Crawford and the Common Law Criminal Trial

Authors

Robert K. Kry, MoloLamken LLP

Abstract

Three weeks after the Supreme Court decided Crawford v. Washington, Justice Scalia delivered the keynote address at the annual meeting of the American Society of International Law. Justice Scalia expounded on his views of when United States courts should and should not rely on foreign law. He urged that courts interpreting a treaty should look to how foreign courts construe the same instrument, on the reasonable assumption that treaty partners would want to strive for a consistent interpretation. By contrast, he took a dim view of relying on modern foreign law to interpret the U.S. Constitution, as the Court has done a number of times when deciding whether a punishment was cruel or unusual under the Eighth Amendment. Justice Scalia did not believe we have nothing to learn from foreign legal systems. He noted that he himself had taught comparative law before taking the bench. But as he pointed out, the Framers wrote much of the Constitution the way they did precisely because they believed the American way of doing things was better. As the Justice put it: “If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are. And nothing has changed. I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice—not because those systems are unjust, but because we think ours is better.” That philosophy frames my remarks today. To understand the Confrontation Clause, I contend, we should discern not just what the Framers were striving for, but also what they were reacting against. The Framers sought to preserve a distinctly English institution: the common law criminal trial. And they sought to protect that institution against the civil law traditions of Continental Europe. In Justice Scalia’s terms, the Framers may not have believed those continental systems were unjust, but they certainly thought ours was better.

Recommended Citation

Robert K. Kry, Crawford and the Common Law Criminal Trial, 57 U. Mich. J. L. Reform 753 (2024).
Available at: https://repository.law.umich.edu/mjlr/vol57/iss4/4