I can sympathize with your point of view, but I agree with Scalia here. I could be wrong , but I think the point that Scalia is making is that a statement of fact by an eyewitness must be subject to cross examination in a court of law, if the confrontation clause is to have any meaning within that law. The circumstances immediately surrounding that statement is what is important here. If a statement is made using proper investigative techniques, then those investigating officers, or more correctly, their interpretation, methodology, etc., can be cross examined. Without that, you have a statement that is virtually unchallenged, and that is a big problem, considering we are talking about a court of law.
I have no problem with the statement being used as a "police tool." which Scalia also makes clear in his remarks when he saidt: "his statement had little value except to ensure the arrest and eventual prosecution of Richard Bryant."
Eyewitness testimony can be notoriously incorrect, even when the witness has the best of intentions, and I see no reason why we should somehow relegate such statements as these to be inviolate with regard to objective truth.
That said, I'm a little surprised that Roberts and Alito chose a different path.
A statement of fact implies that the person stating the “fact” is telling the absolute, unequivocal truth. Which is rare. Not because they are deliberately,telling a lie. But because if a violent confrontation happens and you are frightened what is remembered is not what really happened.
I am not making excuses for criminals. But people make mistakes. By the time cases get to trial it might be years after the crime was committed. The more publicity, the more they don’t want to fail in remembering their initial statement
And don’t forget political pressure.
The poor theater of Duke U anyone?
Q: Who shot you. A: Homie Doggie who lives on 3rd street. *croak*
Common sense would indicate that if the only evidence of a crime were the statements of a victim who later expired, then there'd exist the possibility of reasonable doubt since it would be too easy to manufacturer or manipulate the statement in the absence of any other evidence. Common sense, however, is lacking in the criminal justice system as it stands today.
The hypothetical law school arguments used as a tool to educate students are now the foundation of twisted ruling after twisted ruling. If, at the end of the investigation, all you have is the statement that x did y, and nothing to back it up, then yes, you should be at a dead end. But how can it be considered in any form or fashion a 'justice' system if the victim's own words are excluded from the proceedings? To limit it to simply an investigative tool to direct the investigation defies the humanity that should be within the legal system. Justice is supposed to be blind, not heartless, and certainly still has ears to hear the words of a victim.
The possibility of manipulation and misrepresentation is mitigated by the foundation of other evidence. If police show up soon after at Homie Doggie's house and find gunpowder residue on the hands of Homie Doggie, he'd better have a receipt for his visit to the gun range where he just fired his arms. and it would be a good idea for the rangemaster to also be available to testify to the alibi.
I wholeheartedly disagree that a victim's representation in court ends with a successful murder. I think the original court was right in permitting the testimony, and don't think that defendant's rights were violated in being unable to cross examine the victim's testimony. I do not extend that to the officers themselves; absent a recording, their recollection can be called into question.