Inside, there's a conservative split.

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Youngest Abuse Victims Get Say in Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court just made it much easier to prosecute child abusers. In principle, that’s a good thing. But it came at the expense of weakening the constitutional right to confront your accuser in court -- and that’s unfortunate. In a fascinating twist, the court’s aggressive opinion, by Justice Samuel Alito, brought out the ire of Justice Antonin Scalia, revealing the growing split between the old-line conservative and his younger counterpart, the man who was once humorously nicknamed “Scalito.”

The facts of the case, Ohio v. Clark, were simple. Darius Clark, one of the more unattractive Supreme Court respondents in recent memory, sent his girlfriend away from Cleveland, where they lived, to Washington to engage in prostitution. Her 3-year-old son, identified in court papers as “L.P.,” was left in Clark’s care along with a younger sister. Almost the moment the mother was gone, L.P. showed up at preschool with “red marks, like whips of some sort” on his face.

The lead preschool teacher asked L.P., “Who did this to you?” L.P. was “bewildered” but answered “something like Dee, Dee.” When asked whether Dee was big or little, the child said, “Big.” Clark’s nickname was “Dee.”

The next day, a social worker took L.P. and his sister, identified as A.T., to the hospital. It was found that “L. P. had a black eye, belt marks on his back and stomach, and bruises all over his body. A. T. had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair.”

I include the horrible details not just because the Supreme Court did, but also because they may have affected the legal wrangle that ensued. In charging Clark with child abuse, the state introduced L.P.’s statements to his teachers as evidence. Clark’s lawyers argued that the statement couldn't be made under the confrontation clause of the Constitution -- which gives defendants the right to face their accusers in court -- because L.P., a child, couldn’t testify reliably in court under Ohio law. Clark was convicted. But the state appeals court and Ohio Supreme Court reversed the verdict. They held that the child’s statements to the teacher were “testimonial in nature,” and therefore couldn’t be admitted in court under guiding Supreme Court precedent.

That precedent, at least in theory, is a 2004 case called Crawford v. Washington, written by Scalia and joined by six other justices. The Crawford case was itself a landmark. It overturned the existing confrontation clause precedent, in a 1980 case, Ohio v. Roberts.

Under the standard that applied from 1980 to 2004, the court would ask whether an out-of-court statement fell into a traditional judicial exception for the admission of such statements (known as hearsay), or whether the statement had other “guarantees of trustworthiness.” If it did, the statement could be admitted. If not, the statement was out.

Scalia’s Crawford opinion replaced the old test with a new one. Now the court was supposed to ask whether the out-of-court statement was a form of testimony. If it was, the statement would be excluded; if not, it could be admitted. Scalia, wearing his originalist hat, intended to toughen the standards for admitting testimony. He was putting teeth in the confrontation clause, and making it harder to admit statements made out of court when the witness was available to testify.

In Thursday's opinion, Alito, writing for a majority of six, took some trouble to dilute the Crawford standard, with which he has previously disagreed. He first said that the Crawford decision “adopted a different approach” from what had come before. Scalia, in an opinion joined only by Justice Ruth Bader Ginsburg, was outraged. “When else,” he asked, has “the categorical overruling” of an earlier decision been characterized as “a different approach”? To him, Alito was “unabashedly” displaying “hostility” by engaging in “snide detractions.”

Then Alito suggested in a nonbinding remark that the Crawford rule might not apply at all under a range of circumstances. In particular, he said that statements made to people other than police officers are almost never testimonial. Alito apparently didn’t have the votes to declare a categorical rule that all statements made to anyone other than the police may be admitted in court later. But he made it clear that he would welcome such a rule. He also strongly hinted that statements to teachers could never be seen as testimonial.

Alito further said that statements by children would almost never be testimonial, again implying that he would welcome a rule that exempted children from the confrontation clause altogether. Again, he seems not to have had the votes to reach that conclusion.

Scalia was willing to conclude that the child’s statements were not testimonial because as a 3-year-old he wasn’t intending to initiate a prosecution against Clark. But he reserved special scorn for Alito’s suggestion that the burden was on the defendant to prove that a statement being introduced against him violated the confrontation clause. Scalia explained that under Crawford, the burden is exactly the other way around: The prosecution must prove a deep-rooted exception to confrontation if it wants to introduce an out-of-court statement when the witness is unavailable.

What’s going on here is that the younger conservatives like Alito and Chief Justice John Roberts, joined by the younger liberals, are signaling a willingness to roll back Scalia’s originalist advocacy of the confrontation clause when it comes to child abuse. Advocates for those who have suffered domestic abuse who also favor weakening the confrontation clause are sure to take note.

Scalia’s harsh language for Alito reflects a schism between old and new conservatives at the court. Justice Clarence Thomas wrote his own opinion reaffirming the originalism of Crawford even more strongly than Scalia. Conservatism has changed over the last two decades -- and the court’s justices reflect that trend.

  1. The advocacy groups most troubled by the Crawford decision were those who focus on domestic violence. Victims of domestic abuse often recant their testimony or refuse to appear in court, whether out of fear of continued abuse or a more complicated desire not to imprison their abusers who may often be their primary source of income and with whom they have ongoing relationships. For this reason, domestic violence advocates want to admit victim statements made in reporting abuse. In 2006, the court split two decisions on the issue.

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Noah Feldman at

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