General Litigation

Supremes Disappoint With Latest Case on Confrontation

Yesterday the US Supreme Court  issued a ruling that severely weakened an important right contained in the Constitution.  The Sixth Amendment contains The Confrontation Clause: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”  While much of the Constitution is derived from English law this basic right was begun by the Romans at the height of their power.  In noting the right’s long history, the United States Supreme Court has previously cited the New Testament (Acts 25:16), which includes a statement by a Roman governor, discussing the proper treatment of his prisoner the future St. Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.” This critical right was strengthened in 2004 by the Supremes in a case called Crawford v. Washington. Before Crawford, a statement made by a witness out of court (lets say to a police officer: “John and me drove away in a red truck after we robbed the bank”)  could be testified to by the police officer if the statement appeared “reliable.” Having to argue lack of  “reliability” was difficult for defendants and the Court recognized this standard weakened the strong language of the Confrontation Clause.  Jurors and courts are very likely to routinely find that an officer’s testimony renders the statement “reliable” so that an accused could often lose the right to confront the witness who made the statement.  Writing for the court Judge Scalia stated:

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty .

Exactly, its the whole point of the Clause to prevent an accused from facing evidence that he cannot contest, reliable or otherwise. So the Court in Crawford said all that matters is whether the statement given is one which is just part of an emergency that is happening (Cop on the scene of a crime: Which way did he go? Witness: “He went that way and he was wearing a red shirt!”) or whether it was more in the manner of testimony  (Cop on the scene: So tell me what you saw. W: I saw a man running down Main Street Cop: Did you happen to see what he was wearing? W: Yes, he was wearing a red shirt). The first one can be told to a juror but the second can’t be because it was testimonial in nature.

Well now in Michigan v. Bryant the Supremes essentially reversed or at least severely wounded Crawford .   In Bryant a shooting victim told a police officer that he was shot by “Richard Bryant”  during a series of questions posed to the victim.  The witness died several hours later from the wounds he suffered in the shooting. Writing for the Court Judge Sotomayor leaned back on “reliability” and found that the even though the statement was produced by a standard Q and A and not just uttered in an emergency to a police officer, it was admissible against the defendant because it was still addressing an “ongoing” emergency since the shooter was still at large. But that opens the door to ALWAYS being able to use an out of court statement as long as it was made before the crime was solved.

But more importantly, we need some consistency from these people.  In 2004, they said it was the manner in which the information was given that made it “testimonial.” Now they are back saying it is the circumstances under which it was given.  Continually going against clear language in precedent undermines the  reliability and integrity of the Court. We can’t keep changing Constitutional jurisprudence just because we get some new Justices on the bench.

Most surprising is that the case was decided 6-2, (Justice Kagan recused herself since she worked on the US Attorney’s brief when she was Solicitor General) with Judge Scalia writing a scathing dissent which was joined by Judge Ginsburg.  So the courts most conservative and most liberal justices were on the same page! Scalia (who wrote the opinion in Crawford) let it fly as only he can:

[The majority’s account of the case] is so transparently false that professing to believe it demeans this institution.  Today’s opinion distorts our Confrontational Clause jurisprudence and leaves it in a shambles”

In the world of the Supreme Court that’s the equivalent of saying  “I slept with your Mom last night.” Its serious trash talk.  But I have to agree with Justice Scalia on this (OMG did I just say that?) The Court twisted and churned its reasoning to make it sound like it was fitting it into Crawford when in fact the Crawford case made the decision in this case “absurdly easy” as Scalia also stated.

Scalia also took great pains to remind everyone of the importance of this right to the innocent and the importance of playing by consistent rules even when it is clear that the defendant is guilty. Allowing police officers to come in and tell juries about what people said out of court without having the prosecutor call the actual witness to the stand is very dangerous.  He eloquently addresses this in his conclusion:

For all I know, Bryant has received his just desserts. But he surely has not received them pursuant to the procedures that our Constitution requires.  And what has been taken away from him has been taken away from all of us”

I couldn’t have it said it better myself Judge, thanks.

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