HOW TO MAKE A WITNESS DISAPPEAR LEGALLY: THE SUPREME COURT’S IMPROPER DECISION IN CRAWFORD V. WASHINGTON

Joshua R. Van Laan, Thomas M Cooley Law School

Abstract

In Crawford v. Washington, the Supreme Court allowed Michael Crawford to go free after the premeditated and vicious stabbing of Richard Lee. Michael invoked the marital privilege in order to prevent Sylvia Crawford, his wife, from testifying, which would possibly refute his claim of self-defense. When the prosecution admitted her testimony by properly following the rules of evidence, Michael appealed claiming that his right to confront Sylvia had been violated. The U.S. Supreme Court held that, because Sylvia was an "unavailable" witness due to privilege, Michael should have been given an opportunity for prior cross-examination. Accordingly, he was released. This article focuses on Justice Scalia's improper opinion for the majority, his failure to remedy that opinion, and the conflict between this precedential decision and the rules of evidence.