Oh Justice Scalia...

How wrong you can be never ceases to amaze me...

Long story short: Justice Scalia wrote an opinion where a majority of the court held, with the exception of one small subsection (II(D)(2) for those playing the home game), that a man accused of the murder of his ex-girlfriend is entitled to a new trial because he was not allowed his confrontation right against her.

Let's review this again: confrontation right... against a murder victim.

Barring necromancy, I don't see how anyone is ever going to be able to have the murder victim confront them.

But let's delve in to those messy facts! First, the testimony that his attorney claims infringed his Crawford rights was a phone call report made to the police some time earlier in which the victim alleged that the defendant made threats against her. Normally, this is (1) hearsay and (2) potentially testimonial, thereby triggering a Crawford analysis.

The basis of Scalia's opinion was that there was no finding that this fell within the ambit of Reynolds, which carved an equitable exception that the defendant cannot, by his own malfeasance, attempt to prevent a witness against him from testifying and thereby invoke his confrontation rights. That isn't cool.

So what makes this situation different from Reynolds? Arguably, it is the lack of the finding that his murder of the girl was intended to prevent her testifying against him. Her testimony was used to impeach his own affirmatively plead defense of self-defense.

Here's my analysis:

When the defendant puts in to issue an affirmative defense aimed at mens rea, such as here, the defendant's mental state is at issue. The proof of such a defense will come during the defendant's case in chief. He bears the burdens of production and proof on this issue. In most cases, the prosecution is entitled to a rebuttal of this by their own evidence. This tape is hearsay. But, the declarant is unavailable. According to Cali. R. Evid. § 1350(3), this should be a statement where the declarant is unavailable and it is memorialized in a tape format to a law enforcement officer. The only potential problem should be a confrontation problem.

The right of confrontation says that the accused in a criminal case is entitled to be presented with the witnesses against him and to cross-examine them. But this case presents a novel problem: how do you cross-examine a witness you are accused of killing? Proof of the crime is seriously hindered by the unavailability of testimony; this ruling today creates an incentive to kill the person as long as a defendant can conceivably argue that he did not kill the victim with the intent of preventing his or her testimony at trial.

I think that the Reynolds exception, and an exception to the general rule of Crawford, apply in this situation. The defendant, by pleading an affirmative defense, is not in the position of the accused. In this, he has stepped in to an affirmative position. Under our civil law, he would be in the shoes of a plaintiff. Analogizing, what right to confrontation should the defendant have in putting on an affirmative defense? After all, this was his voluntary choice. If a defendant knows that a tape of this nature, or other similar evidence exists, by making an affirmative act, he places himself in jeopardy of such evidence being used.

This is not a foreign concept in our jurisprudence. The defendant is entitled to a shield from character evidence such as reputation or opinion testimony, or even first-aggressor evidence, unless the defendant places his character in to issue. While it may be beneficial for defendants to call their mothers, priests and schoolteachers to the stand to testify about what good souls they are, it is not advisable (in most cases) because it allows the prosecution to rebut such evidence. Where the defendant pleads that he could not have committed murder by reason of justified use of force, any evidence tending to negate that thereby becomes both relevant and essential to the case. Should the defendant wish to avoid this damning evidence, he should not put it in to issue.

Nor should we, from a policy standpoint, allow defendants to profit from their own misconduct. We should disfavor any historical analyses of rights such as confrontation, because it our jurisprudence does not evolve with our understanding of humanity, its slavish devotion to the past becomes just as dangerous as a lack of historicity in legal understanding altogether. One must study the past to learn from its mistakes, not perpetuate them.

Sadly, Scalia's traditionalist, ultraconservative politics have gotten the best of him once again. I wish only that he had spent more time thinking about justice in this case and less about how he could piss off Breyer, Stevens and Kennedy. And a begruding thanks to Ginsberg and Souter, who, against their better judgment, joined with the majority, but at least had the grace enough not to join with Scalia's immature taunting of his fellow justices.