Rehnquist, Kennedy, Souter, Thomas, Breyer; Stevens (in part)
419
Moore v. Texas
535 U.S. 1044 (2002)
death penalty
Rehnquist, Thomas
Scalia dissented from the Court’s orders granting the applications of two petitioners for stay of execution of sentence of death, pending the Court's decision in Atkins v. Virginia, on the issue of whether the Eighth Amendment permitted the execution of the mentally retarded.
Scalia filed a statement noting that he agreed with the Court's decision not to transmit to Congress proposed amendments to Federal Rule of Criminal Procedure 26(b), which would have permitted witness testimony via two-way video transmission. Scalia believed this was of dubious constitutionality under the Confrontation Clause of the Sixth Amendment, according to the standard set forth in Maryland v. Craig. He wrote that he "cannot comprehend how one-way transmission (which Craig says does not ordinarily satisfy confrontation requirements) becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig...a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones."
