U.S. Law Week: Why the Criminal Defense Bar Will Miss Scalia

U.S. Law Week: Why the Criminal Defense Bar Will Miss Scalia by Lance J. Rogers:

U.S. Supreme Court Justice Antonin Scalia was famous for his acid rhetoric, unapologetic defense of the death penalty and fierce opposition to progressive causes like gay marriage, but he should also be remembered as a stout champion of some core constitutional principles that are near and dear to the heart of the criminal defense bar, according to court watchers who spoke with Bloomberg BNA.

Scalia’s strict textual interpretation of the U.S. Constitution left him siding with—and often leading—the liberal wing of the court when it came to securing the right to be tried by a jury, to confront and cross-examine prosecution witnesses and to be free of unreasonable searches and seizures.

. . .

“I’m gonna miss him,” criminal practitioner John Wesley Hall of Little Rock, Ark., told Bloomberg BNA.

“To me, he was the conscience of the court when it came to” the Fourth Amendment and Sixth Amendment, Hall said.

. . .

Both Hall and Levenson said that one of Scalia’s biggest contributions to Fourth Amendment jurisprudence was his revival of the 20th century concept of trespass.
For years it was assumed that the reasonable-expectation-of-privacy test from Katz v. United States, 389 U.S. 347 (1967), was the only standard for determining whether there was a Fourth Amendment search, and that “trespass theory” was no longer relevant, Hall said.

“But trespass was never dead,” Hall quipped, “it was just sleeping.”