Scalia takes aim at balancing
Richard D. Friedman
rdfrdman at umich.edu
Mon Mar 8 22:18:22 PST 2004
Before discussing Crawford, Ill disclose my interest: Ive been arguing
rather obsessively for several years for the result that the Court reached
today, I put in an amicus brief in the case, and I was second chair to
Crawfords counsel. So yes, I think this decision was a very good thing.
Whatever the value of balancing in other areas of constitutional law, this
is one that does not warrant it. The 6th amendment says in straightforward
and unqualified language that in all criminal prosecutions the accused
shall enjoy the right to be confronted with the witnesses against
him. That language may leave ambiguous at the fringes just what it means
to be a witness against the accused, and just what it means to be
confronted with the witnesses, but the amendment does not suggest that if
a person is a witness against an accused the accused may nevertheless not
have a right to be confronted with her because some other interest weighs
more heavily in the balance. One does not have to be a pure textualist or
any other type of originalist and I am not to believe that the text
here means what it says, that an accused is intended to have an absolute
right to confront those who are deemed witnesses against him, and that this
articulation expresses quite well a fundamental principle to which we can
and should adhere. I think Justice Scalia got it exactly right the
confrontation right ought to be regarded as absolute in he same way that
the right to a jury is.
The Court was not precise today about what the term witnesses means in
the Confrontation Clause; Crawford itself was such a core case that it did
not require demarcation of the edges. But the general approach is clear,
and the exact contours can be worked out in future cases.
In contrast, the doctrine that the Court discarded today paid no attention
to the constitutional text. Instead of grappling with the meaning of the
word witnesses, it made the Clause presumptively applicable to any
hearsay declaration a much broader category. But then, in order to make
it reach sensible results, it was defeasible by showing that the statement
fit within a firmly rooted hearsay exception or that it was supported by
particularized guarantees of reliability despite the fact that the Clause
indicates nowhere that it is subjected to exceptions or to reliability
screening. The result was a disaster, a manipulable, amorphous blob that
obscured a rather simple and glorious central principle of Anglo-American
law: If a witness testifies against an accused, she must do so face to face.
University of Michigan Law School
At 09:54 PM 3/8/2004, Earl Maltz wrote:
>I would in fact go further, and contend that the entire concept of state
>interests, on which balancing depends, is a fiction invented by judges
>and law professors. A government is not a person; it can have rules and
>objectives, but how can it have an interest?
>At 06:27 PM 3/8/2004 -0500, you wrote:
>>I was very struck by this passage in today's Crawford v. Washington
>>decision, in which Justice Scalia, writing for seven Justices, states,
>>"By replacing categorical constitutional guarantees with open-ended
>>balancing tests, we do violence to their design. Vague standards are
>>manipulable, and, while that might be a small concern in run-of-the-mill
>>assault prosecutions like this one, the Framers had an eye toward
>>politically charged cases like Raleigh's--great state trials where the
>>impartiality of even those at the highest levels of the judiciary
>>might not be so clear."
>>If taken seriously, this anti-balancing rule would seem to be one
>>with far-reaching effects reaching well beyond the Confrontation Clause.
>>The decision itself seems fairly remarkable, and one with potential
>>implications for upcoming terrorism-related cases, especially those in
>>which the government relies on "Mobbs" declarations...
>>Am I reading too much into this?
>>http://www.icannwatch.org Personal Blog: http://www.discourse.net
>>A. Michael Froomkin | Professor of Law | froomkin at law.tm
>>U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>>+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
>> -->It's warm here.<--
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