Antonin Scalia

Why Is Scalia So Eager to Let a Murderer Off on a Technicality?


Monday's Supreme Court decision involving a defendant's Sixth Amendment right to confront witnesses against him provides another piece of evidence contradicting the popular caricature of Justice Antonin Scalia as a law-and-order conservative who reflexively sides with the government in criminal procedure cases. The issue was whether a dying victim's identification of the man who shot him could be repeated in court by police. It seems this testimony should be covered by the "dying declaration" exception to the ban on hearsay evidence, as Justice Ruth Bader Ginsburg suggested in her dissent. But for some reason, the prosecution did not make the argument, instead claiming that the victim's statement should not be considered "testimonial"—a rationale accepted by six justices. (Elena Kagan did not participate in the case because she worked on it as solicitor general.) In his own "slashing dissent" (as New York Times legal writer Adam Liptak describes it), Scalia mocked the majority's conclusion:

Today's tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—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….

For all I know, Bryant [the defendant] has received his just deserts. 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 us all.

This does not sound like a man who is hostile to the procedural safeguards (a.k.a. "technicalities") that irk authoritarian conservatives. The point is not the Scalia is necessarily right in this case, or that he is a reliable defender of civil liberties. But in this area, as in Hamdi v. Rumsfeld and sentencing cases involving the Sixth Amendment right to trial by jury, he has not been afraid to stake out bold positions based on what he believes the Constitution requires, reaching results that are friendlier to defendants than the conclusions of  his left-leaning colleagues. Scalia has a mixed Fourth Amendment record, but here too he has sometimes proven himself more skeptical of the government's position than his allegedly liberal colleagues.

In 2008 I argued that "Scalia's not half bad," which is "more than you can say for most justices."

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  1. Instead of clarifying the law, the Court makes itself the obfuscator of last resort….

    The Obamacare ruling is gonna be a doozy.

  2. The Confonrtation Clause is not a technicality. It’s the heart of how we do fact-finding in our judicial system.

    Do you want your fate to rest on the claim of some cop — whose professional status depends on closing cases — about something someone allegedly said about you just before that person could never be questioned again?

    1. New professionalism?

    2. At the same time, the murderer has pre-empted his “confrontation” by inflicting the fatal wounds on the victim. It seems unfair that you can kill a man and then complain that you can’t also cross-examine him.

      1. Exactly my point: You assume guilt based on self-interested hearsay. The Sixth Amendment requires confrontation because such hearsay is unreliable and may not justify taking someone’s life.

      2. You are assuming the murderer and suspect are one and the same. If that was known, you wouldn’t need the trial.

      3. Your statement is the basis for the well established “dying declaration” exception. As the article notes, the State failed to argue this as the exception that allowed the victim’s out of court statement into evidence.
        This is a case where the agents of the State failed to do their jobs properly during their prosecution of the case. Generally, this is exactly why we have the procedural protections of the constitution, and eroding those protections is dangerous for all of us.

  3. I’m a civil lawyer, not a criminal lawyer, but I think the 6th Amendment Confrontation Clause is an additional burden beyond just the hearsay exception for dying declaration. I really don’t remember the interplay of the hearsay exceptions and the Confrontation Clause from law school, but I do remember it being a very complicated analysis.

  4. Scalia generally sides with the rights of the accused in: 1) Confrontation Clause cases; 2) Jury Trial Clause cases; and 3) habeas corpus rights for U.S. citizens the context of the “War on Terrorism”.

    However in most (not all) other cases involving the rights of the accused, whether it be Miranda rights; exclusionary rules; due process; limits on the death penalty; proportionality in sentencing; Fourth Amendment rights generally, he is a predictable statist reactionary.

    1. 1) Confrontation Clause cases; 2) Jury Trial Clause cases; and 3) habeas corpus rights for U.S. citizens the context of the “War on Terrorism”.

      Unsurprisingly, what you’re saying is that he’s good on the rights of the accused in things that seem to be spelled out in black and white in the text of the Constitution, and not so good on rules that the Court has invented to lack such obvious textual bases, but seem to be good ideas.

      1. Of course. Take the Fourth Amendment exclusionary rule. If the Constitution protects us from illegal searches and seizures, the but there is no remedy for a violation, what the fuck is the Fourth Amendment useful for? Same for Miranda rights.

        Futhermore, Scalia is not an originalist when it comes to criminal procedure. Rather he is a “fictionalist”.

        I strongly recommend the work of Thomas Y. Davies, a renowned legal historian and scholar, who demonstrates that even when it comes to the Confrontation Clause, Scalia’s positions are nothing but a joke. His work documents the total inadequacy of “original meaning” when it comes to the rights of the accused.

        Thomas Y. Davies Publications…..ions.shtml

      2. Yes but keep in mind those rules that the court invented are generally in the service of restricting the power of government. Much like how ‘incorporation’, which is a rule invented by the court, holds that it’s not just congress that can’t restrict free speech. I think most libertarians rightly embrace an ‘activist court’ when such a court restricts the power of the state. It is a very different thing when a court invents a rule to give authority or power to the government, versus when a court invents a rule to subtract such.

  5. What’s with all the posts defending conservatives and Republicans lately? You guys should spend more time talking about what you believe and less sticking your tongue out at liberals.

    1. Dear spoof Tony,

      You’ll notice the columns defending Republicans only do so when they align with what we believe in. See: Mitch Daniels. Now please come up with better material. thxkbye

  6. the Court makes itself the obfuscator of last resort

  7. Anyone looking for a discussion of this case and other Confrontation Clause issues, there’s a very good blog focusing on just the Confrontation Clause.

  8. In 2008 I argued that “Scalia’s not half bad,” which is “more than you can say for most justices.”

    I agree with that summation.

    1. I would put it at “Scalia’s barely not three quarters bad…” and keep the rest the same.

  9. Exceptions to the hearsay rule allow evidence to be presented that would normally be excluded as hearsay. We’re dealing with Federal Rules of Evidence matters here.

    Testimonial evidence presented without a chance for cross-examination violates the Confrontation Clause of the Sixth Amendment; i.e., it’s a violation of a civil right to admit it.

    These are two different issues here. The “dying declaration” exception does not allow the prosecutor to violate the U.S. Constitution. It simply says that, ceteris paribus, you can admit a dying person’s declaration into evidence when it would otherwise be excluded as hearsay.

    Let me try to present an analogy. Say the police, without a warrant or any urgent need that excuses the lack of a warrant, break into a private residence to search for evidence. In the course of that search, they discover an elderly man in his sickbed. As they stand there listening to him, he makes a statement they want to use in evidence, and they he dies. Dying declaration? Does it matter? The evidence is the fruit of the poisoned tree – the product of a search in violation of the Fourth Amendment.

    The “dying declaration” isn’t really a separate means to get evidence in, it’s an exception to an exclusion on a condition to get evidence in. At the highest level, you have constitutional restrictions on evidence – certain things cannot be admitted into evidence because that admission would be unconstitutional. Below that, you have the Federal Rules of Evidence, and its rule that all evidence must be relevant. That further restricts what can be admitted. The hearsay rule even further restricts admission – even evidence that can constitutionally be admitted AND evidence that is relevant will be excluded if it violates the hearsay rule. The dying declaration exception simply says that evidence which meets the first two conditions but not the third (i.e., 1. constitutionally permitted; 2. relevant; 3. not hearsay) is kosher as long as it meets some further conditions.

    1. Thanks, this was helpful. I was reading the facts of this case and thinking, “Um, aren’t dying declarations a hearsay exception?” And of course they are, but that doesn’t allow Constitutional violations.

      Still, I’m hard-pressed to think of many situations where a dying declaration would NOT violate the Confrontation Clause. One is when the defendant is introducing the statement (obviously, because the prosecution doesn’t have Confrontation rights), but what else? Any time the prosecution introduces a dying declaration that tends to prove the defendant’s guilt, shouldn’t it be excluded? Just what the hell IS a dying declaration that doesn’t violate the Confrontation Clause? Examples?

      1. Looks like the pertinent question is whether the declaration was testimonial. So what was its purpose? Was it a response to an emergency or was it answering a question from the cops? From the Confrontation Clause blog mentioned above:

        “The accused now has the burden of establishing that the primary purpose of the conversation in which the witness’s statements were made was to “creat[e] an out-of-court substitute for trial testimony.” Determining primary purpose is, of course, a very tricky matter, as Justice Thomas emphasized in his dissent in Davis and repeats here. Indeed, the concept is very difficult to nail down; if a person makes a statement for the purpose of creating trial testimony and also for another purpose, how do we determine which one is the primary purpose?”

        What a clusterfuck.

  10. For all I know, Bryant [the defendant] has received his just deserts [sic].

    Sullum’s mistake, or Scalia’s? Or maybe no mistake at all. Perhaps the man ended up dying of severe dehydration.

    1. comes from the word “deserve,” nimrod. Not dessert. He didn’t get “just cakes and pies.”

      1. They refused to let him confront his accuser and he couldn’t even get an apple pie??

  11. I guess the “new professionalism” meme really sunk his reputation among civil libertarians despite his better-than-others record.

  12. Still, I’m hard-pressed to think of many situations where a dying declaration would NOT violate the Confrontation Clause.

    There aren’t ANY situations where a dying declaration, solely existing as a statement from the police or some other person about what was allegedly said, would not violate the Confrontation Clause, which reads:

    “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

    This is unambiguous and not modified.

    Now, if the dying declaration was recorded, either by a videotape or an audio recording, then it would be physical evidence which the jury should be entitled to listen to and view and judge whether the person making that statement was lying or telling the truth.

    But, a statement from the cops alleging something was said, where you can’t hear the tone of voice or facial expressions or body language, or for that matter establish that the cop was telling the truth — no matter what some SCOTUS judges say, that should be inadmissable hearsay evidence based on the constitutional wording.

    1. Hearsay rule != Confrontation Clause

      Please see above and Google “testimonial statement.”

      Happy to help.

  13. In 2008 I argued that “Scalia’s not half bad,” which is “more than you can say for most justices.”

    “Not half bad” but still no Clearance Thomas, who really is not half bad (but still far from perfect).

  14. Oh, this is nothing–he wanted to let child molesters go free back in the 90s. You should read his Confrontation Clause dissent (joined by Brennan, Marshall and Stevens!) in Maryland v. Craig–I LOVE his smart-assed conclusion.…..ent_Scalia

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