28
Opinion of Stevens, J.
join his dissenting opinion because it is internally inconsistent and its passion is misdirected.
II
If the Court's tolerance of the trial judge's Sixth Amendment error in this case were, as Justice Scalia's dissent suggests, post, at 30, as serious as malpractice on "the spinal column of American democracy," surely the error would require reversal of the conviction regardless of whether defense counsel made a timely objection. Yet the dissent states that reversal is appropriate only when a defendant made a timely objection to the deprivation. Post, at 35 (opinion concurring in part and dissenting in part). It is for that reason that I find tension between the force of Justice Scalia's eloquent rhetoric and the far narrower rule that he actually espouses.
There is even more tension between that rhetoric and his perception of the proper role of the jury in cases that are far more controversial than the prosecution of white-collar crimes. The history that he recounts provides powerful support for my view that this Court has not been properly sensitive to the importance of protecting the right to have a jury resolve critical issues of fact when there is a special danger that elected judges may listen to the voices of voters rather than witnesses. A First Amendment case and a capital case will illustrate my point.
In Pope, we found constitutional error in the conviction of two attendants in an adult bookstore because the trial court had instructed the jury to answer the question whether certain magazines lacked "serious literary, artistic, political, or scientific value" by applying the community standards that prevailed in Illinois. 481 U. S., at 500-501. As the history of many of our now-valued works of art demonstrates, this error would have permitted the jury to resolve the issue against the defendants based on their appraisal of the views of the majority of Illinois' citizens despite the fact that under
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