Primary Purpose Test (PPT): Comes Now the Hearsay

An interesting part of Michigan v. Bryant is the hostility which bleeds through the decision to the decoupling of the hearsay exceptions from the confrontation clause. There is a hint that the dying declaration will be allowed under confrontation. We are also told “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” and that “in making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” As I read this, it is an invitation to go back to business as usual and recouple many of the hearsay exceptions to the confrontation clause.

Let's look at some of the major hearsay exceptions' primary purpose:

Excited Utterance - To express an emotional reaction.

The excited utterance almost has no purpose at all. It need not be, and often is not, in reaction to question. There seems to be no reason this would not pass the PPT.

Business Records / Shopkeep - To maintain a business.

The business record exception may even be more apt for the PPT than the emergency exception. Business records are kept without thought of any criminal prosecution. This is an exception I would expect to see litigated fairly quickly because there are all sorts of embezzlement and larceny charges wherein the books show the crime, but the actual individuals involved (cashiers, secretaries, managers) have moved on to other jobs in other places and can't be found.

State of Mind - To state an individual's current thoughts.

This could be a little more chancy. If someone blurts something out in reaction to a conversation with an officer it could fail the PPT. If it's someone in the middle of a robbery telling his co-offender that he wants to shoot the store manager it could pass.

Dying Declaration - To identify the killer.

The dying declaration is the one least likely to pass the PPT and it seems that it will get a pass solely because it is an old exception that found its trustworthiness in the belief that a man would not want to depart to face God with his last mortal act being the sin of false witness.

Michigan v. Bryant has pried open a can of worms. Now we get to spend the next several years litigating which of the hearsay exceptions are going to transfer to the confrontation clause and which are not.

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