The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation....
Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation — short on the facts, and short on the law.
February 28, 2011
The Supreme Court rejects an assertion of a right under the Confrontation Clause — and the 2 dissenters are Ginsburg... and Scalia.
This was a case about the "excited utterances" exception to the hearsay rule of evidence. Richard Bryant, convicted of second degree murder, was identified in a statement made to the police. Justice Scalia writes: