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Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?


Stephanos Bibas


University of Pennsylvania Law School


Georgetown Law Journal, Vol. 94, November 2005
U of Penn Law School, Public Law Working Paper No. 06-11

Abstract:     
In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. Blakely failed, in contrast, because the historical record is weak, the Court was unwilling to be radical enough, and its bright-line rule is inflexible and impractical. This Essay concludes by considering whether originalism and formalism are compatible, which methodology takes precedence, and how much they influence other members of the Court.

Number of Pages in PDF File: 22

Keywords: Scalia, Supreme Court, originalism, formalism, constitutional, interpretation, criminal procedure, Blakely, Crawford, Apprendi, Booker, Confrontation Clause, sentencing

JEL Classification: K14, K41

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Date posted: July 29, 2005 ; Last revised: May 12, 2009

Suggested Citation

Bibas, Stephanos, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?. Georgetown Law Journal, Vol. 94, November 2005; U of Penn Law School, Public Law Working Paper No. 06-11. Available at SSRN: http://ssrn.com/abstract=763804

Contact Information

Stephanos Bibas (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)
HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/
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