Massachusetts Supreme Judicial Court applies “primary purpose” test in recent Domestic Assault and Battery Confrontation Clause decision

The Massachusetts Supreme Judicial Court applied the “primary purpose test” articulated by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ___ (February 28, 2011) in its recent decision of Commonwealth v. Beatrice. The Beatrice case demonstrates the dangerous erosion of the Sixth Amendment right of confrontation in domestic assault and battery cases. Click here to read the SJC opinion in Beatrice.

The Beatrice decision involved a very common circumstance in Massachusetts domestic assault cases where at the time of trial the alleged victim no longer wishes to testify and asserts either a Fifth Amendment privilege against self incrimination or exercises their martial privilege.

In cases with 911 calls, the Commonwealth can attempt to proceed with the case despite the noncooperation of the victim. The outcome of the trial will largely depend on the judge’s ruling as to the admissibility of the 911 call and the application of the United States Supreme Court decision in Bryant and Davis v. Washington, 547 U.S. 813 (2006).

In Michigan v. Bryant, the Supreme Court defined nontestimonial statements, not requiring the right of confrontation, as those statements when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet and ongoing emergency. The Supreme Court defined testimonial statements when circumstances objectively indicate that there is no ongoing emergency and that the primary purpose is to prove a past events potentially relevant to criminal prosecution. The Beatrice case directly raised the issue of the duration of the emergency and defining whether the right of confrontation applies to a statement having a dual purpose, to acquire medical attention and arrest the accused.

The United States Supreme Court in Bryant, confronted a situation where the victim had just been shot, was lying on the ground and was confronted by the police with the location of the assailant unknown. In that case, the Court stated the existence of an ongoing emergency is relevant to determine the primary purpose of the interrogation because an emergency focuses the participants on something other than proving past events potentially relevant to criminal prosecution. The Court added that “it focuses them on ending a threatening situation.”

Significantly, the Bryant Court in interpreting Davis and Hammon stressed that because Davis and Hammon were domestic violence cases, the court focused only on the threat to the victim in assessing the ongoing emergency from the perspective of whether there was a continuing threat to them. The Bryant Court held that the scope of the emergency is in part defined by the type of weapon employed and because the defendant in Hammon was armed only with his fists, removing the victim from the situation ended the emergency unlike if the defendant had a gun.

In Beatrice, the facts suggest that there was no ongoing emergency and the SJC’s broad interpretation of ongoing emergency would allow any complaint to the police close in time to the incident to come into evidence without the opportunity for cross examination. This represents a serious erosion of the right of confrontation and the right to a fair trial.

The alleged victim in Beatrice was no longer at the scene of the incident but was at a friend’s house; the facts of the case suggest the emergency was over because the victim was not around, she was in a different apartment and was no longer alone with him. The victim stated on the 911 call that she had been severely beaten, that it was urgent for the police to come her apartment because he was about to leave. The victim asked for a police car to stop the defendant and for an ambulance.

In a dangerous expansion of the primary purpose test, the SJC indicated that in a domestic assault and battery case it is reasonable to conclude that the ongoing emergency continues until the police arrive. The SJC stated “even if the assailant is not armed, a reasonable person would recognize that an enraged boyfriend might force entry into the neighbor’s apartment, or lie in wait until the victim leaves in an attempt to do future harm.

The reasoning of the SJC is contrary to the clear language in the Bryant and Davis decision regarding the scope of the ongoing emergency. If the Massachusetts criminal lawyer filed a petition for certiorari to the United States Supreme Court, it would present the court with a clear opportunity to determine the scope of the ongoing emergency when determining whether a statement is testimonial or nontestimonial.

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