Constitutional Interpretation – Page 45 – Marquette University Law School Faculty Blog

Confrontation and Criminal Trials: What’s Actually in Play

Post author:Daniel D. Blinka
Post published:July 6, 2009
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

The long-awaited Supreme Court decision in Melendez-Diaz v. Massachusetts finally came down on June 25, 2009. See my prior post here. Neither the majority opinion nor the dissent yield many clues about what took so long (this was the last case from the Court’s November sitting), and on the surface at least there is little that is portentous. Yet the case is ultimately about far more than hearsay evidence in criminal trials. It reveals significant discord about the nature of the modern adversary trial as well as skepticism over the use of science in the courtroom.

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test. The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination.

More on Caperton

Post author:Richard M. Esenberg
Post published:June 17, 2009
Post category:Constitutional Interpretation Judges & Judicial Process

In a comment following Ed Fallone’s post on Chief Justice Robert’s little list (actually it as a rather long list), he argues that there is little in the text, structure and history of the Bill of Rights that might inform the question of when the due process clause requires a judge to recuse herself because of the potential for bias associated with campaign contributions:

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

Bork Reconsidered, Part II

Post author:Edward A. Fallone
Post published:June 16, 2009
Post category:Constitutional Interpretation U.S. Supreme Court

In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism. My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation. In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted). Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her. Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party. If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.