Friday, September 11, 2009

Russian-American Histories

The other day I turned once again to Rock v. Arkansas, 483 U.S. 44 (1987), and United States v. Scheffer, 523 U.S. 303 (1998), in my Evidence class. This made me think once again of what used to be called "Russian history." Official Soviet historians were renowned for airbrushing inconvenient facts, people, and photos out of their histories. You know what? The Supreme Court of the United States sometimes does the very same thing. In Scheffer the Court said it was clear that the holding in Rock rested entirely on the 5th Amendment Privilege against Self-Incrimination and the implied right of a criminal defendant to testify in his or her own defense in a criminal case. But you know what? Before Scheffer was decided, many astute observers thought that the constitutional foundations and potential reach of Rock were broader than that; after all, in Rock the Court mentioned and seemed to rely on, not only on the 5th privilege, but also on the Compulsory Process Clause and the Due Process-rooted right of a criminal defendant to present a defense and the implied right of the defendant to present relevant and material exculpatory evidence.

So you see: Russian or Soviet history is sometimes quite American. (I imagine: Judge: "Clerk: airbrush, please!")


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