The title of this Essay comes from a case decided in the Massachusetts Supreme Judicial Court that was appealed to the United States Supreme Court. In Snyder v. Massachusetts, Massachusetts’ highest court held that preventing a criminal defendant from traveling with the jury to view the scene of a crime did not violate the Fourteenth Amendment’s Due Process Clause.
In an opinion authored by Justice Cardozo, the Supreme Court affirmed the Massachusetts Supreme Judicial Court’s decision, holding that a jury could view the scene of a crime outside the presence of the defendant without violating a defendant’s right to confront his accusers and be present at his trial. Justice Cardozo noted that “[t]o transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history” under the English common law. He pointed out that the purpose of the defendant’s presence during the trial would not necessarily support a defendant’s presence at a jury view of the scene. Thus, the Court rejected the argument that the concept of “fairness” under the Due Process Clause, which requires a defendant’s presence at trial, would also require a defendant’s presence at a view. . . .
For more information about Judge Barkett’s Donahue Lecture (which served as the basis for this article) please click here.