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 per- spectives 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).
What Justice Scalia is describing in his dissent to Michigan v. Bryant is results-oriented jurisprudence: by judging the testimonial nature of a statement based on some amorphous mix of the interrogator’s intent and the declarant’s intent, the Court makes it possible for judges to decide based on the equities of the case whether an out-of-court statement is testimonial, and therefore requires cross-examination. Results-oriented jurisprudence is what it sounds like: judges deciding what the law is based on the anticipated results, rather than on underlying principles.
(Tangentially: aside from the typographical error in Scalia’s first parenthetical in the above quote, there is a logical flaw. Of course the result of the Bryant opinion can be misnamed a virtue; it can be misnamed a butterfly.)
Justice Scalia himself has fairly been accused of results-oriented judicial activism (see, for example, Bush v. Gore). That’s results-oriented jurisprudence at the highest level. But allowing trial courts to decide based on the defendant’s desert whether witnesses’ statements were testimonial is—even to Scalia—not virtuous.