When I arrived to my office having finished two lectures -- in which I spent a fair amount of time discussing the confrontation clause of the Sixth Amendment -- I did not expect to find out that the Supreme Court had issued a new ruling. But today in Michigan v. Bryant, the Court carved out a significant exception to the right to confront one's accuser in court, provoking a fierce dissent from Antonin Scalia.
A couple of the landmark confrontation clause cases are very tough ones, pitting constitutional liberties against potential psychological damage to vulnerable victims. In Coy v. Iowa, the Court held that a trial that partially screened two alleged 13-year-old victims of sexual assault from the accused violated the Sixth Amendment. In Maryland v. Craig, the Court (over a strange-bedfellows dissent written by Scalia and joined by the iconic liberal justices Thurgood Marshall, William Brennan, and John Paul Stevens) held that a trial that permitted a 6-year-old alleged victim of child abuse to testify by closed circuit television did not violate the Sixth Amendment. While these accusers are vulnerable victims, I'm generally inclined to share the view of the four Craig dissenters.
Today's case concerned the question of whether hearsay elicited from a dying victim could be admitted, even though it had been elicited by police officers who were trying to investigate the crime and would not be subject to cross-examination. (For further explanation, see here.) A 6-2 Court, speaking through Justice Sonia Sotomayor, held that the evidence was admissible because the statements were a response to an emergency situation and to aid police rather than meant as "testimony." Justice Scalia's solo dissent (Ginsburg dissented separately) critiques the opinion with characteristic equanimity:
Today's tale...is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however -- or perhaps as an intended second goal -- today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.
Whatever one's opinion of Scalia's tone, I have to agree with him on the merits here. It's always tempting to put a large thumb on the scale on the side of victims when violent crime is involved, but neither the majority opinion nor Thomas' concurrence mount arguments that I find convincing. Five successive officers tried to get information from a victim who was not in immediate danger. The idea that they were not trying to elicit testimony is highly implausible.
In terms of the bigger picture, this provides yet more evidence that if you care about civil liberties, you'll take Scalia over Alito without hesitation. Since Ginsburg was the only liberal in dissent, one also has to wonder again if Justice Steven's departure will leave a substantial void. Sotomayor's record has been encouraging so far, so I hope this is a "hard cases make bad law" exception.