The right to confront your accuser is alive and well.  I can=t say that I agree with opinions written by United States Supreme Court Justice Antonin Scalia often, however, I am quite happy to report on an occasion in which I believe he did the right thing.


The issue here is what rules take precedence when witnesses who were around at the time of an arrest are not available at the time of the trial and the defendants and their attorneys have had no occassion to cross-examine these witnesses.  Justice Scalia writing for the seven justice majority concluded that statements from police interrogations, statements made before a grand jury or at a former trial, and prior testimony given at a preliminary hearing cannot be used in a new trial.  This decision stemmed from the matter of Michael Krofter who was accused of assault.  One of the initial witnesses against him was his wife, Sylvia Krofter, who gave a taped statement to the police at the time of her husband=s arrest.  When it was time for the trial to commence, Mrs. Krofter invoked what is referred to as her spousal right to not testify against her husband.  Over the defense objection, the judge permitted the prosecution to play the tape of the statement she gave to the police at the time of the arrest. 


This is a very important decision as it overturns a 24 year old precedent regarding prosecution use of testimony from witnesses who do not appear for a jury trial. 


The previous law on this subject stemmed from what is known as the Roberts Case which permitted the above-mentioned types of statements to be introduced at trial as long at there was what was referred to as Aan adequate indicia of reliability.@


This decision is huge!  There are many types of situations that will be affected.  One of the most significant in the state of California may well pertain to spousal battery cases.  In these cases, spouses often give statements at the time the other spouse is arrested; however; they often reconsider shortly thereafter and don=t want to testify at trial.  There is a statute in this state that permits prosecutors to use the victim spouse=s earlier statement at time of trial if she refuses to testify at the trial.  It can be strongly argued that this decision nullifies that statute.  Justice Scalia did not list all of the situations that this new rule would cover, however, I expect a great deal of litigation as lower courts attempt to decide what it covers and what it doesn=t.


What makes this decision especially meaningful is that this one of the few times that all of the Supreme Court Justices with the exception of Chief Justice Rehnquist and Justice O=Connor voted on the same side.  Normally you have the more liberal Justices on one side, the more conservative Justices on the other, and the more moderate Justices in the middle wielding a great deal of power. 


Justice Scalia really dove into this opinion, tracing the right to confront one=s accuser back to ancient Roman times.  He paid special attention to the 1603 Jury Trial of Sir Walter Raleigh who was accused of treason and was convicted and sentenced to death based on an accuser who wrote a letter and was questioned outside of court. 


Justice Scalia next talked about the right to confront one=s accuser in relation to the American Colonies.  He emphasized his belief that the founding fathers of our constitution would not have been in favor of admitting testimony of a witness who was not available to come to court.


In a perfect world, Justices would ignore their ideological leanings and do the right thing on a regular basis.  Unfortunately, as I have written about in the past, we see many 5 to 4 decisions with the ideological split quite apparent.  In this case, 7 Justices agreed as to what is clearly right even though it overturns precedent and will create a great deal of litigation as courts try to sort through the decision and its consequences.  This decision is just pure unadulterated good news.  Could this be a start of a new trend?  I doubt it, but one can always hope.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at (818) 244-8694 or at