Title: The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism
Abstract: Mental health professionals have researched effects of adversary trial process on child victim-witnesses in sexual abuse trials. Concern about psychological trauma related to giving trial testimony, and damage it may do to truth-seeking function of trial itself, have motivated vast majority of states to establish special procedures for accommodating child witnesses in such cases. States have also shown great interest in expanding traditional scope of admissible hearsay in order to use out-of-court statements by child victims. The typical effect of procedures employed at trial has been to limit, or eliminate outright, defendant's ability to visually confront complaining witness. The inevitable collision between such innovations and Sixth Amendment, which provides that in all criminal prosecutions, the accused shall enjoy right ... to be confronted with witnesses against him, produced four important, and deeply divided, Supreme Court decisions in years leading up to publication of this article: Kentucky v. Stincer (1987), Coy v. Iowa (1988), Idaho v. Wright (1990), and Maryland v. Craig (1990).This article examines and critiques Supreme Court's response to these issues by focusing on interpretive approach of Justice Antonin Scalia. Scalia was not only a pivotal actor in Court's resolution of these four cases. He articulated (both in Coy, where he wrote opinion of Court, and in Craig, where he delivered a powerful dissent joined by three other Justices) a starkly textualist vision of Constitution, like of which has not been seen since heyday of Justice Hugo Black. The tensions and contradictions of Stincer, Coy, and Craig, each of which dealt with restrictions on confrontation with witnesses testifying at trial or trial-related proceedings, provide primary grist for Parts II and III of article. Part IV discusses Wright, a hearsay case. Part V explores implications of Justice Scalia's and Court's interpretive approaches in this difficult area for constitutional criminal procedure.
Publication Year: 2007
Publication Date: 2007-11-09
Language: en
Type: article
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