The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism

71 Pages Posted: 9 Nov 2007 Last revised: 26 Feb 2016


Mental health professionals have researched the effects of the adversary trial process on child victim-witnesses in sexual abuse trials. Concern about the psychological trauma related to giving trial testimony, and the damage it may do to the truth-seeking function of the trial itself, have motivated the vast majority of the states to establish special procedures for accommodating child witnesses in such cases. States have also shown great interest in expanding the traditional scope of admissible hearsay in order to use out-of-court statements by child victims. The typical effect of the procedures employed at trial has been to limit, or eliminate outright, the defendant's ability to visually confront the complaining witness. The inevitable collision between such innovations and the Sixth Amendment, which provides that in all criminal prosecutions, "the accused shall enjoy the right ... to be confronted with the witnesses against him," produced four important, and deeply divided, Supreme Court decisions in the years leading up to the publication of this article: Kentucky v. Stincer (1987), Coy v. Iowa (1988), Idaho v. Wright (1990), and Maryland v. Craig (1990).

This article examines and critiques the Supreme Court's response to these issues by focusing on the interpretive approach of Justice Antonin Scalia. Scalia was not only a pivotal actor in the Court's resolution of these four cases. He articulated (both in Coy, where he wrote the opinion of the Court, and in Craig, where he delivered a powerful dissent joined by three other Justices) a starkly textualist vision of the Constitution, the like of which has not been seen since the heyday of Justice Hugo Black. The tensions and contradictions of Stincer, Coy, and Craig, each of which dealt with restrictions on confrontation with witnesses testifying at trial or trial-related proceedings, provide the primary grist for Parts II and III of the article. Part IV discusses Wright, a hearsay case. Part V explores the implications of Justice Scalia's and the Court's interpretive approaches in this difficult area for constitutional criminal procedure.

Keywords: constitutional law, textualism, interpretivism, constitutional theory, originalism, Antonin Scalia, criminal procedure, confrontation, hearsay, child abuse trials, child sexual abuse, Sixth Amendment

JEL Classification: K10, K14

Suggested Citation

Wildenthal, Bryan H., The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism. Washington and Lee Law Review, Vol. 48, No. 4, p. 1323, 1991, Thomas Jefferson School of Law Research Paper No. 1028686, Available at SSRN:

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

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Suite 110
San Diego, CA 92101
United States

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