Tuesday, February 16, 2016

Confronting Nino

In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him - Amendment VI, United States Constitution
The death of Associate Justice of the Supreme Court, Antonin Scalia is national news. His influence, however, extended tangibly to my small corner of the world. This is because, almost single-handedly, Justice Scalia changed the practice of law in the criminal trial trenches. Nino Scalia may have been the bane of liberals, but his legal philosophy did not so easily fit in a box. Witness his opinion that changed the landscape of criminal trials: Crawford v. Washington.

Before Crawford, the Confrontation clause was a relic. It was measured by a standard similar to hearsay, an evidentiary rule in which the exceptions (I mean, what exactly IS a Present Sense Impression anyway?) have eaten up the rule of exclusion. BC (Before Crawford) the legal rule was if the out of court statement sought to be admitted into evidence bore sufficient indica of reliability constitutional requirements of confrontation were not offended.

This elastic standard meant, in practice, just about any third party statement made by an unavailable witness against a criminal defendant was going to heard by a jury.

Then came Crawford. Justice Scalia's opinion raised the Confrontation clause, like Lazarus, from the dead. The opinion declared that confrontation required more than a hearsay exception: If the statement sought to be admitted against the accused was "testimonial" the fact finder could not hear it without the opportunity for the accused citizen to confront the absent witness

Aye Gawd, the man reached back and used Sir Walter Raleigh as the beginning point of his constitutional argument.

Much litigation since his 2004 majority opinion has centered on what is, and is not, testimonial under Crawford, but that is of no moment. Justice Scalia's rhetoric and bombastic dissents may be the thing for which he is remembered, but those who speak ill of his legacy ought to confront their own bias and give the man his due.

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