Supreme Court

Scalia Attacks Alito for Undermining 6th Amendment Right of Criminal Defendants to Confront Witnesses

SCOTUS grapples with the Confrontation Clause in Ohio v. Clark.

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Credit: C-SPAN

In his 2004 majority opinion in the case of Crawford v. Washington, Justice Antonin Scalia held that law enforcement officials violated the Constitution when they introduced into evidence a testimonial statement made to the police by a wife describing her husband's involvement in an alleged murder. Because the husband "had no opportunity to cross-examine her," Scalia held, his rights under the Confrontation Clause of the Sixth Amendment had been violated. According to the Confrontation Clause, "In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."

Crawford was a watershed case in modern Sixth Amendment jurisprudence. Among other things, it overruled the Supreme Court's 1980 decision in Ohio v. Roberts, in which the Court had allowed prosecutors to introduce into evidence a "reliable" statement made by a witness who was unavailable for cross-examination during a forgery trial. In other words, Scalia's decision in Crawford repealed a precedent that gave law enforcement officials a leg up and replaced it with a precedent that gives some additional protection to criminal defendants.

Earlier today, the Supreme Court decided another Confrontation Clause case. Writing for the majority this morning in Ohio v. Clark, Justice Samuel Alito held that the Confrontation Clause was not triggered when prosecutors introduced into evidence a statement made by a 3-year-old boy to his preschool teachers about crimes committed by the boyfriend of the boy's mother. "In Crawford," Alito observed, "we defined 'testimony' as 'a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Because neither the young boy nor his teachers "had the primary purpose of assisting in Clark's prosecution," those statements did not rise to the level of testimony "and therefore were admissible at trial" even though the child was not available for cross-examination.

That judgment is consistent with Crawford. But Alito went further, describing Crawford as merely "a different approach" from what the Court previously held in Ohio v. Roberts (rather than a repudiation of the 1980 case), and in fact Alito even suggested that Ohio v. Roberts might still be relevant in future Confrontation Clause disputes.

That suggestion proved to be too much for Justice Scalia to swallow. "I write separately," Scalia fumed, "to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington." Justice Ruth Bader Ginsburg, who frequently sides with Scalia in criminal justice cases, signed on to today's anti-Alito protest.

In other words, prepare for war between Scalia and Alito when the next Confrontation Clause case arrives at the Supreme Court.

The opinion in Ohio v. Clark is available here.

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  1. Because neither the young boy nor his teachers “had the primary purpose of assisting in Clark’s prosecution,” those statements did not rise to the level of testimony “and therefore were admissible at trial” even though the child was not available for cross-examination.

    What kind of bullshit logic is this? If it assists the prosecution in any way it should be considered testimony subject to due process rules.

    1. It it didn’t rise to the level of testimony, then why the hell is it being included at trial?

      1. Exactly what I was thinking.

      2. By now I think we all know why.

    2. Good grief: I thought second-hand testimony was automatically hearsay?

      1. This falls under an Ohio hearsay exception (page 3 of the opinion).

      2. That is not what hearsay is.

    3. They made this “primary purpose” exception most likely because the 3-year old would not remember anything by the time the trial rolls around and the teachers would not have said anything but for the 3 year old telling them. Not saying it’s right or constitutional, but that’s most likely the (unspoken) reasoning behind it.

      Of course, this will now mean ALL statements sourced from anybody with a ~10 year old or younger intellectual capability can be admitted since it can’t be argued that their “primary purpose” was to assist a prosecution. As excellent public servants committed to honesty and integrity, prosecutors will never abuse this loophole… (in case not obvious, that was sarcasm).

      1. The primary purpose test is, itself, unconstitutional as the language of the 6th just does not permit it.

        1. I totally agree. But whoever said SCOTUS’s reasoning is ever constitutional?

          1. I would argue that it’s debatable whether ANYONE’S primary purpose is to assist a prosecution, regardless of their age.

  2. Great. Now tell him about the Fourth.

        1. WTF, Reason? How do I make a greater than sign?

            1. It is impossible to insert a greater-than character into an H&R post (except for the purpose of starting one of the permitted HTML tags). It should be possible using the > HTML character entity, but their comment parser has some odd quirks and filters it out for some unjustifiable reason.

              1. .gt.

                Edit: Since it might be unclear, that’s a Fortran reference.

                Last edited by ant1sthenes, 18 June 2015 – 10:03 PM

                1. Well some of us can use the ? symbol. I assume it’s a sign.

  3. Misleading headline. I expected actual fisticuffs.

  4. There is no textual support in the 6th amendment to support today’s holding.

    Of course, the faux legal intelligentsia will go tisk, tisk at such black and white asseverations, superciliously thinking themselves to be of superior intellectual timber. Trouble is, those who tend to view life and almost all of its propositions as “more complicated” or “more nuanced” or “ambiguous” are themselves, shallow, superficial thinkers.

  5. I would have gone more with:

    If a statement by a witness does not rise to the level of testimony (“‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”), then it is not admissible at trial.

    What business does any statement that is not “testimony” have in a criminal trial, anyway?

    Of course, this is utter horseshit:

    .” Because neither the young boy nor his teachers “had the primary purpose of assisting in Clark’s prosecution,” those statements did not rise to the level of testimony “and therefore were admissible at trial” even though the child was not available for cross-examination.

    The definition of testimony doesn’t require that it have the primary purpose, etc. It requires that it be for the purpose of establishing a fact. I know mobile goal posts when I see them.

    Crap decision, based on crap reasoning.

    1. Yet, some of our conservative friends here think that a GOP president would yield better supreme court nominees who, if confirmed, would better protect the BORs than donkey nominated and confirmed justices.

      1. The only reason for my preference that an R put justices on the court is that they are better on the second amendment. Without it all of the other rights would evaporate within weeks. Second amendment rights are what keep the constitution in effect, not the Nazgul.

        1. And the First Amendment, as well. The right has an old bugaboo about flag burning, and they’re not always so great on freedom of assembly or petition, but the left has taken the lead in making war against freedom of speech, freedom of the press, and freedom of religion, and has proven to be little better than Republicans on freedom of assembly and petition.

          1. The Stolen Valor Act might also count as an anti-free speech example of the right, but support for the law was pretty bipartisan.

  6. Well, does the sixth amendment even matter when the government has granted itself the right to lie about the source of evidence already?

    These mental gymnastics to justify this just amount to beating a dead horse.

  7. Like I’ve said before, the truly interesting legal debates nowadays are among conservatives, not between conservatives and liberals; the latter’s ideas are predictable and played out (though unfortunately still influential).

    1. Ginsburg joined Scalia in his concurrence. So I’m not really sure what your point is.

      1. Sotomayor joined the majority, though. That is a little surprising/disappointing.

        1. Was she just confused and flipped a coin?

  8. I can understand creating a hearsay exception for a 3 year old over a statement like this but allowing the statement to be introduced without cross-examining the teachers who heard and recorded it makes absolutely no sense. It’s patently unfair to the defendant; he has a right to know under what circumstances the statement was made, if the child seemed to be under duress when speaking to the teachers, examine inconsistencies between teachers’ statements, etc.

    The “primary purpose” exception is bullcrap. What does that even mean? Do “reliable” statements made to any non-law enforcement agency not qualify as testimony now?

    1. I can understand creating a hearsay exception for a 3 year old over a statement like this

      I’m struggling with whether any statement by a 3 year old should be admissible in a criminal trial, period.

      1. Forgive my arrogance, but it is no struggle for me. Its out.

      2. Exactly. Three-year-olds have only the most tenuous of grasp of the difference between reality and fantasy (if any). No one who firmly believes in the literal existence of Santa Claus, the Tooth Fairy, and the Easter Bunny has any business offering “testimony”.

        1. No one who firmly believes in the literal existence of Santa Claus, the Tooth Fairy, and the Easter Bunny has any business offering “testimony”.

          Many competent adults allowed to give testimony hold beliefs no less ridiculous.

          Consulting with a three year old over things like, say, motive is probably reaching. For establishing certain kinds of basic facts, they’re not quite as stupid as you seem to think. I’d say very probably no worse than any other type of eyewitness testimony.

  9. So the take away from this is that each of the justices is awful on the Constitution in his or her own way.

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