Let Him Speak It

by jkatejohnston

Goodbye, Scalia, you lucky happy man: lawyer who loved law, show-off who never ceased to be entertaining, child of immigrants, true-born Englishman.

What a good life. He was doing probably the only thing that could have made him happy. Not a bad death, either, going off in his sleep like that while still at the top of his powers. And what powers. (I’m talking about powers of mind, not powers of office, though he seemed to relish both.)

Of course there’s a lot to overlook, but I’m prepared to do that. Even Scalia’s fierce dissenting opinions in the gay rights cases never hurt my feelings. He always seemed to be enjoying himself. And he was honest. He never engaged in that filthy, “I don’t have anything against gay people, but we must think of the children …” He said, the Constitution doesn’t stop the majority of the voters from making laws because they have something against gay people. Ill-will was out of the closet in Scalia’s discussion of the subject. I don’t know if he had anything against gay people. His opinion wasn’t relevant, and he never included it.

Anyway, as a memorial, I re-read Crawford v. Washingon. It’s about the right of the Accused to confront and cross-examine the witnesses against him. It applies to criminal defendants only, and it makes it harder to convict people, so of course trial court judges didn’t like it, and bit by bit it got so watered down that it practically didn’t exist, except in the plain language of the Constitution (that inconvenient document).

Scalia brought it back. He said that the DA has to call the witness, no matter how reliable the judge thinks the witness’s out-of-court statements are. In the opinion, he quoted Sir Walter Raleigh at his trial, asking that his accuser, Lord Cobham, be brought to the courtroom:

“The Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face.”

It’s too long to quote here, but one of the great satisfactions of the opinion is how Scalia exposes the absurd dishonesty of judges figuring out which out-of-court statements are reliable enough to be admitted as evidence. He shows, by a relentless series of wonderfully silly examples, how judges just admit whatever out-of-court statements they want, depending on which side they want to win. A judge can always find some “indicia of reliability” if she tries hard enough.

Here’s some of the opinion:

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. … The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.

I said he was a true-born Englishman, and I’d better explain that. In the opinion he quotes Blackstone and  Hale and the old reports of Sir Walter Raleigh’s case. He describes and dismisses the legal practices of European countries (“wholly foreign”) which allow government officials to decide cases based on evidence that they gather themselves without adversarial testing and cross-examination. He believed that the Constitution means exactly what it did when it was adopted, so he was concerned with the state of our law at that time, and of course our law at that time was English law. Still is. The Brits thought of it, we live it, and it’s great.

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