Primary Purpose Test (PPT): What is it?

In its recent Michigan v. Bryant, the US Supreme Court added to its rather new jurisprudence on the Confrontation Clause and the developing “primary purpose” exception. Now, to be honest, the Supreme Court doesn't characterize this as an exception, but that's really a bit of legal sophistry. Here's the language from the 6th Amendment's right to confront an accuser:

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him

That's pretty unambiguous. If there's an accuser the accuser must be confrontable. Of course, every bit of evidence the prosecution offers is accusatory; if it wasn't it wouldn't be relevant. Therefore, any statement offered is covered by this constitutional mandate.

However, the constitutional mandate has never been strictly enforced. For a long time trial courts operated under the aegis of a US Supreme Court ruling which allowed statements in if they were sufficiently trustworthy to be slotted into one of the approximately gazillion exceptions to the hearsay rule. Effectively, this rendered the confrontation clause meaningless. Only the State rules of evidence mattered. Interestingly, that meant that constitutional interpretation under this strain of thought could mean that introduction of a statement was constitutional in one State and unconstitutional in another because of differences in evidentiary rules. For example, Virginia still recognizes the common law res gestae hearsay exception and other States have adopted versions of the federal rules of evidence and therefore do not have this exception; thus the constitution meant something different in Virginia.

In any event, in 2004 the US Supreme Court, under the lead of Justice Scalia, declared that the confrontation clause actually stood for the proposition that the defendant had a right to be confronted by his accusers in court. As Scalia is wont to do, he took the court in the direction of an absolutist interpretation. Confrontation means confrontation and all this trustworthiness under the hearsay exceptions was never written into the Constitution; therefore, the test isn't whether a statement is trustworthy, but only where it was spoken (in an adversary hearing with the ability to cross examine).

As you might imagine, this caused a great deal of rending of garments and gnashing of teeth among prosecutors; they immediately set out to counter this terrible, world-ending precedent. As well, there were great cries of joy from members of the defense bar; they immediately set out to have everything which wasn't actually nailed to the floor of the courtroom declared testimony. Trial and lower appellate courts did as they often do when faced with gawdawfully difficult opinions from the Supreme Court which might allow rapists, murderers, and drug users to walk free, they did their level best to ignore it for one legal reason or another.

Out of all this bubbled up the Primary Purpose Test. To understand the reasoning behind the PPT you must accept a certain first principal: Not all statements admitted as evidence are testimonial. Yes, yes, I know. Testimony is the making of statements during a trial or proceeding. However, we're not dealing with reality here, we're dealing with precedent from appellate courts and they have declared that while testimony is a distinct subset of statements, not all statements introduced into evidence are testimony. Having decided this, the courts next had to decide what rule could be used to sort the between testimonial and non-testimonial statements. Thus was born the PPT.

The PPT rule is fairly easy in concept. If a statement was made with the intent of leading to prosecution it is testimony. Of course, quite often statements are made with more than one purpose. Therefore, the judge must divine what the primary purpose of the statement was when made. The most likely non-testimonial statement is going to be a statement meant to lead to the handling of an ongoing emergency.

In other words, if the primary purpose of a statement was not meant to lead to, or aid in, prosecution it can be introduced into trial without the person who made the statement being present in court to be cross-examined.

Of course, whiles the rule is simple in its stating, it is not likely to be the most simple in its application. As well, the fact that a statement passes constitutional muster technically doesn't get it past evidentiary hearsay rules.

Part 2 of 4 - Part 3 will be up at 9 a.m. Tuesday.