The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism
Date
1991
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Publisher
Washington and Lee Law Review
Abstract
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Mental health professionals have researched the effects of the adversary trial process on child victim-witnesses in sexual abuse trials. Concern about the psychological trauma related to giving trial testimony, and the damage it may do to the truth-seeking function of the trial itself, have motivated the vast majority of the states to establish special procedures for accommodating child witnesses in such cases. States have also shown great interest in expanding the traditional scope of admissible hearsay in order to use out-of-court statements by child victims. The typical effect of the procedures employed at trial has been to limit, or eliminate outright, the defendant's ability to visually confront the complaining witness. The inevitable collision between such innovations and the Sixth Amendment, which provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him, produced four important, and deeply divided, Supreme Court decisions in the years leading up to the publication of this article: This article examines and critiques the Supreme Court's response to these issues by focusing on the interpretive approach of Justice Antonin Scalia.
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Keywords
Abuse-sexual, Law -- federal, child witness