Another Post editorial.
Confronting One's Accusers
Thursday, March 18, 2004; Page A30
JUSTICE ANTONIN Scalia is not known as the Supreme Court's leading civil libertarian. His judicial philosophy -- which puts primacy on the Constitution's actual text -- often leads him to view constitutional rights narrowly. But that same doctrinal fundamentalism has another side: a fierce unwillingness to water down those protections that he finds in the Bill of Rights. That insistence lies at the core of an important opinion he penned last week on behalf of six of his colleagues, throwing out the conviction of Michael Crawford. The opinion -- which overturns a 1980 decision limiting the Sixth Amendment right of criminal defendants to confront their accusers in court -- presents an attractive vision of a Sixth Amendment that rigorously lives up to the rights it promises. This vision has significant implications for terrorism cases, implications with which the courts will soon have to wrestle.
Mr. Crawford was convicted of assault in Washington state in connection with the stabbing death of a man who allegedly tried to rape his wife. At his trial, he asserted a spousal privilege to prevent his wife from testifying against him, so the state introduced prior statements she had given that arguably conflicted with his account. This, the state high court ruled, was permissible under the Supreme Court's 1980 decision, which held that statements could be admitted from an unavailable witness if they bore "adequate 'indicia of reliability.' "
But Mr. Scalia and a solid court majority have now repudiated that test. The confrontation clause, he writes, does not guarantee "that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Waving away a defendant's confrontation rights "because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." The earlier standard leaves too much to judges' discretion. The court instead offers a simpler and more stable rule: the right "to be confronted with the witnesses against him" means just what it says.
This seems right, certainly in this context. But it also raises potentially difficult issues for terrorism cases such as that of accused Sept. 11 conspirator Zacarias Moussaoui. That case is bogged down over whether the defendant will get to call as witnesses detainees being held overseas by the government -- the right to call witnesses being another protection guaranteed by the Sixth Amendment. The government refuses to produce them on national security and other grounds. The seeming compromise would be to let the jury see some kind of summary of their statements. But if those statements contain material that implicates Mr. Moussaoui -- as well as the material he wants to introduce, which reportedly tends to mitigate his role -- does it not violate his confrontation rights to introduce them? Moreover, if the court interprets Mr. Moussaoui's compulsory process rights as literally as it has interpreted Mr. Crawford's confrontation rights, any compromise based on summaries of witness statements could be deemed constitutionally improper.
The court's insistence that Sixth Amendment rights be taken seriously is welcome. In future cases, however, it will have to take care to ensure that these rules do not become a straitjacket for the federal courts in terrorism trials that already present a profound challenge. |
