Scalia and the Sixth Amendment

Our chapter on civil liberties discusses the rights of criminal defendants. At The Los Angeles Times, David Savage reports on the right to confront accusers:

Justice Antonin Scalia, the Supreme Court's most outspoken and combative conservative, is not often described as friendly to criminals.

But in recent years, Scalia has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.

Next up in early December is a Chicago rapist who claims his 6th Amendment right to confront his accusers was violated because prosecutors did not put on the witness stand a lab technician from Maryland who conducted the DNA test that sent him to prison.

This claim might have been a loser even during the court's long-past liberal era. But with the relentless Scalia leading the charge, it may well succeed, a prospect that worries prosecutors and crime lab directors across the nation.

Sometimes, Scalia's insistence on following the "original" Constitution leads to unexpected results. And for him, there are no shades of gray and no halfway measures.

The 6th Amendment to the Constitution says the "accused shall enjoy the right … to be confronted with the witnesses against him." To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those "witnesses" who did not or cannot testify in court. He takes this view even if the witness is dead.