A Failure of Imagination and Intellectual Rigor: Hearsay before the Rejuvenated Commissions

The workings of civil and criminal justice generally depend less on high-level legal abstractions than on nitty-gritty rules that regulate proceedings such as adjudication. This is one hard lesson of the military commissions experiment; many observers belatedly discovered that a key variable in the workings of this system was the treatment of hearsay.

That lesson has not been fully learned, however. The New York Times reports that the Obama administration plans to keep the military commission system. The Obama administration also apparently recognizes that the treatment of hearsay is a key ingredient in this commission system. However, lamentably, the best that the Obama administration can do, apparently, is to shift the burden on the question of the admissibility of hearsay:

Hearsay, for example, is generally not allowed in American courts. In Mr. Bush’s military commission system, it was allowed unless the defendant could prove it was unreliable. Mr. Obama’s plan would shift the burden, allowing its use only if the prosecution can prove its reliability. (Id.)

This solution appears "liberal," I suppose. However, it does nothing to resolve the hard questions -- such as (i) How many resources and how much effort must the government expend to locate and produce "unavailable" hearsay declarants and have them testify at a commission proceedings? ["Billions for Guantanamo, but not a (metaphorical) farthing for the defense?"], (ii) To what extent should a detainee have the right to inquire into the character, motivations, etc., of an absent hearsay declarant?, (iii) Precisely what sorts of security considerations justify the government's refusal to produce a witness or provide evidence about an absent hearsay declarant?, and (iv) How are commission judges to assess the reliability, trustworthiness, or credibility of an absent hearsay declarant and any incriminating statement such a declarant allegedly made and to what extent are military commission judges capable of making such a determination given whatever evidence is available to them (if not to detainees or counsel for detainees)?

N.B. It has been noted that one of the great weaknesses of the Supreme Court of the United States as presently constituted is that only one of the Justices has any significant experience with trials and pre-trial investigation. Perhaps the same weakness afflicts President Obama's legal advisers. Rules of evidence are just not very "sexy," it seems. If that's what the leaders of our society think, they have learned nothing from legal realism.

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