I am struggling to understand J Easterbrook's opinion in McGee. Perhaps this is because it is late at night. ...
Easterbrook's opinion seems to paint a picture in which everyone -- the prosecutor, the trial judge, and defense counsel -- fully understood and agreed that hearsay evidence would be admitted. My criticism here does not go to the question of whether the former Texas rule "hearsay evidence is no evidence" is wise or unwise. But I thought that [Judge] Easterbrook is a great believer in freedom of contract and I would have thought he would also be a great believer in the freedom, right, or whatnot of parties to waive or decide to forfeit the benefits of a "technical" rule of evidence such as the hearsay rule. Does he now think that the hearsay rule is so fundamental that a defense counsel should not waive or forfeit its protections in a criminal case? (The opinion emphasizes, not [the] Confrontation [Right], but the hearsay rule.) If Easterbrook thinks defense counsel should retain the option to waive or forfeit the benefits the HS rule, why is he so angry at defense counsel? This would not be the first time (or even a rare time) that defense counsel has appealed on a ground forfeited or waived at trial.
I am clearly missing something, yes?
Thursday, August 05, 2010
Professor Ann Murphy noted a recent opinion, authored by Judge Easterbrook, on the admission of hearsay against a criminal defendant after defense counsel's failure to object. See United States v. McGee, No. 07-CR-177 (July 20, 2010). According to Judge Easterbrook, everyone -- the prosecutor, defense counsel, and trial judge -- knew that the evidence in question was inadmissible hearsay -- but nevertheless suffered the evidence to come in. For this, Easterbrook casttigated both defense counsel and the prosecutor (and the trial judge). But I find Easterbrook's reasoning mystifying. Here is what I said on an Evidence list after I had scanned the opinion:
Sunday, August 01, 2010
Richard Posner, "Clinical and Theoretical Approaches to the Teaching of Evidence and Trial Advocacy," 21 Quinnipiac Law Review 731, 736 (2003):
[T]he conventional approach to teaching evidence illustrates what seems to me a common, though by no means universal, characteristic of legal education: that it tends to be at one and the same time both insufficiently practical and insufficiently theoretical. The traditional course in evidence manages, on the one hand, to avoid giving the student the flavor of the courtroom or the strategic dimension of evidence law and, on the other hand, to avoid giving the student the theoretical perspectives on evidence law, the sort of thing one finds, for example, in Peter Tillers' recent edited volume [The Dynamics of Judicial Proof: Computation, Logic, and Common Sense (Marilyn MacCrimmon & Peter Tillers ed. 2002)] The result is a course that many students find boring and useless.Of course, Judge Posner thinks that the right theoretical perspective on the law of evidence is given by economic theory. I think no evidence theory that fails to talk about the workings of inference is sufficient. But I give Judge Posner ample credit for pointing out the failings of conventional Evidence courses.