Miami law professor Michael Froomkin and Volokh conspirator David Bernstein have some additional thoughts on Justice Scalia’s denunciation of constitutional balancing tests in Crawford v. Washington, noted earlier here.
2 thoughts on “Out of Balance”
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There’s also an article at Slate about how this is going to affect domestic violence prosecutions:https://slate.msn.com/id/2097041/, although unlike the author (a public defender), I don’t think the results are necessarily a good thing – even if it is constitutionally correct. (But I’m a paternalistic, nanny-state liberal, so what did you expect?)
I certainly don’t think this case is an unambiguously good thing as a public policy matter, but it is clearly the most sensible reading of the constitutional text, and it does have some important benefits as a policy matter in avoiding prosecutorial abuses. The biggest downside is the increased risk of violence against witnesses who have testified in the grand jury or at a preliminary hearing.