The Court decided (4+1-2) Michigan v. Bryant, No. 09-150, today. The following summary is "borrowed" from SCOTUS blog:

The Court rules that a statement given to police by a wounded crime victim may be admitted as evidence at the trial if the victim dies before trial and thus does not appear. The Court rules that such a statement which identifed the shooter, was made for the primary purpose to enable police to deal with an emergency rather than the primary purpose of producing evidence of the crime.

It seems to be a straightforward application of Davis's "ongoing emergency" exception. Why on Earth weren't they proceeding under dying declaration?

IIRC, I don't think the prosecutors were able to establish a predicate for dying declarations. So they went with excited utterance.

You know, I can't decide which Scalia line I like best. That the majority's description of the case "is so transparently false that professing to believe it demeans this institution," or that "Instead of clarifying the law, the Court makes itself the obfuscator of last resort."

And that's only from the first paragraph!

Surely, Andrea, you wouldn't want a rehearing granted?

A rehearing on dying declaration wouldn't do any good, since it was apparently abandoned by the State at a lower level. It just seems very strange that they would do so.

I would describe the vote as a solid 6-2. Thomas' dissent just narrows the justification.

Scalia does sing. But he sings a bit too loudly and off-key.

I suspect he realizes that the new test of what is testimonial is just about as accommodating as the old test of reliability. A long way around to get back to the same place.

Bottom line is that a majority of SCOTUS is not going to let a dying man's words escape use in the courtroom.

As JB highlights, I can't count. But the case is interesting on several levels, notwithstanding that the dying declaration exception wasn't utlized:

(1) Sotomayor wrote the majority and (therefore?) Scalia dissagrees with the result; (2) The decision seems to amount to a withdrawal from Crawford at least for crimes in a public place and involving a deadly weapon; and (3) I'm not so sure we don't have a new standard of objectivity.

Overall, it maybe a precursor for returning to a Roberts-like formula.