Friday, May 15, 2009

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.


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Wednesday, May 13, 2009

Piety and Hypocrisy about the Prospective Supreme Court Nominee

There will be much talk about the alleged qualifications and brilliance of the Supreme Court nominee, whoever she is. (There is little doubt it will be a she.)

Let's stop this folderol.

President Obama will pick a nominee who he thinks will embrace the attitude toward constitutional interpretation that he happens to favor and who he thinks will be acceptable to major interest groups in the Democratic party (my guess: left-leaning women, left-leaning Hispanics, in that order) without unduly raising the hackles of political moderates.

My own hope is that President Obama picks a person from the lower economic orders who has not forgotten what life is like in the lower economic orders.

This is why, if I had a vote, I would cast my vote for

Sonia Sotomayor

and against

Elana Kagan

We don't need another rich white male on the Court. We also don't need another rich woman (of any color) on the Court. To wit: we need a woman who has known poverty and who remembers what it's like to be poor.

  • If Elana Kagan hails from the lower economic orders, I will reconsider my position. But since identity politics is in play, I would still favor Sotomayor; Sotmayor has a life story that has to warm the cockles of any immigrant's heart. (I confess to being an immigrant -- but not one with a presently-fashionable national origin.)
  • As far as I'm concerned, Dawn Johnsen is out because she's a zealot. Zealots of any stripe make me uncomfortable. We don't need a left wing equivalent of Dick Cheney's former counsel David Addington on the Court.

    The hooker in this scenario, methinks, is that President Obama -- for all of his undeniable talents -- does not seem to have a clear constitutional philosophy. (Given that he has taught constitutional law, this is a bit odd.)


    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Perhaps an Interesting Hearsay Problem in the Astor Case

    This murky statement of facts in the "Astor trial" [the Marshall trial, actually] suggests that an interesting hearsay problem lurks.

    According to the aforesaid murky statement of facts the trial judge excluded the offered evidence as irrelevant. It is rather unusual for evidence to be excluded solely because of irrelevance. One observer (Tillers) wonders if the trial judge was trying to avoid a difficult hearsay problem.


    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law