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June 18, 2012

Williams v. Illinois, the latest SCOTUS Confrontation Clause ruling, finally handed down by deeply divided Court

Thanks to the LiveBlogging over at SCOTUSblog, I can report that we are finally getting some criminal justice action from the Justices this morning.  To begin, we finally have the long-awaited ruling in Williams v. Illinois, the latest case dealing with the reach of the Sixth Amendment's Confrontation Clause.  Here is the early report on the ruling from the SCOTUSblog folks:

Williams v. Illinois, the Confrontation Clause case. The decision is to affirm the Illinois S. Ct. It is a divided decision. Justice Alito's opinion represents four Justices. The form of testimony in this case does not violate the Confrontation Clause....

Alito opinion is joined only by Chief Justice and Justices Kennedy and Breyer. Justice Breyer has a concurring opinion; Justice Thomas concurs in the judgment only.

Justice Kagan dissents, joined by Justices Scalia, Ginsburg, and Sotomayor. So the overall vote is 5-4.

The full opinion is Williams is now available at this link and it runs 98 pages in total.  I hope to find the time and energy to read all the opinions and see what we might glean from it all.  And (fortunately?), this is the only criminal justice action from the Court today and so we still have a bit more waiting for the sentencing trio still pending.

UPDATE A (too) quick read of the four opinions in Williams leads me to this simple conclusion: "What a bloody mess!"  Though I have long believed that the Confrontation Clause ought to apply to proof offered at sentencing, I am strangely pleased that a sentencing geek like me does not now need to perfectly figure out what the heck is going to happen in this arena with Williams and its aftermath.

June 18, 2012 at 10:14 AM | Permalink


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Given these opinions, I think Justice Breyer is right that it needed to be re-argued. If anybody can figure out whether the "not yet a suspect" rule of Alito or the "no formalities" rule of Thomas is the narrowest ground on which the judgment is based, it will be a miracle.

Posted by: TMM | Jun 18, 2012 11:33:42 AM

"constitutional gee-gaw"

- Justice Kagan

Posted by: Joe | Jun 18, 2012 11:51:48 AM

Nice to see that the Court's resident prosecutor, J. Alito, got to write this pro-prosecution mess.

Posted by: anon | Jun 18, 2012 12:00:25 PM

I belive that our judicial system has gone off to a differnet planet

Posted by: Buy Stun Guns Online | Jun 18, 2012 12:27:19 PM

Thomas +4 do not agree with the "not yet a suspect" rationale. The narrowest ground is clearly Thomas's, which is in effect the extra prong that a prosecution must prove before adissibility. Interesting, given that it only received one vote. Cf. Bakke v. Regents, Baze v. Rees

Posted by: Alex | Jun 18, 2012 12:37:51 PM

Neither are actually a narrow reading. They are two separate rationales.

Here is what I get as the basic breakdowsn

1. 5 justices reject that it isn't offered for it's truth (Thomas+dissent) so that is binding
2. 5 justices reject the plurality rationale that he is not yet a suspect/for on going emergency aspect (Thomas+dissent) so that, too, is binding.
3. 5 justices agree that if it is testimonial then it violates the confrontation clause (Thomas+dissent)

That leaves the question "Is this document testimonial?" While 5 in total said no, there were two distinct rationales. Neither of which can accurately be described as narrower than the other. Further, 1 of them (point 2 above) was rejected by a majority of the court. That leaves only 2 options: 1. Thomas test (of which no other justice has ever signed on to) or 2. The dissent which says it is testimonial. That is really the only question left open and one that would likely be resolved as testimonial by an overwhelming majority of lower court judges.

This leads me to believe, that despite the outcome this is actually a fairly pro defense decision providing the lower court judges actually look at the opinion and let actual majorities (5 justices agreeing) control.

Posted by: Matt | Jun 18, 2012 1:11:49 PM

resident prosecutor? did they have a vote and Alito won over Sotomayor?

Posted by: Joe | Jun 18, 2012 1:19:11 PM

I agree that Thomas’s view is the narrowest, but it probably won't be for long. The waters are muddy enough, and Confrontation Clause issues prevalent enough, that a circuit split will surely arise within a year or two.

I suspect most of the Justices didn’t think that reargument would produce any movement among the various entrenched positions, so they decided to punt the issue to another case down the road.

Posted by: Marc Shepherd | Jun 18, 2012 1:22:07 PM

No vote was needed, Joe. Alito is results-oriented in criminal law cases.....more than anyone else on the Court. That’s the point. You couldn't figure that one out?

Posted by: anon | Jun 18, 2012 1:27:16 PM

anon, Sotomayor and Alito were both "prosecutors" and "results oriented in criminal law" is not necessarily the only way to be one. I get your meaning but that was MY point.

Posted by: Joe | Jun 18, 2012 1:32:19 PM

Matt in terms of point #1 it is six because Breyer believes that too

"The dissent would abandon this well-established rule. It would not permit Lambatos to offer an expert opinion in reliance on the Cellmark report unless the prosecution also produces one or more experts who wrote or otherwiseproduced the report. I am willing to accept the dissent’scharacterization of the present rule as artificial, see post, at 15–17 (opinion of KAGAN, J.), but I am not certain that the dissent has produced a workable alternative, see Bullcoming, supra, at ___ (KENNEDY, J., dissenting)"

Posted by: Daniel | Jun 18, 2012 2:24:11 PM


I didn't include him because it is unclear he outright rejects it (and it isn't really important to determine that). The fact that he also criticizes the dissent for not having an alternative leads me to believe he'd stick with tradition.

Plus technically if he wanted to reject it he shouldn't have joined the plurality as to that part. He did which is all that is necessary to say he is part of 4 justices to agree with it. He could have joined part of the plurality and then concurred in part and in judgement. That isn't how he voted though, so as far as setting precedent goes he has to be counted as part of the plurality on that point not Thomas + dissent.

Posted by: Matt | Jun 18, 2012 3:27:29 PM

Sotomayor doesn't have a bias like Alito. Sotomayor authored Bryant, for instance. But Alito alwaysvotes for the prosecution in non-unaninimous SCOTUS decisions.

Posted by: Jacob Berlove | Jun 19, 2012 12:01:23 AM


That's taking his remarks out of context. He clearly doesn't believe that #1 is true. But he's not willing to replace it without something better and he doesn't think the dissent is something better. So yes, he's sticking with tradition for lack of a better alternative. But he also clearly believe that there is a better alternative otherwise he would not have said the case should have been re-listed for new arguments. And re-listing IS his official position. So in that sense he didn't join the majority at all except in the judgement.

So 6-3 is the proper reading in regards to #1.

Posted by: Daniel | Jun 19, 2012 2:30:44 AM

all decisons like this do is prove they are as much a group of two-faced lier's as our glorious congress and about as useless.

Posted by: rodsmith | Jun 20, 2012 2:13:27 PM

The bottom line is that we are all waiting to see who dies/retires first to see if Crawford stays or goes.

Posted by: Stephen Foster | Jun 21, 2012 2:08:55 AM

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