A mortally wounded man’s identification of his assailant may be repeated by police officers in court, the Supreme Court ruled on Monday. The 6-to-2 decision was a significant retreat from the court’s recent embrace of the Sixth Amendment’s Confrontation Clause, which guarantees criminal defendants the right to confront witnesses against them.
Justice Antonin Scalia had been the leading proponent of a robust interpretation of the Confrontation Clause, and Monday’s decision drew a slashing dissent from him. He called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution…”
Justice Sotomayor, responding to criticism from Justice Scalia, acknowledged that determining whether the primary purpose of a crime victim’s statement was to provide information about past events or to aid in addressing a current emergency requires “a highly context-dependent inquiry…”
Justice Scalia’s dissent was comprehensively critical of the majority’s approach. He said it represented a significant shift away from the court’s 2004 ruling in Crawford v. Washington, which had breathed new life into the Confrontation Clause…
Justice Scalia added that the majority had smuggled back into the law a factor that the Crawford decision had rejected — whether the out-of-court statements were “reliable.”
“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” Justice Scalia wrote for the majority in Crawford. “This is not what the Sixth Amendment prescribes.”
An essentially Republican court renders an essentially conservative opinion. One that reeks of frontier justice and the laws of Judge Lynch.
With no right to confront and question a witness defendants lose a basic constitutional right.