 483 Mich., 

at 149, 768 N. W. 2d, at 74. The medical condition of the 

victim is important to the primary purpose inquiry to the

extent that it sheds light on the ability of the victim to 

have any purpose at all in responding to police questions

and on the likelihood that any purpose formed would 

necessarily be a testimonial one. The victim’s medical 

state also provides important context for first responders 

to judge the existence and magnitude of a continuing

threat to the victim, themselves, and the public. 

As the Solicitor General’s brief observes, Brief for 

United States as Amicus Curiae 20, and contrary to the

Michigan Supreme Court’s claims, 483 Mich., at 147, 768 

N. W. 2d, at 73, none of this suggests that an emergency is

ongoing in every place or even just surrounding the victim 

for the entire time that the perpetrator of a violent crime 

is on the loose. As we recognized in Davis, “a conversation 

which begins as an interrogation to determine the need for

emergency assistance” can “evolve into testimonial statements.” 547 U. S., at 828 (internal quotation marks omitted). This evolution may occur if, for example, a declarant 

provides police with information that makes clear that

what appeared to be an emergency is not or is no longer an

emergency or that what appeared to be a public threat is 

actually a private dispute. It could also occur if a perpetrator is disarmed, surrenders, is apprehended, or, as in 

Davis, flees with little prospect of posing a threat to the 

public. Trial courts can determine in the first instance 

when any transition from nontestimonial to testimonial 

occurs,10 and exclude “the portions of any statement that 

—————— 

10Recognizing the evolutionary potential of a situation in criminal

law is not unique to the Confrontation Clause context. We noted in 
Cite as: 562 U. S. ____ (2011) 19 

Opinion of the Court 

have become testimonial, as they do, for example, with

unduly prejudicial portions of otherwise admissible evidence.” Id., at 829. 

Finally, our discussion of the Michigan Supreme Court’s 

misunderstanding of what Davis meant by “ongoing emergency” should not be taken to imply that the existence vel 

non of an ongoing emergency is dispositive of the testimonial inquiry. As Davis made clear, whether an ongoing

emergency exists is simply one factor—albeit an important 

factor—that informs the ultimate inquiry regarding the

“primary purpose” of an interrogation. Another factor the 

Michigan Supreme Court did not sufficiently account for is 

the importance of informality in an encounter between a 

victim and police. Formality is not the sole touchstone of 

our primary purpose inquiry because, although formality 

suggests the absence of an emergency and therefore an 

increased likelihood that the purpose of the interrogation

is to “establish or prove past events potentially relevant to 

later criminal prosecution,” id., at 822, informality does

not necessarily indicate the presence of an emergency or

the lack of testimonial intent. Cf. id., at 826 (explaining 

that Confrontation Clause requirements cannot “readily 

be evaded” by the parties deliberately keeping the written 

product of an interrogation informal “instead of having the 

declarant sign a deposition”). The court below, however, 

too readily dismissed the informality of the circumstances

in this case in a single brief footnote and in fact seems to 

have suggested that the encounter in this case was formal. 

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

—————— 

Davis that “[j]ust as, for Fifth Amendment purposes, ‘police officers can

and will distinguish almost instinctively between questions necessary

to secure their own safety or the safety of the public and questions

designed solely to elicit testimonial evidence from a suspect, . . . trial

courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.”

547 U. S., at 829 (quoting New York v. Quarles, 467 U. S., at 658–659). 
20 MICHIGAN v. BRYANT 

Opinion of the Court 

explain further below, the questioning in this case occurred in an exposed, public area, prior to the arrival of

emergency medical services, and in a disorganized fashion.

All of those facts make this case distinguishable from

the formal station-house interrogation in Crawford. See 

Davis, 547 U. S., at 827. 

C 

In addition to the circumstances in which an encounter 

occurs, the statements and actions of both the declarant 

and interrogators provide objective evidence of the primary purpose of the interrogation. See, e.g., Davis, 547 

U. S., at 827 (“[T]he nature of what was asked and answered in Davis, again viewed objectively, was such that 

the elicited statements were necessary to be able to resolve 

the present emergency, rather than simply to learn (as in 

Crawford) what had happened in the past” (first emphasis 

added)). The Michigan Supreme Court did, at least 

briefly, conduct this inquiry. 483 Mich., at 144–147, 768 

N. W. 2d, at 71–73. 

As the Michigan Supreme Court correctly recognized, 

id., at 140, n. 5, 768 N. W. 2d, at 69, n. 5, Davis requires a

combined inquiry that accounts for both the declarant and 

the interrogator.11 In many instances, the primary pur-

—————— 

11Some portions of Davis, however, have caused confusion about 

whether the inquiry prescribes examination of one participant to the

exclusion of the other. Davis’ language indicating that a statement’s 

testimonial or nontestimonial nature derives from “the primary purpose of the interrogation,” 547 U. S., at 822 (emphasis added), could be

read to suggest that the relevant purpose is that of the interrogator. In 

contrast, footnote 1 in Davis explains, “it is in the final analysis the

declarant’s statements, not the interrogator’s questions, that the 

Confrontation Clause requires us to evaluate.” Id., at 822–823, n. 1. 

Bryant draws on the footnote to argue that the primary purpose inquiry 

must be conducted solely from the perspective of the declarant, and

argues against adoption of a purpose-of-the-interrogator perspective.

Brief for Respondent 10–13; see also Brief for Richard D. Friedman as 

Amicus Curiae 5–15. But this statement in footnote 1 of Davis merely 
Cite as: 562 U. S. ____ (2011) 21 

Opinion of the Court 

pose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and

the answers. To give an extreme example, if the police say 

to a victim, “Tell us who did this to you so that we can

arrest and prosecute them,” the victim’s response that

“Rick did it,” appears purely accusatory because by virtue 

of the phrasing of the question, the victim necessarily has 

prosecution in mind when she answers. 

The combined approach also ameliorates problems that 

could arise from looking solely to one participant. Predominant among these is the problem of mixed motives

on the part of both interrogators and declarants. Police 

officers in our society function as both first responders and

criminal investigators. Their dual responsibilities may 

mean that they act with different motives simultaneously

or in quick succession. See New York v. Quarles, 467 U. S. 

649, 656 (1984) (“Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives—their own 

safety, the safety of others, and perhaps as well the desire

to obtain incriminating evidence from the suspect”); see

also Davis, 547 U. S., at 839 (THOMAS, J., concurring in 

judgment in part and dissenting in part) (“In many, if not

most, cases where police respond to a report of a crime, 

whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the 

perspective of the police, are both to respond to the emer-

—————— 

acknowledges that the Confrontation Clause is not implicated when 

statements are offered “for purposes other than establishing the truth 

of the matter asserted.” Crawford, 541 U. S., at 60, n. 9. An interrogator’s questions, unlike a declarant’s answers, do not assert the truth of 

any matter. The language in the footnote was not meant to determine 

how the courts are to assess the nature of the declarant’s purpose, but 

merely to remind readers that it is the statements, and not the questions, that must be evaluated under the Sixth Amendment. 
22 MICHIGAN v. BRYANT 

Opinion of the Court 

gency situation and to gather evidence”). 

Victims are also likely to have mixed motives when they

make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and

to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution 

of the assailant. A victim may want the attacker to be

incapacitated temporarily or rehabilitated. Alternatively, 

a severely injured victim may have no purpose at all in

answering questions posed; the answers may be simply 

reflexive. The victim’s injuries could be so debilitating

as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of

addressing an ongoing emergency or for the purpose of future prosecution.12 Taking into account a victim’s injuries 

does not transform this objective inquiry into a subjective 

one. The inquiry is still objective because it focuses on the 

understanding and purpose of a reasonable victim in the 

circumstances of the actual victim—circumstances that 

prominently include the victim’s physical state.

The dissent suggests, post, at 3–4 (opinion of SCALIA, J.),

that we intend to give controlling weight to the “intentions

of the police,” post, at 4. That is a misreading of our opinion. At trial, the declarant’s statements, not the interrogator’s questions, will be introduced to “establis[h] the 

truth of the matter asserted,” Crawford, 541 U. S., at 60, 

n. 9, and must therefore pass the Sixth Amendment test. 

—————— 

12 In such a situation, the severe injuries of the victim would undoubtedly also weigh on the credibility and reliability that the trier of

fact would afford to the statements. Cf. Advisory Committee’s Notes on

Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (noting that although

the “theory” of the excited utterance exception “has been criticized on

the ground that excitement impairs [the] accuracy of observation as 

well as eliminating conscious fabrication,” it “finds support in cases 

without number” (citing 6 J. Wigmore, Evidence §1750 (J. Chadbourn

rev. 1976))). 
Cite as: 562 U. S. ____ (2011) 23 

Opinion of the Court 

See n. 11, supra. In determining whether a declarant’s 

statements are testimonial, courts should look to all of the 

relevant circumstances. Even JUSTICE SCALIA concedes 

that the interrogator is relevant to this evaluation, post, 

at 3, and we agree that “[t]he identity of an interrogator,

and the content and tenor of his questions,” ibid., can illuminate the “primary purpose of the interrogation.” The 

dissent, see post, at 3–5 (opinion of SCALIA, J.), criticizes

the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not

always better, and courts making a “primary purpose”

assessment should not be unjustifiably restrained from 

consulting all relevant information, including the statements and actions of interrogators. 

Objectively ascertaining the primary purpose of the 

interrogation by examining the statements and actions of

all participants is also the approach most consistent with

our past holdings. E.g., Davis, 547 U. S., at 822–823, n. 1 

(noting that “volunteered testimony” is still testimony and 

remains subject to the requirements of the Confrontation

Clause). 

IV 

As we suggested in Davis, when a court must determine 

whether the Confrontation Clause bars the admission of a 

statement at trial, it should determine the “primary purpose of the interrogation” by objectively evaluating the

statements and actions of the parties to the encounter, in

light of the circumstances in which the interrogation 

occurs. The existence of an emergency or the parties’ 

perception that an emergency is ongoing is among the

most important circumstances that courts must take into

account in determining whether an interrogation is testimonial because statements made to assist police in

addressing an ongoing emergency presumably lack the

testimonial purpose that would subject them to the 
24 MICHIGAN v. BRYANT 

Opinion of the Court 

requirement of confrontation.13 As the context of this case 

brings into sharp relief, the existence and duration of an

emergency depend on the type and scope of danger posed 

to the victim, the police, and the public. 

Applying this analysis to the facts of this case is more 

difficult than in Davis because we do not have the luxury

of reviewing a transcript of the conversation between the 

victim and the police officers. Further complicating our

task is the fact that the trial in this case occurred before 

our decisions in Crawford and Davis. We therefore review 

a record that was not developed to ascertain the “primary

purpose of the interrogation.”

We first examine the circumstances in which the interrogation occurred. The parties disagree over whether 

there was an emergency when the police arrived at the gas 

station. Bryant argues, and the Michigan Supreme Court 

accepted, 483 Mich., at 147, 768 N. W. 2d, at 73, that there 

was no ongoing emergency because “there . . . was no

criminal conduct occurring. No shots were being fired, no 

one was seen in possession of a firearm, nor were any 

witnesses seen cowering in fear or running from the 

scene.” Brief for Respondent 27. Bryant, while conceding 

that “a serious or life-threatening injury creates a medical 

emergency for a victim,” id., at 30, further argues that a

declarant’s medical emergency is not relevant to the ongo-

—————— 

13Of course the Confrontation Clause is not the only bar to admissibility of hearsay statements at trial. State and federal rules of evidence 

prohibit the introduction of hearsay, subject to exceptions. Consistent 

with those rules, the Due Process Clauses of the Fifth and Fourteenth 

Amendments may constitute a further bar to admission of, for example, 

unreliable evidence. See Montana v. Egelhoff, 518 U. S. 37, 53 (1996)

(plurality opinion) (“[E]rroneous evidentiary rulings can, in combination, rise to the level of a due process violation”); Dutton v. Evans, 400 

U. S. 74, 96–97 (1970) (Harlan, J., concurring in result) (“[T]he Fifth

and Fourteenth Amendments’ commands that federal and state trials, 

respectively, must be conducted in accordance with due process of law”

is the “standard” by which to “test federal and state rules of evidence”). 
Cite as: 562 U. S. ____ (2011) 25 

Opinion of the Court 

ing emergency determination. 

In contrast, Michigan and the Solicitor General explain

that when the police responded to the call that a man had

been shot and found Covington bleeding on the gas station 

parking lot, “they did not know who Covington was,

whether the shooting had occurred at the gas station or at 

a different location, who the assailant was, or whether the 

assailant posed a continuing threat to Covington or others.” Brief for United States as Amicus Curiae 15; Brief 

for Petitioner 16; see also id., at 15 (“[W]hen an officer 

arrives on the scene and does not know where the perpetrator is, whether he is armed, whether he might have 

other targets, and whether the violence might continue

at the scene or elsewhere, interrogation that has the primary purpose of establishing those facts to assess the situation is designed to meet the ongoing emergency and is 

nontestimonial”).

The Michigan Supreme Court stated that the police

asked Covington, “what had happened, who had shot him, 

and where the shooting had occurred.” 483 Mich., at 143, 

768 N. W. 2d, at 71. The joint appendix contains the

transcripts of the preliminary examination, suppression

hearing, and trial testimony of five officers who responded 

to the scene and found Covington. The officers’ testimony

is essentially consistent but, at the same time, not specific. 

The officers basically agree on what information they

learned from Covington, but not on the order in which

they learned it or on whether Covington’s statements were 

in response to general or detailed questions. They all

agree that the first question was “what happened?” The 

answer was either “I was shot” or “Rick shot me.”14 

—————— 

14See App. 76 (testimony of Officer McCallister); id., at 101, 113–114 

(testimony of Sgt. Wenturine); id., at 127, 131–133 (testimony of Officer 

Stuglin). Covington told them that Rick had shot him through the back 

door of Rick’s house, id., at 127–128 (testimony of Officer Stuglin), 

located at the corner of Pennsylvania and Laura, id., at 102 (testimony 
26 MICHIGAN v. BRYANT 

Opinion of the Court 

As explained above, the scope of an emergency in terms 

of its threat to individuals other than the initial assailant 

and victim will often depend on the type of dispute involved. Nothing Covington said to the police indicated 

that the cause of the shooting was a purely private dispute

or that the threat from the shooter had ended. The record 

reveals little about the motive for the shooting. The police

officers who spoke with Covington at the gas station testified that Covington did not tell them what words Covington and Rick had exchanged prior to the shooting.15 What 

Covington did tell the officers was that he fled Bryant’s

back porch, indicating that he perceived an ongoing 

threat.16 The police did not know, and Covington did not 

tell them, whether the threat was limited to him. The 

—————— 

of Sgt. Wenturine), and that Covington recognized Rick by his voice, id., 

at 128 (testimony of Officer Stuglin). Covington also gave them a 

physical description of Rick. Id., at 84–85, 93–94 (testimony of Officer 

McAllister); id., at 103, 115 (testimony of Sgt. Wenturine); id., at 134 

(testimony of Officer Stuglin). 15See id., at 114 (“Q Did he tell you what Rick said? A He said they 

were having a conversation. Q Did he tell you what Rick said? A He

did not” (testimony of Sgt. Wenturine) (paragraph breaks omitted)); see

also id., at 79 (testimony of Officer McAllister); id., at 128 (testimony of 

Officer Stuglin). 16See id., at 127–128 (“A He said he’d went up, he went up to the 

back door of a house; that a person he said he knew, and he was knocking and he was knocking on the door he said he’d talked to somebody

through the door. He said he recognized the voice. Q Did he say who it 

was that he recognized the voice of? A That’s when he told me it was, 

he said it was Rick a/k/a Buster. Q And did he say what the conversation was about at the door? A I don’t, I don’t believe so. Q All right.

And did he say what happened there, whether or not they had a conversation or not, did he say what ended up happening? A He said what 

happened was that he heard a shot and then he started to turn to get 

off the porch and then another one and then that’s when he was hit by

a gunshot” (testimony of Officer Stuglin) (paragraph breaks omitted)).

Unlike the dissent’s apparent ability to read Covington’s mind, post, at 

6 (opinion of SCALIA, J.), we rely on the available evidence, which 

suggests that Covington perceived an ongoing threat. 
Cite as: 562 U. S. ____ (2011) 27 

Opinion of the Court 

potential scope of the dispute and therefore the emergency 

in this case thus stretches more broadly than those at

issue in Davis and Hammon and encompasses a threat

potentially to the police and the public.

This is also the first of our post-Crawford Confrontation 

Clause cases to involve a gun. The physical separation

that was sufficient to end the emergency in Hammon was 

not necessarily sufficient to end the threat in this case;

Covington was shot through the back door of Bryant’s

house. Bryant’s argument that there was no ongoing 

emergency because “[n]o shots were being fired,” Brief for 

Respondent 27, surely construes ongoing emergency too

narrowly. An emergency does not last only for the time 

between when the assailant pulls the trigger and the 

bullet hits the victim. If an out-of-sight sniper pauses 

between shots, no one would say that the emergency 

ceases during the pause. That is an extreme example and 

not the situation here, but it serves to highlight the implausibility, at least as to certain weapons, of construing

the emergency to last only precisely as long as the violent 

act itself, as some have construed our opinion in Davis. 

See Brief for Respondent 23–25.

At no point during the questioning did either Covington

or the police know the location of the shooter. In fact, 

Bryant was not at home by the time the police searched

his house at approximately 5:30 a.m. 483 Mich., at 136, 

768 N. W. 2d, at 67. At some point between 3 a.m. and 

5:30 a.m., Bryant left his house. At bottom, there was an

ongoing emergency here where an armed shooter, whose

motive for and location after the shooting were unknown,

had mortally wounded Covington within a few blocks

and a few minutes of the location where the police found 

Covington.17 

—————— 

17 It hardly bears mention that the emergency situation in this case is 

readily distinguishable from the “treasonous conspiracies of unknown 
28 MICHIGAN v. BRYANT 

Opinion of the Court 

This is not to suggest that the emergency continued 

until Bryant was arrested in California a year after the 

shooting. Id., at 137, 768 N. W. 2d, at 67. We need not 

decide precisely when the emergency ended because Covington’s encounter with the police and all of the statements he made during that interaction occurred within 

the first few minutes of the police officers’ arrival and

well before they secured the scene of the shooting—the

shooter’s last known location. 

We reiterate, moreover, that the existence vel non of an 

ongoing emergency is not the touchstone of the testimonial

inquiry; rather, the ultimate inquiry is whether the “primary purpose of the interrogation [was] to enable police 

assistance to meet [the] ongoing emergency.” Davis, 547 

U. S., at 822. We turn now to that inquiry, as informed by 

the circumstances of the ongoing emergency just described. The circumstances of the encounter provide important context for understanding Covington’s statements

to the police. When the police arrived at Covington’s side, 

their first question to him was “What happened?”18 Covington’s response was either “Rick shot me” or “I was 

shot,” followed very quickly by an identification of “Rick” 

—————— 

scope, aimed at killing or overthrowing the king,” post, at 11, about 

which JUSTICE SCALIA’s dissent is quite concerned. 18Although the dissent claims otherwise, post, at 7 (opinion of

SCALIA, J.), at least one officer asked Covington something akin to “how 

was he doing.” App. 131 (testimony of Officer Stuglin) (“A I approached

the subject, the victim, Mr. Covington, on the ground and had asked 

something like what happened or are you okay, something to that

line. . . . Q So you asked this man how are you, how are you doing? A 

Well, basically it’s, you know, what’s wrong, you know” (paragraph

breaks omitted)). The officers also testified about their assessment of 

Covington’s wounds. See id., at 35 (suppression hearing testimony of

Officer Brown) (“[H]e had blood . . . on the front of his body”); id., at 75 

(testimony of Officer McCallister) (“It appeared he had a stomach 

wound of a gunshot”); id., at 132 (testimony of Officer Stuglin) (“Q Did 

you see the wound? A Yes, I did. Q You had to move some clothing to 

do that? A Yes” (paragraph breaks omitted)). 
Cite as: 562 U. S. ____ (2011) 29 

Opinion of the Court 

as the shooter. App. 76. In response to further questions, 

Covington explained that the shooting occurred through 

the back door of Bryant’s house and provided a physical 

description of the shooter. When he made the statements, 

Covington was lying in a gas station parking lot bleeding 

from a mortal gunshot wound to his abdomen. His answers to the police officers’ questions were punctuated

with questions about when emergency medical services 

would arrive. Id., at 56–57 (suppression hearing testimony of Officer Brown). He was obviously in considerable 

pain and had difficulty breathing and talking. Id., at 75, 

83–84 (testimony of Officer McCallister); id., at 101, 110– 

111 (testimony of Sgt. Wenturine); id., at 126, 137 (testimony of Officer Stuglin). From this description of his

condition and report of his statements, we cannot say that

a person in Covington’s situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 

U. S., at 822. 

For their part, the police responded to a call that a man 

had been shot. As discussed above, they did not know

why, where, or when the shooting had occurred. Nor did 

they know the location of the shooter or anything else

about the circumstances in which the crime occurred.19 

—————— 

19Contrary to the dissent’s suggestion, post, at 8 (opinion of SCALIA, 

J.), and despite the fact that the record was developed prior to Davis’ 

focus on the existence of an “ongoing emergency,” the record contains 

some testimony to support the idea that the police officers were concerned about the location of the shooter when they arrived on the scene

and thus to suggest that the purpose of the questioning of Covington 

was to determine the shooter’s location. See App. 136 (testimony of

Officer Stuglin) (stating that upon arrival officers questioned the gas 

station clerk about whether the shooting occurred in the gas station 

parking lot and about concern for safety); see also ibid. (testimony of

Officer Stuglin) (“Q . . . So you have some concern, there may be a 

person with a gun or somebody, a shooter right there in the immediate

area? A Sure, yes. Q And you want to see that that area gets secured? 
30 MICHIGAN v. BRYANT 

Opinion of the Court 

The questions they asked—“what had happened, who had 

shot him, and where the shooting occurred,” 483 Mich., at 

143, 768 N. W. 2d, at 71—were the exact type of questions 

necessary to allow the police to “ ‘assess the situation, the 

threat to their own safety, and possible danger to the 

potential victim’ ” and to the public, Davis, 547 U. S., at 

832 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., 

Humboldt Cty., 542 U. S. 177, 186 (2004)), including to 

allow them to ascertain “whether they would be encountering a violent felon,”20 Davis, 547 U. S., at 827. In other 

words, they solicited the information necessary to enable 

them “to meet an ongoing emergency.” Id., at 822. 

Nothing in Covington’s responses indicated to the police

that, contrary to their expectation upon responding to a

call reporting a shooting, there was no emergency or that 

a prior emergency had ended. Covington did indicate that

he had been shot at another location about 25 minutes 

earlier, but he did not know the location of the shooter at 

the time the police arrived and, as far as we can tell from

the record, he gave no indication that the shooter, having 

shot at him twice, would be satisfied that Covington was

only wounded. In fact, Covington did not indicate any 

possible motive for the shooting, and thereby gave no

reason to think that the shooter would not shoot again if 

he arrived on the scene. As we noted in Davis, “initial 

inquiries” may “often . . . produce nontestimonial state-

—————— 

A Correct. Q For your safety as well as everyone else? A Correct” 

(paragraph breaks omitted)); id., at 82 (testimony of Officer McCallister). But see id., at 83 (cross-examination of Officer McAllister) (“Q You 

didn’t, you didn’t look around and say, gee, there might be a shooter 

around here, I better keep an eye open? A I did not, no. That could 

have been my partner I don’t know” (paragraph breaks omitted)). 20 Hiibel, like our post-Crawford Confrontation Clause cases, involved 

domestic violence, which explains the Court’s focus on the security of

the victim and the police: they were the only parties potentially threatened by the assailant. 542 U. S., at 186 (noting that the case involved a 

“domestic assault”). 
Cite as: 562 U. S. ____ (2011) 31 

Opinion of the Court 

ments.” Id., at 832. The initial inquiries in this case 

resulted in the type of nontestimonial statements we

contemplated in Davis. 

Finally, we consider the informality of the situation and 

the interrogation. This situation is more similar, though

not identical, to the informal, harried 911 call in Davis 

than to the structured, station-house interview in Crawford. As the officers’ trial testimony reflects, the situation 

was fluid and somewhat confused: the officers arrived at 

different times; apparently each, upon arrival, asked

Covington “what happened?”; and, contrary to the dissent’s portrayal, post, at 7–9 (opinion of SCALIA, J.), they 

did not conduct a structured interrogation. App. 84 (testimony of Officer McCallister) (explaining duplicate questioning, especially as to “what happened?”); id., at 101–102 

(testimony of Sgt. Wenturine) (same); id., at 126–127 

(testimony of Officer Stuglin) (same). The informality

suggests that the interrogators’ primary purpose was

simply to address what they perceived to be an ongoing

emergency, and the circumstances lacked any formality 

that would have alerted Covington to or focused him on

the possible future prosecutorial use of his statements. 

Because the circumstances of the encounter as well as 

the statements and actions of Covington and the police

objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an 

ongoing emergency,” Davis, 547 U. S., at 822, Covington’s

identification and description of the shooter and the location of the shooting were not testimonial hearsay. 

The Confrontation Clause did not bar their admission at 

Bryant’s trial. 

* * * 

For the foregoing reasons, we hold that Covington’s

statements were not testimonial and that their admission 
32 MICHIGAN v. BRYANT 

Opinion of the Court 

at Bryant’s trial did not violate the Confrontation Clause.

We leave for the Michigan courts to decide on remand 

whether the statements’ admission was otherwise permitted by state hearsay rules. The judgment of the Supreme 

Court of Michigan is vacated, and the case is remanded for 

further proceedings not inconsistent with this opinion. 

It is so ordered. 

JUSTICE KAGAN took no part in the consideration or 

decision of this case. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

THOMAS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 09–150 

MICHIGAN, PETITIONER v. RICHARD PERRY 

BRYANT 

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011] 

JUSTICE THOMAS, concurring in the judgment. 

I agree with the Court that the admission of Covington’s

out-of-court statements did not violate the Confrontation 

Clause, but I reach this conclusion because Covington’s

questioning by police lacked sufficient formality and solemnity for his statements to be considered “testimonial.” 

See Crawford v. Washington, 541 U. S. 36, 68 (2004).

In determining whether Covington’s statements to 

police implicate the Confrontation Clause, the Court 

evaluates the “‘primary purpose’” of the interrogation. 

Ante, at 12. The majority’s analysis⎯which relies on, 

inter alia, what the police knew when they arrived at the

scene, the specific questions they asked, the particular 

information Covington conveyed, the weapon involved, 

and Covington’s medical condition⎯illustrates the uncertainty that this test creates for law enforcement and the 

lower courts. Ante, at 25–31. I have criticized the 

primary-purpose test as “an exercise in fiction” that is

“disconnected from history” and “yields no predictable

results.” Davis v. Washington, 547 U. S. 813, 839, 838 

(2006) (opinion concurring in judgment in part and dissenting in part).

Rather than attempting to reconstruct the “primary

purpose” of the participants, I would consider the extent to 

which the interrogation resembles those historical prac-
2 MICHIGAN v. BRYANT 

THOMAS, J., concurring in judgment 

tices that the Confrontation Clause addressed. See, e.g., 

id., at 835–836 (describing “practices that occurred under

the English bail and committal statutes passed during the 

reign of Queen Mary”). As the majority notes, Covington

interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. Ante, 

at 19–20, 31. The police questioning was not “a formalized 

dialogue,” did not result in “formalized testimonial materials” such as a deposition or affidavit, and bore no “indicia of solemnity.” Davis, supra, at 840, 837 (opinion of 

THOMAS, J.); see also Giles v. California, 554 U. S. 353, 

377–378 (2008) (THOMAS, J., concurring). Nor is there any

indication that the statements were offered at trial “in 

order to evade confrontation.” Davis, supra, at 840. This 

interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate. Covington thus did not “bea[r] testimony” against

Bryant, Crawford, supra, at 51, and the introduction of his 

statements at trial did not implicate the Confrontation 

Clause. I concur in the judgment. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 09–150 

MICHIGAN, PETITIONER v. RICHARD PERRY 

BRYANT 

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011] 

JUSTICE SCALIA, dissenting. 

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary 

purpose, not of obtaining and preserving his testimony 

regarding his killer, but of protecting him, them, and 

others from a murderer somewhere on the loose—is so 

transparently false that professing to believe it demeans

this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it

affects, after all, only the case at hand. In its vain attempt 

to make the incredible plausible, however—or perhaps as

an intended second goal—today’s opinion distorts our 

Confrontation Clause jurisprudence and leaves it in a

shambles. Instead of clarifying the law, the Court makes 

itself the obfuscator of last resort. Because I continue to 

adhere to the Confrontation Clause that the People

adopted, as described in Crawford v. Washington, 541 

U. S. 36 (2004), I dissent. 

I 

A 

The Confrontation Clause of the Sixth Amendment, 

made binding on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides

that “[i]n all criminal prosecutions, the accused shall enjoy 
2 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

the right . . . to be confronted with the witnesses against

him.” In Crawford, we held that this provision guarantees

a defendant his common-law right to confront those “who

‘bear testimony’” against him. 541 U. S., at 51. A witness 

must deliver his testimony against the defendant in person, or the prosecution must prove that the witness is

unavailable to appear at trial and that the defendant 

has had a prior opportunity for cross-examination. Id., at 

53–54. 

Not all hearsay falls within the Confrontation Clause’s 

grasp. At trial a witness “bears testimony” by providing

“‘[a] solemn declaration or affirmation . . . for the purpose

of establishing or proving some fact.’” Id., at 51 (quoting 2

N. Webster, An American Dictionary of the English Language (1828)). The Confrontation Clause protects defendants only from hearsay statements that do the same. 

Davis v. Washington, 547 U. S. 813, 823–824 (2006). In 

Davis, we explained how to identify testimonial hearsay 

prompted by police questioning in the field. A statement 

is testimonial “when the circumstances objectively indicate . . . that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later 

criminal prosecution.” Id., at 822. When, however, the 

circumstances objectively indicate that the declarant’s

statements were “a cry for help [o]r the provision of information enabling officers immediately to end a threatening

situation,” id., at 832, they bear little resemblance to incourt testimony. “No ‘witness’ goes into court to proclaim 

an emergency and seek help.” Id., at 828. 

Crawford and Davis did not address whose perspective 

matters—the declarant’s, the interrogator’s, or both— 

when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from 

any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more 
Cite as: 562 U. S. ____ (2011) 3 

SCALIA, J., dissenting 

than a narrative of past events; it is a solemn declaration 

made in the course of a criminal trial. For an out-of-court 

statement to qualify as testimonial, the declarant must 

intend the statement to be a solemn declaration rather 

than an unconsidered or offhand remark; and he must 

make the statement with the understanding that it may

be used to invoke the coercive machinery of the State

against the accused.1 See Friedman, Grappling with the

Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259 

(2005). That is what distinguishes a narrative told to a

friend over dinner from a statement to the police. See 

Crawford, supra, at 51. The hidden purpose of an interrogator cannot substitute for the declarant’s intentional

solemnity or his understanding of how his words may be

used. 

A declarant-focused inquiry is also the only inquiry that 

would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation. See Davis, supra, at 822–823, n. 1. An inquiry

into an officer’s purposes would make no sense when a

declarant blurts out “Rick shot me” as soon as the officer 

arrives on the scene. I see no reason to adopt a different

test—one that accounts for an officer’s intent—when the 

officer asks “what happened” before the declarant makes

his accusation. (This does not mean the interrogator is

irrelevant. The identity of an interrogator, and the content and tenor of his questions, can bear upon whether a

declarant intends to make a solemn statement, and envisions its use at a criminal trial. But none of this means 

that the interrogator’s purpose matters.) 

In an unsuccessful attempt to make its finding of emer-

—————— 

1 I remain agnostic about whether and when statements to nonstate

actors are testimonial. See Davis v. Washington, 547 U. S. 813, 823, 

n. 2 (2006). 
4 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

gency plausible, the Court instead adopts a test that looks

to the purposes of both the police and the declarant. It 

claims that this is demanded by necessity, fretting that a

domestic-violence victim may want her abuser briefly 

arrested—presumably to teach him a lesson—but not 

desire prosecution. See ante, at 22. I do not need to probe

the purposes of the police to solve that problem. Even if a 

victim speaks to the police “to establish or prove past 

events” solely for the purpose of getting her abuser arrested, she surely knows her account is “potentially relevant to later criminal prosecution” should one ensue. 

Davis, supra, at 822. 

The Court also wrings its hands over the possibility that 

“a severely injured victim” may lack the capacity to form a 

purpose, and instead answer questions “reflexive[ly].” 

Ante, at 22. How to assess whether a declarant with 

diminished capacity bore testimony is a difficult question, 

and one I do not need to answer today. But the Court’s 

proposed answer—to substitute the intentions of the police 

for the missing intentions of the declarant—cannot be the 

correct one. When the declarant has diminished capacity,

focusing on the interrogators make less sense, not more. 

The inquiry under Crawford turns in part on the actions 

and statements of a declarant’s audience only because 

they shape the declarant’s perception of why his audience

is listening and therefore influence his purpose in making

the declaration. See 541 U. S., at 51. But a person who 

cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to 

say. As far as I can tell, the Court’s substituted-intent 

theory “has nothing to be said for it except that it can

sometimes make our job easier,” Jerman v. Carlisle, 

McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. ___, 

___ (2010) (SCALIA, J., concurring in part and concurring

in judgment) (slip op., at 2).

The Court claims one affirmative virtue for its focus on 
Cite as: 562 U. S. ____ (2011) 5 

SCALIA, J., dissenting 

the purposes of both the declarant and the police: It “ameliorates problems that . . . arise” when declarants have

“mixed motives.” Ante, at 21. I am at a loss to know how. 

Sorting out the primary purpose of a declarant with mixed

motives is sometimes difficult. But adding in the mixed 

motives of the police only compounds the problem. Now 

courts will have to sort through two sets of mixed motives

to determine the primary purpose of an interrogation.

And the Court’s solution creates a mixed-motive problem

where (under the proper theory) it does not exist—viz., 

where the police and the declarant each have one motive, 

but those motives conflict. The Court does not provide an 

answer to this glaringly obvious problem, probably because it does not have one. 

The only virtue of the Court’s approach (if it can be

misnamned a virtue) is that it leaves judges free to reach

the “fairest” result under the totality of the circumstances.

If the dastardly police trick a declarant into giving an

incriminating statement against a sympathetic defendant,

a court can focus on the police’s intent and declare the 

statement testimonial. If the defendant “deserves” to go to 

jail, then a court can focus on whatever perspective is 

necessary to declare damning hearsay nontestimonial. 

And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately,

under this malleable approach “the guarantee of confrontation is no guarantee at all.” Giles v. California, 554 

U. S. 353, 375 (2008) (plurality). 

B 

Looking to the declarant’s purpose (as we should), this is 

an absurdly easy case. Roughly 25 minutes after Anthony 

Covington had been shot, Detroit police responded to a 911

call reporting that a gunshot victim had appeared at a

neighborhood gas station. They quickly arrived at the

scene, and in less than 10 minutes five different Detroit 
6 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

police officers questioned Covington about the shooting.

Each asked him a similar battery of questions: “what 

happened” and when, App. 39, 126, “who shot” the victim,” 

id., at 22, and “where” did the shooting take place, id., at 

132. See also id., at 113. After Covington would answer,

they would ask follow-up questions, such as “how tall is”

the shooter, id., at 134, “[h]ow much does he weigh,” ibid. 

what is the exact address or physical description of the 

house where the shooting took place, and what chain

of events led to the shooting. The battery relented when

the paramedics arrived and began tending to Covington’s

wounds. 

From Covington’s perspective, his statements had little 

value except to ensure the arrest and eventual prosecution

of Richard Bryant. He knew the “threatening situation,” 

Davis, 547 U. S., at 832, had ended six blocks away and 25 

minutes earlier when he fled from Bryant’s back porch. 

See 483 Mich. 132, 135–136, 768 N.W. 2d 65, 67 (2009);

App. 105. Bryant had not confronted him face-to-face 

before he was mortally wounded, instead shooting him

through a door. See 483 Mich., at 136–137, 768 N.W. 2d, 

at 67. Even if Bryant had pursued him (unlikely), and 

after seeing that Covington had ended up at the gas station was unable to confront him there before the police

arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington 

was surrounded by five armed police officers. And Covington knew the shooting was the work of a drug dealer, not a 

spree killer who might randomly threaten others. Id., at 

135, 137, 768 N.W. 2d, at 67. 

Covington’s knowledge that he had nothing to fear 

differs significantly from Michelle McCottry’s state of 

mind during her “frantic” statements to a 911 operator at 

issue in Davis, 547 U. S., at 827. Her “call was plainly a

call for help against a bona fide physical threat” describing

“events as they were actually happening.” Ibid. She did 
Cite as: 562 U. S. ____ (2011) 7 

SCALIA, J., dissenting 

not have the luxuries of police protection and of time and 

space separating her from immediate danger that Covington enjoyed when he made his statements. See id., at 831. 

Covington’s pressing medical needs do not suggest that

he was responding to an emergency, but to the contrary

reinforce the testimonial character of his statements. He 

understood the police were focused on investigating a past

crime, not his medical needs. None of the officers asked 

Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted

to administer first aid.2 They instead primarily asked

questions with little, if any, relevance to Covington’s dire

situation. Police, paramedics, and doctors do not need to 

know the address where a shooting took place, the name of 

the shooter, or the shooter’s height and weight to provide 

proper medical care. Underscoring that Covington understood the officers’ investigative role, he interrupted their

interrogation to ask “when is EMS coming?” App. 57.

When, in other words, would the focus shift to his medical 

needs rather than Bryant’s crime? 

Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at 

a trial; it would have been a routine direct examination. 

See Davis, 547 U. S., at 830. Like a witness, Covington

recounted in detail how a past criminal event began and 

progressed, and like a prosecutor, the police elicited that 

account through structured questioning. Preventing the 

—————— 

2Officer Stuglin’s testimony does not undermine my assessment of 

the officers’ behavior, although the Court suggests otherwise. See ante, 

at 28, n. 18. Officer Stuglin first testified that he “asked something like

what happened or are you okay, something to that line.” App., 131.

When pressed on whether he asked “how are you doing?,” he responded, 

“Well, basically . . . what’s wrong.” Ibid. Other officers were not so 

equivocal: They admitted they had no need to “ask him how he was 

doing. . . . It was very obvious how he was doing.” Id., at 110; see also 

id., at 19. 
8 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

admission of “weaker substitute[s] for live testimony at 

trial” such as this, id., at 828 (internal quotation marks 

omitted), is precisely what motivated the Framers to adopt 

the Confrontation Clause and what motivated our decisions in Crawford and in Hammon v. Indiana, decided 

with Davis. Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station

parking lot or in a police interrogation room. 

C 

Worse still for the repute of today’s opinion, this is an 

absurdly easy case even if one (erroneously) takes the 

interrogating officers’ purpose into account. The five 

officers interrogated Covington primarily to investigate

past criminal events. None—absolutely none—of their 

actions indicated that they perceived an imminent threat. 

They did not draw their weapons, and indeed did not 

immediately search the gas station for potential shooters.3 

To the contrary, all five testified that they questioned 

Covington before conducting any investigation at the scene. 

Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers

started his interrogation by asking what would have been

the obvious first question if any hint of such a fear existed:

Where is the shooter? 

But do not rely solely on my word about the officers’ 

primary purpose. Listen to Sergeant Wenturine, who 

candidly admitted that he interrogated Covington because

he “ha[d] a man here that [he] believe[d] [was] dying [so 

—————— 

3The Court cites Officer Stuglin’s testimony that “I think [Brown and 

Pellerito] did a little bit of both” joining the interrogation and helping 

to secure the scene. Id., at 135–136. But the point is not whether they

did both; it is whether they moved to secure the area first. No officer’s 

testimony suggests this. Pellerito testified that he, Stuglin, and Brown

arrived at the scene at roughly the same time and all three immediately went to Covington. See id., at 17–18. The testimony of Brown 

and McCallister corroborate that account. See id., at 34–36, 79–82. 
Cite as: 562 U. S. ____ (2011) 9 

SCALIA, J., dissenting 

he was] gonna find out who did this, period.” App. 112. In 

short, he needed to interrogate Covington to solve a crime.

Wenturine never mentioned an interest in ending an

ongoing emergency.

At the very least, the officers’ intentions turned investigative during their 10-minute encounter with Covington, 

and the conversation “evolve[d] into testimonial statements.” Davis, 547 U. S., at 828 (internal quotation 

marks omitted). The fifth officer to arrive at the scene did 

not need to run straight to Covington and ask a battery of

questions “to determine the need for emergency assistance,” Ibid. He could have asked his fellow officers, who 

presumably had a better sense of that than Covington—

and a better sense of what he could do to assist. No, the 

value of asking the same battery of questions a fifth time 

was to ensure that Covington told a consistent story and 

to see if any new details helpful to the investigation and 

eventual prosecution would emerge. Having the testimony 

of five officers to recount Covington’s consistent story 

undoubtedly helped obtain Bryant’s conviction. (Which

came, I may note, after the first jury could not reach a

verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.) 

D 

A final word about the Court’s active imagination. The 

Court invents a world where an ongoing emergency exists

whenever “an armed shooter, whose motive for and location after the shooting [are] unknown, . . . mortally

wound[s]” one individual “within a few blocks and [25] 

minutes of the location where the police” ultimately find 

that victim. Ante, at 27. Breathlessly, it worries that a

shooter could leave the scene armed and ready to pull the

trigger again. See ante, at 17–18, 27, 30. Nothing suggests the five officers in this case shared the Court’s 
10 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

dystopian4 view of Detroit, where drug dealers hunt their

shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving 

a trail of bodies behind. Because almost 90 percent of

murders involve a single victim,5 it is much more likely—

indeed, I think it certain—that the officers viewed their 

encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate 

consequences. 

The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in 

the Court’s imagination, the emergency persisted for 

confrontation purposes at least until the police learned his

“motive for and location after the shooting.” Ante, at 27. 

It may have persisted in this case until the police “secured 

the scene of the shooting” two-and-a-half hours later. 

Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large—especially if, as 

the Court speculates, he may be a spree-killer.) This is a 

dangerous definition of emergency. Many individuals who

testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the 

police can plausibly claim that a “potential threat to . . .

the public” persisted through those first few hours, ante, 

at 12 (and if the claim is plausible here it is always plau-

—————— 

4The opposite of utopian. The word was coined by John Stuart Mill

as a caustic description of British policy. See 190 Hansard’s Parliamentary Debates, Third Series 1517 (3d Ser. 1868); 5 Oxford English

Dictionary 13 (2d ed. 1989). 5See Federal Bureau of Investigation, Crime in the United States,

2009: Expanded Homicide Data Table 4, Murder by Victim/Offender

Situations, 2009 (Sept. 2010), online at http://www2.fbi.gov/ucr/

cius2009/offenses/expanded_information/data/shrtable_04.html (as visited

Feb. 25, 2011, and available in Clerk of Court’s case file). 
Cite as: 562 U. S. ____ (2011) 11 

SCALIA, J., dissenting 

sible) a defendant will have no constitutionally protected 

right to exclude the uncross-examined testimony of such

witnesses. His conviction could rest (as perhaps it did

here) solely on the officers’ recollection at trial of the 

witnesses’ accusations. 

The Framers could not have envisioned such a hollow 

constitutional guarantee. No framing-era confrontation

case that I know of, neither here nor in England, took such

an enfeebled view of the right to confrontation. For example, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202,

202–203 (K. B. 1779), held inadmissible a mother’s account of her young daughter’s statements “immediately on

her coming home” after being sexually assaulted. The 

daughter needed to testify herself. But today’s majority

presumably would hold the daughter’s account to her

mother a nontestimonial statement made during an ongoing emergency. She could not have known whether her 

attacker might reappear to attack again or attempt to

silence the lone witness against him. Her mother likely 

listened to the account to assess the threat to her own 

safety and to decide whether the rapist posed a threat

to the community that required the immediate intervention of the local authorities. Cf. ante, at 29–30. Utter 

nonsense. 

The 16th- and 17th-century English treason trials that

helped inspire the Confrontation Clause show that today’s

decision is a mistake. The Court’s expansive definition of 

an “ongoing emergency” and its willingness to consider the

perspective of the interrogator and the declarant cast a 

more favorable light on those trials than history or our 

past decisions suggest they deserve. Royal officials conducted many of the ex parte examinations introduced 

against Sir Walter Raleigh and Sir John Fenwick while 

investigating alleged treasonous conspiracies of unknown

scope, aimed at killing or overthrowing the King. See 

Brief for National Association of Criminal Defense Law-
12 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

yers as Amicus Curiae 21–22, and n. 11. Social stability in

16th- and 17th-century England depended mainly on the 

continuity of the ruling monarch, cf. 1 J. Stephen, A History of the Criminal Law of England 354 (1883), so such a

conspiracy posed the most pressing emergency imaginable.

Presumably, the royal officials investigating it would have 

understood the gravity of the situation and would have 

focused their interrogations primarily on ending the 

threat, not on generating testimony for trial. I therefore 

doubt that under the Court’s test English officials acted 

improperly by denying Raleigh and Fenwick the opportunity to confront their accusers “face to face,” id., at 326. 

Under my approach, in contrast, those English trials

remain unquestionably infamous. Lord Cobham did not 

speak with royal officials to end an ongoing emergency. 

He was a traitor! He spoke, as Raleigh correctly observed, 

to establish Raleigh’s guilt and to save his own life. See 1 

D. Jardine, Criminal Trials 435 (1832). Cobham’s statements, when assessed from his perspective, had only a

testimonial purpose. The same is true of Covington’s 

statements here. 

II 

A 

But today’s decision is not only a gross distortion of the

facts. It is a gross distortion of the law—a revisionist

narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.

According to today’s opinion, the Davis inquiry into

whether a declarant spoke to end an ongoing emergency or

rather to “prove past events potentially relevant to later 

criminal prosecution,” 547 U. S., at 822, is not aimed at 

answering whether the declarant acted as a witness.

Instead, the Davis inquiry probes the reliability of a declarant’s statements, “[i]mplicit[ly]” importing the excited-
Cite as: 562 U. S. ____ (2011) 13 

SCALIA, J., dissenting 

utterances hearsay exception into the Constitution. Ante, 

at 14–15. A statement during an ongoing emergency is

sufficiently reliable, the Court says, “because the prospect

of fabrication . . . is presumably significantly diminished,”

so it “does not [need] to be subject to the crucible of crossexamination.” Id., at 14. 

Compare that with the holding of Crawford: “Where 

testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is

the one the Constitution actually prescribes: confrontation.” 541 U. S., at 68–69. Today’s opinion adopts, for

emergencies and faux emergencies at least, the discredited

logic of White v. Illinois, 502 U. S. 346, 355–356, and n. 8 

(1992), and Idaho v. Wright, 497 U. S. 805, 819–820 

(1990). White is, of course, the decision that both Crawford and Davis found most incompatible with the text and 

history of the Confrontation Clause. See Davis, supra, at 

825; Crawford, supra, at 58, n. 8. (This is not to say that

that “reliability” logic can actually justify today’s result: 

Twenty-five minutes is plenty of time for a shooting victim

to reflect and fabricate a false story.) 

The Court announces that in future cases it will look to 

“standard rules of hearsay, designed to identify some 

statements as reliable,” when deciding whether a statement is testimonial. Ante, at 11–12. Ohio v. Roberts, 448 

U. S. 56 (1980) said something remarkably similar: An 

out-of-court statement is admissible if it “falls within a 

firmly rooted hearsay exception” or otherwise “bears adequate ‘indicia of reliability.’” Id., at 66. We tried that 

approach to the Confrontation Clause for nearly 25 years

before Crawford rejected it as an unworkable standard 

unmoored from the text and the historical roots of the 

Confrontation Clause. See 541 U. S., at 54, 60, 63–65, 67– 

68. The arguments in Raleigh’s infamous 17th-century 

treason trial contained full debate about the reliability of 

Lord Cobham’s ex parte accusations, see Raleigh’s Case, 
14 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

2 How. St. Tr. 1, 14, 17, 19–20, 22–23, 29 (1603); that 

case remains the canonical example of a Confrontation

Clause violation, not because Raleigh should have won the

debate but because he should have been allowed 

cross-examination. 

The Court attempts to fit its resurrected interest in

reliability into the Crawford framework, but the result is 

incoherent. Reliability, the Court tells us, is a good indicator of whether “a statement is . . . an out-of-court substitute for trial testimony.” Ante, at 11. That is patently 

false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial 

statements alike come in varying degrees of reliability. 

An eyewitness’s statements to the police after a fenderbender, for example, are both reliable and testimonial.

Statements to the police from one driver attempting to 

blame the other would be similarly testimonial but rarely

reliable. 

The Court suggests otherwise because it “misunderstands the relationship” between qualification for one of 

the standard hearsay exceptions and exemption from the 

confrontation requirement. Melendez-Diaz v. Massachusetts, 557 U. S. ___, ___ (2009) (slip op., at 18). That relationship is not a causal one. Hearsay law exempts business records, for example, because businesses have a 

financial incentive to keep reliable records. See Fed. Rule 

Evid. 803(6). The Sixth Amendment also generally admits 

business records into evidence, but not because the records 

are reliable or because hearsay law says so. It admits 

them “because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not” weaker 

substitutes for live testimony. Melendez-Diaz, 557 U. S., 

at ___ (slip op., at 18). Moreover, the scope of the exemption from confrontation and that of the hearsay exceptions

also are not always coextensive. The reliability logic of the 
Cite as: 562 U. S. ____ (2011) 15 

SCALIA, J., dissenting 

business-record exception would extend to records maintained by neutral parties providing litigation-support 

services, such as evidence testing. The Confrontation 

Clause is not so forgiving. Business records prepared

specifically for use at a criminal trial are testimonial and

require confrontation. See ibid. 

Is it possible that the Court does not recognize the

contradiction between its focus on reliable statements and 

Crawford’s focus on testimonial ones? Does it not realize 

that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a

thousand unprincipled distinctions without ever explicitly

overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and 

restraint. And it would force the Court to explain how 

the Justices’ preference comports with the meaning of the

Confrontation Clause that the People adopted—or to

confess that only the Justices’ preference really matters. 

B 

The Court recedes from Crawford in a second significant 

way. It requires judges to conduct “open-ended balancing 

tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon

reliability. 541 U. S., at 63, 68. Where the prosecution

cries “emergency,” the admissibility of a statement now 

turns on “a highly context-dependent inquiry,” ante, at 16, 

into the type of weapon the defendant wielded, see ante, at 

17; the type of crime the defendant committed, see ante, at 

12, 16–17; the medical condition of the declarant, see ante, 

at 17–18; if the declarant is injured, whether paramedics

have arrived on the scene, see ante, at 20; whether the 

encounter takes place in an “exposed public area,” ibid.; 

whether the encounter appears disorganized, see ibid.; 

whether the declarant is capable of forming a purpose, see 

ante, at 22; whether the police have secured the scene of 
16 MICHIGAN v. BRYANT 

SCALIA, J., dissenting 

the crime, see ante, at 28; the formality of the statement, 

see ante, at 19; and finally, whether the statement strikes

us as reliable, see ante, at 11–12, 14–15. This is no better 

than the nine-factor balancing test we rejected in Crawford, 541 U. S., at 63. I do not look forward to resolving 

conflicts in the future over whether knives and poison are 

more like guns or fists for Confrontation Clause purposes,

or whether rape and armed robbery are more like murder 

or domestic violence. 

It can be said, of course, that under Crawford analysis

of whether a statement is testimonial requires consideration of all the circumstances, and so is also something of a

multifactor balancing test. But the “reliability” test does 

not replace that analysis; it supplements it. As I understand the Court’s opinion, even when it is determined that 

no emergency exists (or perhaps before that determination 

is made) the statement would be found admissible as far 

as the Confrontation Clause is concerned if it is not 

testimonial. 

In any case, we did not disavow multifactor balancing

for reliability in Crawford out of a preference for rules

over standards. We did so because it “d[id] violence to” the

Framers’ design. Id., at 68. It was judges’ open-ended

determination of what was reliable that violated the trial 

rights of Englishmen in the political trials of the 16th and 

17th centuries. See, e.g., Throckmorton’s Case, 1 How. St. 

Tr. 869, 875–876 (1554); Raleigh’s Case, 2 How. St. Tr., at 

15–16, 24. The Framers placed the Confrontation Clause

in the Bill of Rights to ensure that those abuses (and the 

abuses by the Admiralty courts in colonial America) would 

not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of 

uncross-examined testimony in politically charged trials or

trials implicating threats to national security. See Crawford, supra, at 67–68; cf. Hamdi v. Rumsfeld, 542 U. S. 

507, 576–578 (2004) (SCALIA, J., dissenting). 
Cite as: 562 U. S. ____ (2011) 17 

SCALIA, J., dissenting 

* * * 

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James

Madison 269, 272 (G. Hunt ed. 1901). Both depend on a 

judicial culture that understands its constitutionally 

assigned role, has the courage to persist in that role when 

it means announcing unpopular decisions, and has the

modesty to persist when it produces results that go

against the judges’ policy preferences. Today’s opinion

falls far short of living up to that obligation—short on the 

facts, and short on the law. 

For all I know, Bryant has received his just deserts. But 

he surely has not received them pursuant to the procedures that our Constitution requires. And what has been 

taken away from him has been taken away from us all. 
_________________ 

_________________ 

Cite as: 562 U. S. ____ (2011) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 09–150 

MICHIGAN, PETITIONER v. RICHARD PERRY 

BRYANT 

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MICHIGAN

[February 28, 2011] 

JUSTICE GINSBURG, dissenting. 

I agree with JUSTICE SCALIA that Covington’s statements were testimonial and that “[t]he declarant’s intent

is what counts.” Ante, at 2 (dissenting opinion). Even if 

the interrogators’ intent were what counts, I further

agree, Covington’s statements would still be testimonial. 

Ante, at 8. It is most likely that “the officers viewed their

encounter with Covington [as] an investigation into a past

crime with no ongoing or immediate consequences.” Ante, 

at 10. Today’s decision, JUSTICE SCALIA rightly notes, 

“creates an expansive exception to the Confrontation 

Clause for violent crimes.” Ibid. In so doing, the decision

confounds our recent Confrontation Clause jurisprudence, 

ante, at 12, which made it plain that “[r]eliability tells us

nothing about whether a statement is testimonial,” ante, 

at 14 (emphasis deleted). 

I would add, however, this observation. In Crawford v. 

Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted 

that, in the law we inherited from England, there was a 

well-established exception to the confrontation requirement: The cloak protecting the accused against admission

of out-of-court testimonial statements was removed for 

dying declarations. This historic exception, we recalled in 

Giles v. California, 554 U. S. 353, 358 (2008); see id., at 

361–362, 368, applied to statements made by a person 
2 MICHIGAN v. BRYANT 

GINSBURG, J., dissenting 

about to die and aware that death was imminent. Were 

the issue properly tendered here, I would take up the

question whether the exception for dying declarations

survives our recent Confrontation Clause decisions. The 

Michigan Supreme Court, however, held, as a matter of 

state law, that the prosecutor had abandoned the issue. 

See 483 Mich. 132, 156–157, 768 N. W. 2d 65, 78 (2009). 

The matter, therefore, is not one the Court can address in 

this case.