Professor David Sklansky on the Confrontation Clause

In an interesting but excessively long article, "Hearsay's Last Hurrah," 2009 Supreme Court Review 1, Professor David Sklansky makes the important point that the decoupling of hearsay law and the Confrontation Right by Crawford v. Washington, 541 U.S. 36 (2004), has impeded or threatens to impede the development of an interpretation of the Confrontation Clause as a guarantee of the right of a criminal defendant to challenge adverse evidence. I agree.

But I am not so sure that the hearsay rule deserves all the scorn that Professor Sklansky heaps upon it. I keep thinking of prisoners in Guantanamo who may be held there on the strength of an absent U.S. soldier's statement that some village elder in Afghanistan told the soldier, through an absent interpreter, that some member of the village had brought the detainee, a goatherd, to the elder after the village member heard, he said, the goatherd say, "I have killed Americans in this holy war." Confrontation aside, is there reason to think that such evidence is likely to be so unreliable that not even a military commission should consider it?

But to give Sklansky his due, he does seem to think that a hearsay rule that works largely as a rule of preference makes some sense. But suppose the village elder, the translator, the member of the village, and the goatherd are now all dead -- as a result of the war in Afghanistan.

But perhaps Sklansky would approach the goatherd problem by analyzing whether the Guantanamo detainee has an adequate opportunity to challenge the evidence against him. I'm not sure how Sklansky would attack the goatherd problem. Perhaps I will re-read the article in an attempt to find out. (I only skimmed his article and perhaps he addresses my question.)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Equality under the AALS and Professor George Fletcher

Today I found an e-mail message in my mailbox. The message contains a memo that purports to have been written by a committee of the Association of American Law Schools. Part of this memo states:

June 4, 2010

MEMORANDUM

To: Faculty of AALS Member Schools

From: Planning Committee for 2011 Workshop on Women Rethinking Equality:

Kathryn Abrams, University of California, Berkeley Law, Chair
Serena Mayeri, University of Pennsylvania Law School
Elizabeth Nowicki, Tulane University Law School
Angela Onwuachi-Willig, University of Iowa College of Law
Lisa R. Pruitt, University of California, Davis, School of Law
Stephanie M. Wildman, Santa Clara University School of Law

Subject: Call for Presentations, Papers and Posters

We are seeking proposals for presentations, papers and posters for the 2011 Mid-Year Meeting Workshop on Women Rethinking Equality. ... We welcome participation by all AALS members-and particularly all women-regardless of whether their scholarship focuses on gender.

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I have just finished reading Professor George Fletcher's novel The Bond (2009). Although I found the novel's accounts of Socratic classroom discussions (in a fictitious law school that closely resembles Columbia University's law school) somewhat tedious (rather than exhilarating), perhaps Fletcher's novel influenced my reaction to the memo supposedly written by the AALS Planning Committee. (The hero of Fletcher's novel -- a male law professor -- runs into trouble with some feminists.)

Have you read The Bond? If so, what do you think of it?

Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University, apparently found the Fletcher's accounts of law school classroom discussions more invigorating than I did. He said (in a blurb on the back cover of the book), "This novel provides a unique insight into the workings of the legal mind and the inner life of law schools." Professor Ackerman's enthusiasm for the novel is, I think, more representative than is my ambivalence about it.

I would not say that Professor Fletcher's book is a barn-burner. But I guess it was, in my case, a page-turner: I lost a night's sleep because I did not want to put the book down. But, then, the hero of the book is a law professor and I'm a law professor. So....(?)

I should probably be working on a treatise or article instead of wasting my time blogging about topics such as AALS committees, faculty politics, and political correctness in the academy. I don't think I have anything new to add about these provocative topics.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

New Evidence Scholarship in China

Nanning Zhang and Douglas Walton, "Recent trends in evidence law in China and the new evidence scholarship," 9 Law, Probability and Risk 103-129 (2010)



Abstract 

This paper reviews the history and status quo of evidence theory in China and analyses its gradual shift from a pluralistic evidence law to a model informed by scientific evidence scholarship. It compares fundamental distinctions on evidence and judicial proof between the contemporary evidence theories of China and those in Anglo-American law. The paper reveals that no matter what the evidence system is, the common method of discovering truth plays an important role in the modernization of evidence theory as such theory moves towards a comprehensive evidence scholarship. By shedding light on the theoretical framework of a comprehensive evidence scholarship and the increasing use of scientific ideas in evidence law, our theoretical perspective shows that the framework of a comprehensive evidence scholarship consists of four interdependent and overlapping components.

Keywords: Chinese evidence law; comprehensive evidence scholarship; theoretical framework of evidence; free evaluation of evidence of judicial proof
___________
[Footnote by authors:] The reader should note that the concept of ‘new evidence scholarship’ used in this paper is different from the expression ‘new evidence scholarship’ coined by Richard O. Lempert in his article ‘The New Evidence Scholarship: Analyzing the Process of Proof’ (1986) 66 Boston University Law Review 439.



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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

University of Sydney Evidence Conference

21st Century Challenges in Evidence Law: International and Comparative Perspectives

2-day Workshop, 24-25 September 2010

On 24-25 September 2010, Sydney Law School and the Ross Parsons Centre of Commercial, Corporate and Taxation Law will host a 2-day workshop entitled 21st Century Challenges in Evidence Law: International and Comparative Perspectives, at the New Law Building at the main Camperdown campus of the University of Sydney.

The themes of the workshop are

Conceptualising Proof (including Professor Peter Tillers, Cardozo School of Law);
Technological change and Evidence law (chaired by Stephen Odgers SC, Adjunct Professor, University of Sydney);
Comparative and Human Rights Perspectives (including Professor Ian Dennis, University College London); and,
Expert Evidence and Juridical Knowledge (including Professor Gary Edmond, University of New South Wales and Professor Simon Cole, University of California, Irvine).

Expressions of interest are sought in relation to these and other 21st Century Challenges in Evidence Law (eg proving sexual assault; victim’s rights; vulnerable witnesses). Abstracts are required by 11 July 2010.

A selection of papers arising out of the workshop will be published in a special edition of Sydney Law Review (a refereed A* journal) in 2012. Submissions of papers will be required by 1 April 2011 to allow time for refereeing, revisions and the joining of issues between related articles.

Attendance is free, and the conference dinner (Fri 24th) will be subsidised. Please direct any questions, and your abstracts, to the Convenors, Miiko Kumar (miiko.kumar@sydney.edu.au, +61 2 9351 0261) or David Hamer (david.hamer@sydney.edu.au, +61 2 9351 0242). Abstracts are required by 11 July 2010.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Crime, Punishment, and Stupidity in New Jersey

"Jailing Leona Beldini wasn't easy, judge's scolding was minimal," Jersey Journal (June 17, 2010):

"As you from crimes would pardon'd be, Let your indulgence set me free."
Shakespeare, The Tempest
Brian Neary, the Hoboken criminal defense lawyer known for courtroom antics and merciless cross-examinations, tried a different approach the other day to keep his convicted client out of jail. He quoted Shakespeare.
It didn't work.
Former Jersey City deputy mayor Leona Beldini got three years.
Of course, the sentence could have been worse, so maybe his recital did move federal Judge Jose Linares.
Linares, clearly uncomfortable about jailing a 75-year-old with a heart condition, imposed a sentence below federal guidelines that called for 41 months and also spared her the usual harsh criticisms some judges heap on convicted clients.
The worst he said was "any reasonable person" should have seen Solomon Dwek, the corrupt government witness who brought her down, "was a crook." He was right.
If stupidity were a capital crime, the politicians nailed by Dwek would all have been hanged by now.
But Neary does us a favor by citing these lines from Shakespeare because their meaning - from a soliloquy by Prospero, a wronged but forgiving man - has been debated for centuries as among the Bard's most ambiguous.
As ambiguous, really, as this corruption sting that brought Beldini to prison gates for the crime of playing a role - an ambiguous one - in obtaining $20,000 in contributions to the campaign of a mayor, Jerramiah Healy, who was already awash in $3 million in campaign funds and didn't need it. A mayor who was never charged.
[snip, snip]
After he ordered Beldini jailed, Linares, who has said he hates sentencings, walked through a crowd in the lobby on his way to lunch. Someone called out, "How are you feeling, judge?"
"Not good," said Linares. Ambiguously.

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Stanley Bond: Potent Evidence of the Value of One Type of Criminal Punishment

When I was a law student -- I was a law student or the equivalent (e.g., "visiting scholar") for many years -- I questioned many things (although I was and remain politically inactive). I even questioned the value of criminal punishment.

In 1971-1972 I was studying at Harvard Law School for my LL.M. degree. Sometime in the fall of 1971 I ran into Kent Nelson. I had known him at Yale College. When I saw him in 1971, he was running an educational program for prisoners at the Massachusetts penitentiary at Walpole. I agreed to give a talk there -- on Christmas Eve. I gave the talk there to a small group of prisoners. I felt very sorry for the people there; although a few of them gave me a hard time, they seemed to be ordinary human beings and I didn't understand why they should be in prison.

One of the people there who gave me a "hard time" was Stanley Bond. Stanley Bond was a very bright fellow. He was also one of a group of people -- a group that included Susan Saxe, Katherine Ann Power, and William Gilday -- who planned a bank robbery that ended in the death of Walter A. Schroeder, a guard at the bank. (The shooter, William Gilday, was one of the inmates I spoke to and with on December 24, 1971. Power and Saxe were political radicals who were apprehended only years later.)

I left the penitentiary at Walpole that Christmas Eve feeling awfully sorry for the inmates there and being fairly convinced that the society that kept them there was a cruel one. However, six months later -- in June 1972 -- Bond killed himself when the bomb he was building prematurely exploded. This incident made me reconsider my doubts that criminal punishment does any good.

In the fall of 1972 I took my first tenure-track teaching job. I taught criminal law.

The good citizens of Walpole later persuaded the Commonwealth of Massachusetts to remove "Walpole" from the title of the penitentiary. The place is now called "MCI-Cedar Junction."

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Grade & Honors Inflation

At one American academic institution (I suspect there are many, many others) the question arose whether the honor summa cum laude should be awarded to "only" two graduating students or, instead, to a larger number of students (e.g., five or seven students).

What do you think should happen?

Is the appropriate solution to abolish the summa cum laude honor and replace it with "magna almost summa" or "very, very magna"? (As I understand it, the possibility of limiting the award of the summa to one person was not considered.)

Question: Is academic "honesty" at issue here? To wit: Is it dishonest or deceptive to award a summa to more than one graduating student?

Do only finicky academics or grinches care about matters such as grade inflation and honors creep? (N.B. In defense[?] of the professoriate: Most university professors do not care [or even think] much about the issue of grade inflation or similar issues.)

Postscript (or whatever): I think grading is the worst part of the job of teaching. This is in part because if a mandatory grading curve applies, the decision to award a high grade is a zero-sum choice. It is also because grades have consequences, serious consequences.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Your Opinion of Scott Turow's Innocent?

Have you read Scott Turow's new book Innocent? If so, what do you think?

I will not review the book myself. However, I do want to say that the "cross-examination episode" that perhaps forms the heart of the book is masterfully done.

But what about the non-legal aspects of the book? Do you think it's a good thriller (if thriller it is) or psychodrama (if psychodrama it is)? Do you think the new book follows an old formula (too much)? Yes? No?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Obama's Order

The NYTimes reports today that President Obama said:

We’ve also ordered BP to pay economic injury claims, and we will make sure they pay every single dime owed to the people along the Gulf Coast.

Is it impertinent to ask whether President Obama has the authority to order BP "to pay economic injury claims"? Is it possible that only the judiciary has the authority to issue such an order? (I will have to brush up on Constitutional Law. [Didn't President Obama claim that he taught Constitutional Law at Chicago?])

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Another (Probable) International Workshop (Conference)

Cardozo School of Law and the Technical University of Munich are planning (hoping) to hold an international workshop or conference in February of 2011.

Theme: On Proportionality and Justice – Quantitative Aspects of Justice and Fairness

Venue: Cardozo School of Law, Yeshiva University, New York, New York 10003

The forthcoming workshop is the successor to the workshop held in Munich on January 6 & 7, 2010. (The January 2010 workshop was sponsored by TUM and Ludwig-Maximilians-Universität München [University of Munich].)

For details about the (forthcoming) 2011 workshop or conference please get in touch with me or with

Dr. dr. (UBL) Rainhard Z. ("Zvi") Bengez
Department of Philosophy of Science
Technology, and Engineering
Carl von Linde Academy
Technische Universitaet Muenchen
Arcisstrasse 21
D-80333 Muenchen
Germany
Telephone: +49.(0)89.289.25367
Fax: +49.(0)89.289.25362
E-mail: bengez@cvl-a.tum.de

More details about the 2011 workshop -- this interdisciplinary workshop -- will be posted soon. We hope to see you there!

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

International Evidence Conference

The University of Sydney (Australia) will hold an international evidence conference on September 24 & 25, 2010.

The conference's theme: 21st Century Challenges in Evidence Law: International and Comparative Perspectives

For details contact

David Hamer
Associate Professor (Evidence and Proof)
Faculty of Law
The University of Sydney
Rm No 516, New Law Building, The University of Sydney NSW 2006
T +61 2 9351 0242 | F +61 2 9351 0200
david.hamer@sydney.edu.au

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Law of Large Numbers

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Slate on Elizabeth Loftus, Memory & the Myth of Repressed & Recovered Memory

Slate is publishing a fascinating series of articles on Professor Elizabeth Loftus and her studies of memory and repressed and recovered memory. The series starts here. If you claim to be a well-educated person, you should read these articles.

But the articles overdo the praise for Loftus: she cannot be given sole credit for debunking "repressed and recovered memory." (In any event, U.S. States and jurisdictions have not yet reached a consensus that "repressed and recovered memory" is junk science. Social psychoanalysis suggests that the political and social pressures for the opposite conclusion remain strong -- too strong. For example, in Massachusetts the careers of a number of prominent politicians were partially built on the zealous pursuit of some cases based substantially on "repressed and recovered memories.")

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

A Great Judge: The Hon. Jack B. Weinstein

Today's online New York Times has an article about Judge Jack B. Weinstein. The article describes (how accurately or inaccurately, I do not know) Judge Weinstein's efforts to avoid imposing a harsh sentence on a man accused and convicted of downloading pornographic images of children; the article describes Judge Weinstein's efforts to avoid the efforts of his superiors on the Second Circuit Court of Appeals to force Weinstein to impose the harsh sentence that Weinstein is apparently so determined not to impose.

As the article states, this is "quintessential Weinstein." His former colleague John S. Martin reportedly said, "Jack is somebody who will step out and do what he thinks is right and take his chances of being overturned by an appeals court. ... He sees the injustice in these things and he tries to do something about it."

I would not have had the courage to do what Judge Weinstein routinely does. This is one reason why I decided long ago I never wanted to be a judge.

Judge Weinstein is one of the great judges of the 20th and 21st centuries. This is not just because this 88 year-old man voluntarily carries a full caseload, continues to author many speeches and articles, and has an original and powerful perspective on evidentiary processes, including a willingness to consider the bearing of formal statistical evidence and probabilistic argument in forensic proof. Judge Weinstein is a great judge also because he has never lost sight of the idea that law is or ought to be about justice and that law ought to be humane.

Now it is true that many injustices have been committed in the name of justice. But it is also true that many crimes have been committed in the name of law bereft of justice. (Think, e.g., of Nazi or Stalinist judges.) This is an instance in which I have to say that I know a just man when a see one: in Weinstein I see a just, humane, and wise man and judge.

It is almost literally a crime that our society could not bring itself to make Judge Jack B. Weinstein a member of our society's supposedly most-elevated legal institution, the Supreme Court of the United States. Instead we generally (but, thankfully, not always) elevate technocrats and bureaucrats to that high bench. May God forgive us.

N.B. I do not know if Pres. Obama's nominees have empathy. However, I do know that "empathy" is not a dirty word.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

But This Book May Be Interesting

See Lorraine Daston & Peter Galison, Objectivity (2007).

Laorraine Daston has written some fascinating books.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Do Not Read This Book

I have vowed not to read any book with the subtitle "A Life."

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Book Review

Bernard Robertson, "Comparative Criminal Process", [2010] New Zealand Law Journal 122 (book review):

[Mirjan Damaska's] career is celebrated in a collection of essays edited by John Jackson, Maximo Langer and Peter Tillers Crime, Procedure and Evidence in a Comparative and International Context (Hart Publishing, 2008).

Like all such books of essays, the book covers a range of subject matter, not all of which may be of interest to all readers. It is, however, quite common for evidence to be taught by academics also interested in criminal law and procedure and even criminal justice issues, since the boundaries between these subjects can be porous. All such academics will want access to this book, at least in their libraries.

[snip, snip]

It can readily be seen, then, that this book contains much that touches on current debates in New Zealand and in particular will be of interest to those engaged in reviewing the performance of the Evidence Act 2006. That Act is causing fundamental questions to do with the meaning of relevance and prejudice to appear in court in a way that they did not when these principles were unstated. Each of the papers also serves as a good signpost to other writing in the same area. Honours and Masters students studying evidence or criminal procedure should be reading the relevant papers in this book. Likewise, advanced level comparative law students should be contemplating whether comparative method is useful in these areas of law, rather than just in the traditional subjects of contract and property law.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Scott Turow on the Hazards of Improved Forensic Technology: Or: a Reminder that DNA May Be Gold but It Ain't Platinum

In a NYTimes podcast Scott Turow discusses his new novel Innocent, which is a sequel to his novel Presumed Innocent. Almost eight minutes into the podcast Turow comments on the changes in the handling of evidence in criminal cases, the foremost of which, he says, is the use of DNA evidence. Turow says, "[H]ad Rusty Sabich [the "hero" of Presumed Innocent] been tried a couple of years later than 1986 ..., his goose would have been cooked because of DNA because of course it is Rusty's DNA that was found in the victim, Carolyn Polhemus."

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The dynamic evidence page

What Genius Is at Harvard Law School

"[Professor Charles Fried] also credits her [Elana Kagan] with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. 'It was an absolute stroke of genius,' Mr. Fried said." (Wall Street Journal (May 12, 2010))

And I always thought that one had to write a great article or a good book. Silly me.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Proof as Temporal Process

It is important to think of the law of evidence as part of a temporal process ("evidentiary processes associated with litigation"), and not just as a body of rules that regulate the admissibility of evidence at trial and a few other questions that arise at trial. Litigators, of course, know that the law of evidence is part of a temporal process. Many law teachers have also acknowledged or affirmed that the law of evidence is part of a process. However, most courses in the law of evidence still treat the law of evidence mainly as a body of rules about the admissibility of evidence and about the standards the trier of fact should use to evaluate the evidence that is presented to it at trial. Of course, bar exams, which view the law of evidence in traditional academic terms, make it hard for teachers of the law of evidence to adopt a radically different perspective: Law students rightly expect to learn the legal rules they need to know to pass the bar exam.

It is also important to view the law of evidence from the perspective of epistemology. But that's another (important) matter.

It is also important to view the law of evidence from the perspective of social values. But that is, again, another (important) matter.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.