Military Commissions in 2009 and Hearsay Evidence (Still?!)

I am a fairly diligent reader of (online) newspapers. But I confess that the enactment of the Military Commissions Act of 2009 a few days ago escaped my attention. Did it escape yours?

Is it true that "reliable hearsay" may still routinely be admitted in Military Commission adjudicative proceedings? Cf. Warren Richey, "Obama endorses military commissions for Guantánamo detainees," Christian Science Monitor (Oct. 26, 2009). This same article states, "The new law excludes statements obtained through torture or through cruel, inhuman, or degrading treatment. But Congress empowered the secretary of Defense to enact rules permitting admission of coerced statements and hearsay evidence. These are departures from trial rights routinely provided to US service members in courts-martial."

It's possible that the Obama administration succumbed to the probable myth that a rational ("reasonable"? "average"?) trier of fact knows how to sort hearsay wheat from hearsay chaff. See also this post.

I will have to do some research on the new Act. I am not optimistic about what I will find. When people acquire the reins of power, they tend to become more impressed with the relative priority of security over liberty and justice or -- if you want me to be less bombastic and dramatic -- over the importance of avoiding false positives. Am I being unduly cynical? I honestly don't think so.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

An invitation to collaborative, creative, and comprehensive Evidence scholarship

I am pleased to report that Joannes Vinarao-Pilapil and I have finished a first draft -- a rough draft -- of Spindle Law's evidence module.

If you are a faithful reader of this blog, you know that the evidence module is an online hybrid of

(i) an outline,

(ii) a treatise, and

(iii) an evolving and collaborative account

of the law of evidence.

For further details, see this early post.

But note that Spindle Law now accommodates state law and that the evidence module will eventually cover state evidence rules and principles as well as the the Federal Rules of Evidence. Eventually -- and perhaps before too long -- there will be variants of the evidence module that will examine the law of evidence and proof in countries other than than the U.S.

Now we -- Joannes and I -- need and want your help. We need and want the help of legal professionals -- lawyers, law students, law professors, and judges.

The evidence module, by design, is not a static thing. The evidence module is, by design, incomplete. (Furthermore: the evidence module -- by design -- will never be complete.)

The evidence module awaits your contributions, your comments, your arguments, your research, your thoughts, your suggestions.

The premise of Spindle Law -- or one key premise of Spindle Law -- is that there are legal professionals out there who hunger to do legal scholarship largely (if not only) because they enjoy scholarship, particularly collaborative scholarship.

It is also very probably the case that you can make something of a name for yourself by contributing to the evidence module and that you can get to know other legal professionals around the country and around the world.

Another key premise of Spindle Law and the evidence module is that collaborative scholarship -- the joint work of many scholars and budding scholars -- can sometimes (as in this instance) produce legal scholarship that is finer, richer, and deeper than anything that any single legal scholar can manage to produce.

So I invite you to join this great experiment. To take part, send an e-mail to info@spindleresearch.com and get a password, and start adding to this evolving thing that we (modestly) call an "evidence module."

Many thanks for considering this invitation.

An important postscript: Joannes Vinarao-Pilapil is my first and primary collaborator in this enterprise. Joannes is an eminent Philippine lawyer and legal scholar. She has studied law in the United States as well as in the Philippines.

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The dynamic evidence page

Browser-based evidence marshaling: MarshalPlan in your browser

A Very Nice Review

Professor Jonathan Doak of Nottingham Law School (UK) has some nice things to say about the recently-published Festschrift for Professor Mirjan Damaska of Yale Law School. In the conclusion of his review of CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT: ESSAYS IN HONOUR OF MIRJAN DAMASKA (J. Jackson, M. Langer & P. Tillers, eds., Hart Publishing, 2008), Professor Doak states (13 International Journal of Evidence and Proof 263, 266 (2009)):

Jackson, Langer and Tillers have accomplished a considerable feat in putting together a set of original and insightful papers that tease out many of the core themes of Damaska's work. Certainly, both the breadth and depth of the papers contained in this volume are a fitting tribute to him. Yet the end-product is also an excellent piece of scholarship in its own right; here we have an enlightening and engaging set of papers which will be of interest to criminal and evidence lawyers, as well as those with more general comparative interests.

I blush. But not too much. That's because Professors Jackson and Langer, the stellar essayists who contributed to the book, and, of course, Professor Damaska are the ones who deserve 99.99% of the credit for the Festschrift. My role was primarily that of cheerleader and agitator.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Browser-based evidence marshaling: MarshalPlan in your browser

A Whirlwind of Dumb-Headed Petty Corruption in New Jersey

The story of how Solomon Dwek managed to ensnare 44 or 45 persons -- that's the count so far -- into committing corrupt acts on recorded sound & video is interesting in two different ways. See Ted Sherman, "An FBI informant's whirlwind corruption tour," The Star-Ledger (Oct. 24, 2009). The story is interesting because of (i) the gullibility of the miscreants -- the apparent inability of the miscreants to see or imagine that Dwek was a "cooperating witness" -- and (ii) the small amounts of money for which the miscreants were willing to risk their liberty, their careers, and their reputations. The story of Dwek is truly a story of dumb-headed petty graft.

Dwek's own criminal misdeeds, however, involved rather large amounts of money: Dwek is a brazen scoundrel with wide financial horizons.

Perhaps the most astonishing part of the Dwek story is how he managed to deposit two bad checks for $25 million at a bank drive-though window.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Browser-based evidence marshaling: MarshalPlan in your browser