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The Champion

September-October 2018 , Page 26 

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Justice Scalia and the Interpretation of Criminal Statutes

By Paul Mogin

The late Justice Antonin Scalia once joked that he “should be the pinup of the criminal defense bar.”1 Although he described himself as “socially a law and order conservative,”2 on the bench he did indeed often come down on the side of the accused.

Scalia spoke for the Court in Crawford v. Washington3 when it overruled Ohio v. Roberts4 and reinvigorated the Confrontation Clause. He again spoke for the Court when it extended Crawford to expert witnesses in Melendez-Diaz v. Massachusetts.5 He also helped to establish, in the Apprendi line of cases, that the Sixth Amendment right to jury trial bars punishment exceeding the otherwise applicable statutory or guideline maximum, on the basis of facts found only by the court.6 

Scalia wrote majority opinions holding that a “search” under the Fourth Amendment occurs when a thermal-imaging device is aimed at a home to ascertain the relative heat of rooms inside,7 or when an electronic tracking device is attached to the undercarriage of a vehicle a

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