On Monday, the U.S. Supreme Court, overturning a 24 year old precedent, held in Crawford v. Washington that the Confrontation Clause means what it says and says what it means: the accused in a criminal trial has the right to be confronted by witnesses against him. This holding replaced the Roberts precedent, which reduced the Confrontation right to a balancing test meant to ensure that out of court testimony was “reliable.” Easily overlooked in the opinion is Justice Scalia’s principled attack on balancing tests as means of protecting constitutional rights:
We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611- 612, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (SCALIA, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s–great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts’ providing any meaningful protection in those circumstances.Not surprisingly, Justice O’Connor, who has an inordinate fondness for balancing tests, did not join Justice Scalia’s opinion.
Balancing tests are an especially bad idea with regard to constitutional rights, but they hardly serve the interests of justice in other areas of law. Consider the influential “Wade” balancing test in products liability law, which asks that liability for injury be determined by weighing the following factors: 1. The usefulness and desirability of the product-its utility to the user and to the public as a whole; 2. The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury; 3. The availability of a substitute product which meets the same need and is not as unsafe; 4. The manufacture’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; 5. The user’s ability to avoid danger by the exercise of care in the use of the product; 6. The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and 7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
This test is quite obviously incoherent, providing no mechanism for a product manufacturer to determine in advance whether its product will be determined to be defective. As Richard Epstein has written, “It is a utilitarian nightmare. What starts out as a faithful application of the utilitarian calculus ends up as an unprincipled battle of the experts. Everything is admissible; nothing is quantifiable; nothing is dispositive… all too often, anything from a plaintiff’s verdict for punitive damages to defendant’s verdict of no liability is consistent with the evidence.”
Let’s hope that Scalia’s opinion is the beginning of the end of balancing tests.
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