An interesting sidelight on Crawford and Craig

In its decision today in United States v. Gonzalez-Lopez, the Supreme Court, per Justice Scalia, has an interesting discussion in passing of Crawford with an intriguing citation to his dissent in Maryland v. Craig, 497 U.S. 836 (1990), which allowed children to give testimony outside the presence of the accused in some circumstances. The Court holds that the right to have counsel of one's choice is violated without the need to show prejudice. In doing so, it refuses to follow the following logic: The right is meant to ensure a fair trial, and therefore unless a fair trial was impaired there is no violation. The Court says:

It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment's right of confrontation--a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.' Maryland v. Craig, 497 U. S. 836, 862 (1990) (SCALIA, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore 'indicia of reliability,' the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' Id., at 61.

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided-- to wit, that the accused be defended by the counsel he believes to be best. . . .

The discussion is significant for Confrontation Clause analysis for at least two reasons.

First, it offers a key to the intellectual foundations behind Crawford. Scalia indicates that an unrestrained functional approach -- determine the purpose of the rule, and then simply decide on a case- by-case basis whatresult would support that purpose -- is unacceptable in this context. He is operating more categorically, but assessment of the purpose of the doctirne is essential in determining what the critical categories are.

Second, Scalia was able to take a pot shot at Craig on behalf of a majority of the Court -- the four more liberal members of the Court and himself. Scalia dissented bitterly in Craig, and while Crawford untouched, its categorical nature certainly had more affinity with Scalia's dissent in Craig than with Justice O'Connor's opinion for the majority. Gonzalez-Lopez (a return to the win column for Jeff Fisher, by the way) provides Scalia with a little more ammunition for oerruling Craig in light of later developments.