Home / General / The Court Again Confronts the Confrontation Clause

The Court Again Confronts the Confrontation Clause


I arrived to my office having finished two lectures that spent a fair amount of time discussing the confrontation clause of the 6th 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, 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 strange-bedfellows dissent written by Scalia and joined by the liberal icons Marshall, Brennan, and Stevens) held that a trial that permitted a six-year-old alleged victim of child abuse to testify by closed circuit television did not violate the 6th Amendment. These are very difficult cases, but 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 76-2 Court, speaking through Justice Sotomayor, held that the evidence was admissible because the statements were a response to an emergency situation rather than “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 when violent crime is involved, but neither the majority opinion nor Thomas’s concurrence mount arguments that I find convincing.   The idea that five successive officers tried to get information from a victim who was not in immediate further danger but 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.

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  • DrDick

    This may be the first and only time I have ever agreed with Scalia about anything.

    • matth

      When it comes to criminal procedure, I bet you’d be surprised how often Scalia’s provided the fifth vote for results you like. (Two other examples that jump to mind are requiring warrants for technology-enhanced searches and the Apprendi/Booker line of sentencing decisions). A lot of politically-salient criminal justice issues don’t line up very well with the sorts of arguments that originalists are receptive to: you wouldn’t want to count on Scalia’s vote for your Miranda argument. But the framers really cared about criminal procedure: think about how much of the Bill of Rights is devoted to weirdly detailed rules about police and trial procedure. This can make originalism a surprisingly potent source of (some kinds of) substantive protections for criminal defendants.

      • wsn

        And it’s not a partial 5th vote the way Kennedy often is. Scalia on these issues is less likely to compromise than a lot of the liberals on the Court, which can be seen in the case in the OP.

        • Scott Lemieux

          And he’ll be a swing vote, too — it’s not like Roberts where he might go along with a liberal opinion that already has the votes but not otherwise. See also his dissent in Von Raab. Scary as it is, Scalia looks like William Douglas compared to Alito.

    • richard

      I assumed you agreed with him on the flag burning case and pretty sure you agree with him on a number of other criminal procedure cases. He’s pretty consistent in taking a hard position on the applicability of criminal procedure protections in criminal prosecutions.

  • chris

    I take a very suspicious view of undermining *any* constitutional protection accorded to defendants just because the present defendant seems like a very very bad person who is accused of doing something very very bad (and therefore we should tolerate anything in order to convict him).

    That’s especially true for sex offense trials, which have a strong tendency to resemble a witch hunt even before you start throwing out rules of evidence.

    • Scott Lemieux


  • hv

    Perhaps both appearances of “trail” should be “trial.”

    • Scott Lemieux

      Thanks — I miss that one all the time.

  • richard

    This is unlikely to be a big deal case. The testimony in this case was admitted under the excited utterance exception. The prosecution did not present evidence that it was a dying declaration although it probably could have made that showing. (The victim had been shot and died from the wounds). Past Supreme Court decisions indicate that the dying declaration exception to the confrontation clause requirement was one that was recognized by the Founders and thus does not offend the confrontation clause (even Scalia seems likely to hold to that view). Most utterances of the sort in this case are likely to be admitted under the dying declaration rubric; relatively few will come solely under the excited utterance exception and thus involve the somewhat strained “non-testimonial” analysis of the majority here.

    • Anonymous

      Those are hearsay exceptions, not confrontation clause. You don’t get to sneak in testimony just because there is a hearsay exception. There are two hurdles to overcome.

      Trial judges make this mistake all the damn time.

      • Anonymous

        Of course, now you can sneak testimony in via hearsay exception. That’s today’s holding. In an “emergency.”

      • richard

        I understand the distinction. I’m a trial lawyer and used to do criminal defense. The clear implication of the prior confrontation clause cases is that the deathbed exception to the hearsay rule does NOT violate the confrontation clause. The ruling today indicates that other hearsay exceptions may not violate the confrontation clause. But the scenario presented in this case, statements made by someone who’s shot and who dies from his wounds, is almost assuredly going to be allowed in under the deathbed exception so the ruling today wont have that much of an effect

        • Anonymous

          I went back and looked at Crawford and see you are correct on the dying declaration. In my defense, it’s never come up for me in a case.

  • Warren Terra

    Two places in the second paragraph, trail s/b .

    Other than that nitpickery, which I do only because the first instance confused me for a time, excellent post. Given the many, many cases of cops bending and inventing testimony to arrange the conviction of people they’re concined must be guilty, the idea that the only witnesses to alleged deathbed testimony should not be cross-examined just seems insupportable

    • Warren Terra

      Er, trail s/b trial. Not sure how that happened.

    • richard

      The cops can be cross-examined in any deathbed testimony case (in fact, the only way the testimony can be admitted is by the cops testifying what the dead guy said and then being subject to cross-examination). the problem here is that the victim is dead and therefore not subject to cross-examination. But as I pointed out above, this is not a deathbed testimony case becasue the prosecution did not provide evidence that the declarant thought he was dying when he made the statement. If such evidence was presented, the Court, including Scalia, would have held that deathbed testimony does not violate the confrontation clause (because such testimony was contemplated by the founders as not violating the Confrontation Clause). Rather this testimony was admitted as an excited utterance and the question was whether an excited utterance given by a witness unavailable at trial (in this case, because he’s dead) violates the Confrontation Clause.

      • Warren Terra

        I am very much not a lawyer here, but I don’t understand the logic of your response. The cops say that a witness made a critically important statement to them. That witness is dead, and so can’t be cross-examined, though obviously their motives and veracity can still be attacked. But what about the cops themselves? How do we know they didn’t make the whole statement up, sticking it in the mouth of a dying man who could hardly contradict it later in order to ensure a conviction? Seems to me that a defense attorney must get to ask these questions, and the only way to do so is by access to the officers in court.

        From watching a lot of bad courtroom dramas on TV, it seems to me that the main issue you’re raising is about hearsay, which (according to my Teevee watching) is not admissible except in extraordinary circumstances. But surely, even when those circumstances make the hearsay evidence admissible, the people who collected the hearsay evidence must be required to swear that they did indeed hear it, and to defend that statement?

        • AAB

          The cops did testify here. That isn’t the issue. The issue is whether admitting the evidence without allowing the defendant to cross-examine the (dead) witness violated the Confrontation Clause. That issue turns on recent Supreme Court decisions holding that the Confrontation Clause is implicated any time a witness gives “testimonial” statements. The majority — wrongly, I think — concluded that the statements here weren’t testimonial because they were given in response to an ongoing emergency. Scalia’s point is that there was no emergency here, and that the cops themselves admitted they were seeking information to aid in the investigation.

        • Jim

          There is a specific hearsay exception in Federal Rule of Evidence 804, providing that a “dying declaration” can be offered in court as an exception to the prohibition on hearsay. There are several requirements – the declarant has to believe that his or her death is actually imminent, so a guy saying “Defendant shot me” who thinks he’s gonna pull through won’t cut it; and it has to be about the circumstances leading to the apparently-deadly condition, so “Defendant robbed the bank” won’t cut it either.

          The notes to the Federal Rules specify that this exception did in fact arise in the context of criminal prosecutions: “The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide.” (Under Exception 2 in Subdivision (b)).

          This isn’t my area of practice, so I confess I’m a little confounded by why this is an issue and not just resolveable under the justifications for the Rules.

          • richard

            Because the hearsay rule and the confrontation clause are different. There’s no question that the statements here could be admitted in a civil case because they are an exception to the hearsay rule. But in a criminal case, the statements have to fall within an exception to the hearsay rule AND not violate the confrontation clause. Prior cases seemed to indicate that statements not subject to cross examination violate the confrontation clause unless routinely admitted in criminal caes when the Constitution was adopted (such as the deathbed exception)

        • richard

          The way we find out if the cops didn’t make the statement up out of whole cloth is to cross examine them and argue to the jury that the cops are lying. The defense attorney will ALWAYS have access to the officers in court and had access to the officers in this case.

          Its not the case that hearsay in only admissible in extraordinary circumstances. Hearsay is admissible if it meets certain exceptions to the hearsay rule. There are MANY such exceptions.

          The question here is whether a statement that is subject to one of the hearsay exceptions is still inadmissible under the confrontation clause (which only applies in criminal cases). Under Crawford, the implication was that all such statements where the declarant was not available to testify at trial were inadmissible unless the history of the Constitution indicated that the founders did not think such a practice violated the confrontation clause (the deathbed exception). The ruling today expands the list of statments that can be held not to violate the confrontation clause but, as I said above, since this statement could have been admitted under the deathbed exception, will not have that much impact in the day to day administration of the criminal justice situation.

          • dave

            Of course, much judicial procedure could be radically simplified if we could come up with a reliable way of figuring out if the witness on the stand is lying….

            But that way lies the cushions, and the comfy chairs, and other unexpected things…

      • David Nieporent

        But as I pointed out above, this is not a deathbed testimony case becasue the prosecution did not provide evidence that the declarant thought he was dying when he made the statement.

        In fact, there was evidence he didn’t think so, since he kept asking — while giving these statements — when the EMTs were arriving.

        • Scott Lemieux


  • Crawford sceptic


    This post presumes (or seems to me to presume) that Crawford‘s distinction between “testimonial” hearsay and non-testimonial hearsay is the correct way to view the Confrontation Clause.

    Before Crawford, under Ohio v. Roberts, wouldn’t the statements have been admitted as a “firmly rooted” hearsay exception (excited utterance)? If so, is it so terrible that a bunch of justices may have decided that the Crawford regime was leading to a silly result (keeping out previously acceptable evidence in a triumph of formalism, with the formalism itself based on a misreading of the trial of Walter Raleigh) and that those justices therefore massaged the definition of “testimonial”?

    Scalia seems to regularly accuse his colleagues of seeking to undermine Crawford, and my reaction is, “I hope they are.”

    I agree that overruling Crawford would be cleaner, but I don’t see a serious injustice in the admission of testimony that fits into a venerable hearsay exception. Such evidence was perfectly good under the Sixth Amendment for 200 years or so and only since Crawford has become suspicious.

    Or am I missing something?

    • AAB

      The biggest problem with Roberts is the “indicia of reliability” and “particularized guarantees of trustworthiness” language, which can act as a “this Defendant seems really awful” exception to the Confrontation Clause.

      I think we put far too many people in prison and are most comfortable creating exceptions where the Defendants seem the most morally reprehensible. I support Crawford because it acts as a barrier to that.

  • Joe

    The child witness cases involve means to not allow them to directly “confront” the people accuse. I think the strict rule was probably correct there.

    This is a harder case. The SC, Scalia agreeing, accepted that a person calling 911 is not the type of “testimony” at issue here. This includes if details are requested.

    Here, Scalia thinks there is no ongoing crime situation. But, the guy was recently shot. The shooter is not that far away. It is not as stupid as he makes it out to be that the police asked him details and the two situations are comparable. And, as Richard notes, the situation very well fit under an exception anyway, but for technical reasons was not an option here.

    Scalia and Ginsburg might have been right, but I don’t think it is a major loss for the 6A. Scalia’s hysterics, that led Ginsburg to agree with him (she even suggested the dying proclamation might no longer be a valid exception) but not join his dissent were tedious.

    • Joe

      Editing problems. Anyway, there the witnesses were around etc., no dead witness, and confrontation was a clearer matter.

  • Rarely Posts

    Three thoughts:

    1) If I’m remembering these cases correctly, Scalia’s historical analysis in the confrontation clause and Booker cases seems incorrect. It’s particularly problematic in Booker, where the analysis seems anachronistic, relying on historical practices that post-date the relevant amendments by many decades. It’s funny because I take a liberal position on constitutional interpretation and consider historical practices informative but not determinative (whereas Scalia pretends to be an originalist, obsessed with history), but his historical analysis in these cases seems unconvincing at best.

    2) Booker is also deeply a-textual because the Jury trial right somehow becomes a constitutional right to be sentenced by a Judge with extraordinary, almost unreviewable power within a statutory range. It is, in my view, a major step backward in terms of realizing fair, evenhanded application of Justice. It’s results have hardly been a clear-cut boon to criminal defendants; sentencing has become more inconsistent and more dependent on luck. Moreover, lots of district court judges treat white-collar criminals with absurdly gentle hands.

    3) Tone is important. Justice Scalia’s disrespect for his colleagues and people with opposing views results in an inability to consider those views in a thoughtful manner. He revels in this disrespect, and it has only gotten worse as a result. It’s one of the reasons he is a horrible justice, far worse than many other conservative justices.

    • Joe

      My understanding is that Scalia (contra Thomas) notes that police interrogations of the sort here were not around as such in 1791, but the basic meaning of the clause would be lost if we use that to not apply the protection here. There is a touch of “living constitution” in that.

      As with segregation rules, this very well might be sound, but he is not overly consistent here. His originalism is somewhat of the faint heart variety.

      • Rarely Posts

        I’m generally less upset about the Confrontation Clause jurisprudence than the Booker jurisprudence. I’m also not sure what conclusion I would have reached in Booker (fortunately, no one has requested my opinion). Overall, Booker is an example of a decision that defense attorneys love but that may not benefit defendants nearly as much as people thing.

        As to this case, it’s my understanding that the dying declaration exception has a very long history, and it is a particularly compelling circumstance for creating an exception in general (the facts of this case aside). A person’s inability to confront a witness who died shortly after the crime occurred does not pose all of the concerns that other confrontation violations do (for example, unlike in other cases, the prosecution has not taken steps to make the witness unavailable, and the witness cannot simply be produced).

        Once again, I’m not sure which way I would come out here, but I’m not at all convinced that this is “bad law” in the way that many of the recent decisions rolling back Miranda and the exclusionary rule have been.

        • Rarely Posts

          I’d also note: these cases are good examples of why I have some patience with prospective judges and justices refusing to take positions on issues at confirmation hearings. Their refusal is often frustrating, but some of the questions before the Court are genuinely hard. Even thoughtful, experienced lawyers may really be in doubt of the decision they would reach in these cases, and they really would benefit from the extensive briefing and argument on the issue.

          • Rarely Posts

            Having now skimmed the opinions and dissents again, I have to say: Ginsberg is infinitely better than Scalia. Yes, it’s not news, but still.

            • Joe

              Listening to the oral argument, I still don’t quite know where to draw the line. If a 911 call is okay, why not someone shot (how recently? unclear. they didn’t know at first) with the shooter a few blocks away (Scalia makes six blocks sound like the person was in another state) and bleeding?

              I know Alito is persona non grata around here, but his questions on the point during oral argument were reasonable and the advocate simply didn’t offer a clear line on the point. The resulting opinion is not really a shock.

    • big bad wolf

      booker is profoundly ahistorical. it was also the best thing to happen in federal sentencing in two decades. the sentencing guidelines were an utter disaster: obscure, obtuse, and mean-spirited in that they only went up. only people with stephen breyer’s endless faith in formulas and 5-part rules could think they were good or useful.

      the effect of the guidelines on my indigent clients, all of them since i am a PD, was profound and harsh. the sentencing commission, in the name of fairness and technocratic expertise found endless ways to increase sentences and almost none to decrease them. how could they be decreased? the commission in its wisdom could not be worng about the necessary harshness. hideous thing.
      i think scalia was after

      • big bad wolf

        that got away early.

        i think scalia was correct about the delegation issue to the sentencing commission in mistretta and he kept working the issue until the left and the right could unite in their distaste for the guidelines with the opinions in blakely and booker. sure stevens joined in because he thought guideline sentences and the encouraged upward departures from them were too high, while scalia probably wants unreviewable higher sentences (though he also cares deeply, i think, about judiical independence, even if that brings lower sentences)but both were right taht the guideline system was an abomination.

        now, how they got there i sure don’t know. apprendi makes sense—the statutory maximum can’t be raised without proof of elements to a jury of a higher offense. blakely and booker are nonsense—the statutory maximum was the highest possible sentence provided by statute. but seeing how blakely and booker have worked out i am willing to accept them, absurd as they are in premise.

        scalia has also been okay on mandatory minimum sentences in the context of the armed career criminal act. as a criminal defense attorney and a liberal, i don’t mistake him for my friend, but i’ll take what i get. he’s not nearly as disappointing as breyer is in criminal law, and breyer ain’t much better when he tries to help out more broadly. last year’s comstock decision is a travesty of analysis. you can have easily have a health care law without stretching the constitution to the breaking point to lock up sex offenders. and to the extent i worry at all about the health care law withstanding challenge, bryere’s pathetic opinion did little good—did he miss the obvious import of the concurrences?

        sotomayer seems a much more promising voice for our side then our bumbling yet never daunted breyer.

        • Joe

          Depends on what sort of criminal law is at issue. Death penalty, no knock warrants and other issues, defense attorneys rather have Breyer. Scalia is better on a few issues, especially when he can find a bright line rule he likes, but let’s keep a sense of perspective.

          Breyer, after all, was on the opposite side on the substantive issue in the sex offender case. Comstock accepted that as precedent. As a N/P opinion, not a due process one, I don’t see the travesty. Roberts joining it surely seems to me to help the health law.

          The split in Booker and its progeny is confusing. The joker there is Ginsburg, who split the baby w/o an opinion as compared to Breyer, who clearly liked the old rule.

          • big bad wolf

            breyer liked the old rule because as a kennedy staffer and a sentencing commission member he was largely responsible for the commission and its grandiose conception of itself.

            the problem with comstock is that it allows the necessary and proper clause to be an endless series of inferences. to create crimes the feds need an enumerated power, usually commerce. to build prisons to house those convicted of those crimes one has the NP power to build prisons, and of course authority to run those prisons. but to say that the need to run prisons implies an NP power to not release people from the prison after their sentences have been served is to make NP too elastic. holding people subject to a commitment power gives the feds a police power they don’t have.

            you’re correct of course that breyer is preferable on some criminal issues to scalia, but breyer is such a disappointment and such a shoddy thinker that having him on our side depresses me

            • Joe

              Not seeing how Breyer is a ‘shoddy’ thinker. You might not like his overall philosophy. But, that is different from being “shoddy.” Reading his last book, it comes off pretty well, actually.

              Also, you think he made one inference too many in Comstock, which is not the same as “endless.” If civil commitment is allowed (and again, Breyer was more wary of it than Scalia), the feds logically have a limited power to retain them when they are dangerous on that ground.

              The power isn’t unlimited even as to that group. A civil commitment process is set up to offer them due process. States are encouraged to take them on. But, given some have not connection any more to a state and for other reasons, the feds retain the power to civilly commit those under their authority.

              The people weren’t taken out of a state after all. They were already in federal custody. It is akin to civil commitment in D.C.

              • big bad wolf

                one inference that couldn’t be made, and once one can make one inference that shouldn’t have been made there really is no limit to the NP. if the action can’t be fairly tied backed to the enumerated power, than it can’t be necessary and proper. detaining them as dangerous has no logical relation to the power—commerce or another—that allowed the criminal law in the first place; it is not necessary and proper to the exercise of that power.

                it’s not like civil commitment in D.C.—the feds have territorial jurisdiction and police power there.

                i think the limits of the necessary and proper clause and the commerce clause are way, way out there, but i do think they exist and i do think those limits are most likely, perhaps only likely, to be exceeded by congress’s passage of criminal or, as in comstock, quasi-criminal laws.

                as to breyer seeming more wary of it, breyer reminds me of the walrus and the carpenter. tears and concern, but no restraint.

                shoddy is too harsh, i agree, but i am not impressed with him.

              • Joe

                Again, if it be one too many (not true, says seven of nine), it is still not “an endless series” of inferences. One and infinity, a tad different.

                They are federal prisoners. As long as they are in federal custody, yes, it is like D.C. where someone in federal custody can be civilly detained on dangerousness grounds.

                Scalia has his only lacks of restraint. It is of a different caliber. But, it is there. This very case (contra Thomas) underlines his originalist flexibility.

              • big bad wolf

                for some reason, i can’t reply to your last, joe, so i popped up here.

                true that one and infinite are not the same, but the point is that one past allowable is too much.

                also true that seven of the nine said yes. that makes it law, not well reasoned.

                it’s not at all like D.C. where the commitment is under territorial jurisdiction, or for service members under the constitutional provision to make rules for the army and navy. those are clear and authorized federal actions. detaining a prisoner for reasons unrelated to the enumerated power basis for his confinement is nothing like the D.C. detention: the federal government does not have a general power to criminalize or commit. nor, contrary to breyer’s claim, is this some sort of minor addition to prison provided health care. this is indefinite detention without a constitutional basis. i understand that sex offenders are less popular than purported terrorists, but i still think unjustified detention is unjustified detention.

                what i meant by the restraint comment was that breyer is always wringing his hand and worrying about things he then allows. much like the walrus devouring the oysters but crying about it.

                in the end, comstock will likely not have far-reaching effects on anyone, but that is all the more reason to have held the government in its punitive/detention modes to a reasonable link to an enumerated power.

  • Sven

    Just for the record, the replacement for Justice Stevens–Justice Kagan, that is–took no part in the decision.

    The case was decided 6-2, not 7-2.

    • Scott Lemieux

      Whoops, you’re right — I counted the math backwards, always a bad idea with a new justice from the executive branch.

  • Malaclypse

    Off-topic, but the last WW1 vet just died.

    And now every April I sit on my porch
    And I watch the parade pass before me
    And I watch my old comrades, how proudly they march
    Reliving old dreams of past glory
    And the old men march slowly, all bent, stiff and sore
    The forgotten heroes from a forgotten war
    And the young people ask, “What are they marching for?”
    And I ask myself the same question
    And the band plays Waltzing Matilda
    And the old men answer to the call
    But year after year their numbers get fewer
    Some day no one will march there at all

    • Last American vet–there’s still one each in Britain and Australia, according to the article. It seems strange to me that they would all be from English-speaking countries, though.

      • Malaclypse

        Thanks for the correction – missed that paragraph.

        Still the end of an era, and a passing worth pausing and noticing…

    • Hogan

      Also spent three years in a Japanese prison camp during the other WW.

      Time to break out my copy of The Great War and Modern Memory. Man, do I hate Paul Fussell; man, do I love that book.

  • charles pierce

    I’d be interested to see how Scalia would square his assessment of the dying statements here as “implausible” enough to reverse the conviction with his more famous pronouncement that innocence is “no barrier” to an execution. If I’ve bungled the facts here, apologies.

  • seeker6079

    Today’s tale…is so transparently false that professing to believe it demeans this institution

    Funny, that. I feel exactly the same about Bush v. Gore.

  • jim48043

    In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us
    nothing about whether a statement is testimonial,” ante,
    at 14 (emphasis deleted).

    So wrote Ruth Bader Ginsburg in her short dissent, which offered the straightforward proposition that the 6th Amendment might imply certain exceptions, notwithstanding Crawford’s rejection of the proposition that all the hearsay exceptions in modern evidence codes qualify as such.

    The first amazing thing, to me, is that the Michigan Supreme Court did not accept Maura Corrigan’s “this isn’t testimonial” argument, because that Court is and was notorious for being hostile to criminal defendants. I considered that the MSC may have been trying to get the case to SCOTUS for possible overruling of Crawford, which this Bryant surely approaches, but think that unlikely.

    I think Scalia correct; most of the Court does not like the Confrontation Clause and wants to chip away at it, probably to undo Melindez-Diaz so that lab reports can be offered without the physical presence of the technicians. Didn’t Breyer predict the apocalypse in his dissent in that case?

    As for what is “testimonial”, the short answer is if it is offered for the truth of the matter asserted, it is. This, of course, would make “testimonial” a business record to the effect that the criminal defendant actually had a VISA card if that were pertinent to his case, so it has been softened, as Crawford put it, to a statement where the declarant would expect it to be offered as testimony, and, more, that he would expect it to be offered as evidence of criminal activity. Note, that even that definition does not use the formula “had the purpose that it to be offered…” OTOH, if the victim said “he’s on the next block” and that statement was offered only as the basis for why the officer went to the next block and found whatever he found there, it is not terstimonial.

    As for “hard cases make bad law…”, well, Paradise Lost, A Man for All Seasons, and more, have pointed out that all manners of tyranny and wickedness have ever been authorized by asserted necessity.

  • Jon

    if you care about civil liberties, you’ll take Scalia over Alito

    Not saying much. I’d take it a step further and say that if you care about civil liberties, you’ll usually take Scalia over Justice Breyer as well.

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