Supreme Court decision (!)

The Supreme Court ruled unanimously today that accusers have the right to confront witnesses which may exculpate them, and that the Sixth Amendment commands “not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” (This being from the majority opinion, written by Justice Scalia)

What I find particularly interesting about this is that certain other cases, e.g. US vs Moussaoui, are coming up in which this is expected to be a very substantial issue. A strong ruling from the court in this case – and with an opinion written by Justice Scalia, of all people – could be a very significant influence on what comes next, and could even provoke a constitutional crisis if Ashcroft follows through on his threat to unilaterally remove Moussaoui from the justice system if the courts rule in Moussaoui’s favor.

The case today was Crawford v. Washington, No. 02-9410.

Published in: on March 8, 2004 at 13:37  Comments (2)  


  1. I’m not sure I understand the implications of this. Can you explain?

  2. Zacarias Moussaoui is the only person to be charged in the United States in connection with the events of 9/11. His criminal defense centers on testimony not yet given by certain members of al Qaeda who are in American military custody. Essentially, his argument is that yes, he knew these people, and he had nothing to do with any of this, and they will back him on that. The Justice Department has refused, however, to allow these people to testify, or even to be deposed remotely, on the grounds that this could jeopardize ongoing interrogations.
    Moussaoui’s attorneys asked the courts to dismiss on those grounds, and the Justice Department actually urged the district court to do so, since an outright dismissal would almost certainly be overturned at the court of appeals. (This case is before the 4th circuit, which is one of the most conservative in the nation) Judge Brinkema, however, responded with what I consider a remarkably nuanced opinion. She refused to drop the charges, but held that if the defendant is to be denied access to possibly exculpatory evidence, then (1) a capital charge is excluded, and more interestingly (2) the government is thereby enjoined from mentioning any of the evidence or incidents against which the forbidden testimony would be a specific defense. Since in this case, the latter includes more or less all of the events of September 11th – and thus the heart of the case – it’s a substantial impediment. However, the ruling was a very careful one, and is generally regarded as likely to stand up to review.
    The matter is in appeal at the moment, and I don’t know whether the Justice Department has decided to let the appeal continue to the circuit court or to simply file for writ and go straight to the Supreme Court. However, John Ashcroft has publicly stated that if the court rules against him in any way that would substantially weaken the government’s case, he will remove Mr. Moussaoui from the justice system and have him transferred to military custody.
    Can you say “constitutional crisis?” In essence, the Attorney General has claimed the unilateral power to override the courts whenever he feels it necessary, such as if they prevent a conviction.
    At any rate, today’s ruling would make an interesting reference in the arguments that are sure to come in US vs Moussaoui. Especially given the unanimity of the verdict and the fact that Scalia himself wrote the opinion, it indicates a willingness of the court to uphold traditional Sixth Amendment protections fairly strictly.
    (Note that none of this really has bearing on whether or not Moussaoui is guilty; it’s simply the question of whether he has the right to confront witnesses, and beyond that the question of the authority of the executive to override the judiciary)

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