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:
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.

23 comments:

Sofa King said...

Well, you don't see that every day!

David said...

Rachel Maddow hears of this and says: "Head Must Not Explode."

MikeR said...

Could someone explain what this is about?

Fred4Pres said...

The dissent are right on this. Such statements can never be verified, never challenged, and can result in real miscarriages of justice.

Bob_R said...

How many times have they been paired as sole dissenters?

David said...

Basically, the decision means the defendant is out of luck. It's nearly insurmountable evidence with, of course, no cross examination.

PatHMV said...

Mike R... In short, case is like this:

Detroit cops respond to report of a gunshot victim at a gas station. 5 separate cops question the victim, seeking more and more detailed descriptions of the victim. Victim IDs the defendant in this case during that questioning, but later dies. Trial court admits testimony from the cops about the ID made by the victim.

The majority ruled that this was ok, that it did not deny the defendant his constitutional right to confront the witness against him, the dead victim, because the statements were made in response to police questioning which was intended by the police primarily to help resolve the current emergency (a shooter on the loose), rather than to gather evidence about past events for use in the investigation or future trial.

Justice Scalia and Justice Ginsburg disagreed, saying first that it is not the intent of the police asking questions that matters, but the intent or purpose of the victim making the statement, and looked at in that light, the victim was clearly making the statement to implicate the defendant for the past event, rather than to resolve HIS immediate emergency, the profound need for medical care. Justice Scalia also eviscerates the Court for buying the cops' testimony about their purpose in asking the questions. They were not in fact taking any actions that one would expect them to take if they were truly fearful of a shooter on the loose who might start shooting them or others at any second, and they frankly showed little interest in the victim's actual medical condition at the time.

TWM said...

Is this statement the only thing that was relied upon to put the shooter away?

Carol_Herman said...

Off the bench, Ginsberg and Scalia are FRIENDS! Ideas have breath to them. They don't belong to just one side. And, in this case the DISSENT is correct!

Some day we will see the Supreme Court again getting GIANTS. I can name a few. HUGO BLACK, BRENNAN, (even Frankfuter). There's a wonderful book out there, SCORPIONS, by Noah Feldman. That describes the GIANT PICKS made by FDR! He wasn't afraid of FIRST CLASS BRAINS.

If you put in presidents who are basically less than "A" students, you get the fact that they will pick crap over quality.

But the reason the book's called SCORPIONS comes from a quote made in 1952, when it was pointed out that the 9 members of the court were like "scorpions in a bottle."

And? Well, when fashions change, it's those dissents that can move forward.

Saint Croix said...

Brennan wasn't a giant, he was a disaster.

Martha said...

"Is this statement the only thing that was relied upon to put the shooter away?"


I hope NOT!
Sort of explains why Scalia and ACLU Ginsburg dissented.

Saint Croix said...

Scalia is an amazing writer, I think. All the truly great jurists have that in common. They write exceedingly well and their opinions are a joy to read.

Hugo Black's opinions have that quality, too. They are completely different writers, of course. Scalia is sardonic and often funny, and uses his extensive vocabulary to impress. Black kept his language simple and basic. He wanted to write an opinion that his mechanic would read.

Black's opinions still give me goosebumps.

Saint Croix said...

People who should be on the Supreme Court and are not:

Akhil Amar
Alex Kozinski

I know some other names but those are the two most glaring omissions.

S said...

This isn't as surprising as it might seem. Scalia has a broader view of defendants' rights than a lot of his detractors (and probably a lot of his fans) recognize.

Richard said...

Agreed. If you read Scalia's majority opinion in Crawford, his dissent here is no surprise. What is troubling is the fiction employed by Sotomayor to reach the holding, and, that Alito and Roberts would join the opinion.

It will be interesting to see if State Courts will follow the dissent or majority in interpreting State constitutional confrontation clauses.

traditionalguy said...

A conservative usually wants the legal protections of Jury trials conserved for future generations. Without that jury trial protection a King is able to snuff every enemy at will. Even with the right to a fair jury trial, the King's Prosecutor has 80% of the power to ruin and imprision the King's enemies, just not 100%.

Robert said...

I agree that Scalia is a terrific writer. Unfortunately, he is also overly sarcastic and downright nasty. His first paragraph is extremely over-the-top for a legal opinion; for a blog post it would be the cat's meow. (Only he is on the side of the "People" and what they ratified in 1788? Why of course.) The man seems to make no effort to win other justices over to his side, either in the opinion before him or in future cases. And for the record, his position is intuitively appealing.

Kirk Parker said...

Saint Croix,

JRB?

virgil xenophon said...

St Croix/

Totally agree about Kozinski, but not Amar--would prefer former US Assist Attny Gen Viet Dinh--the Harvard Grad Viet refugee. Or John Yoo (just to enrage the left as much as his qualifications--although I'm an advocate of those as well..)

amp21s said...

It is okay, Cobham made the utterance.

David said...

The man [Scalia] seems to make no effort to win other justices over to his side . . .

He is addressing the future, not the present. See, e.g., Plessy v. Ferguson,163 U.S. 537 (1896)(Harlan, J., dissenting)

DaveG said...

Is this statement the only thing that was relied upon to put the shooter away?

In the long term, that doesn't matter. The ruling has set precedent for future cases. That's the problem.

Justice may (or may not) have been served in the immediate case, but the door has now been opened for future injustices.

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