MARYLAND v. CRAIG 497 U.S. 836 (1990)

This is another Sixth Amendment case in which the Supreme Court declined to follow the express words of the text. Although the Court engaged in what is usually described as judicial activism, it acted in a good cause and had precedent for its exception to the confrontation clause of the amendment. In every case in which hearsay evidence of any sort is admitted, the right of the accused to confront the witnesses against him or her becomes empty. In this case the Court held, 5–4, that the victim of child abuse may testify on closed circuit television to avoid the trauma of face-to-face confrontation with the accused.

justice sandra day o'connor, for the Court, reasoned that the state had a legitimate interest in protecting the child witness from psychological trauma. Face-to-face confrontation, assured by the text of the Sixth Amendment, turned out not to be an indispensable element of the confrontation guarantee.

justice antonin scalia, an unlikely spokesman for the liberal Justices who joined him, rested his dissent on the clear language of the text. He accused the majority of a line of reasoning that "eliminates the right." But his view on the admission of hearsay ("not expressly excluded by the Confrontation Clause") would also justify admission of television testimony in the presence of defense counsel—because the amendment does not expressly exclude such a procedure. Scalia further questioned whether the evidence of a frightened child was reliable. But the state, not the Court, should decide whether the child required protection. Scalia's final proposition, that the Court is not at liberty to ignore the confrontation clause, was at war with his several illustrations to the contrary.

Leonard W. Levy
(1992)