19 May Mom, Apple Pie, and the Hearsay Rule
19.05.09
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10 Comments
Anonymous senior official in the Obama administration, 2009:
[T]he hearsay rule is not one of those things that is rooted in American values.
The Sixth Amendment to the United States Constitution, 1791:
In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.
<a href=”http://www.law.cornell.edu/supct/html/02-9410.ZO.html“>Supreme Court</a> in 2004:
“not all hearsay implicates the Sixth Amendment’s core concerns.”
Well, to be fair, the Bill of Rights isn’t really rooted in American values, so much as it is rooted in English values. 😉
Kevin,
I too am dismayed that Obama is going to continue with the military commissions. But let’s keep in mind that they will be used for a small number of detainees – approximately twenty or so I believe. (My guess is that these are high value suspects who cannot readily be tried in federal court because of the Bush administration’s chicanery with interrogations).
As for your specific point about hearsay, my old evidence professor used to say if a lawyer can’t think of an exception to get around the hearsay rule, he/she is just not a good lawyer. Keep mind that US courts even used to allow hearsay evidence that “had an indicia of reliability” prior to the Supreme Court’s decision in Crawford v. Washington. In other words, it is unclear to me that these courts are fundamentally unfair just because they may permit some hearsay evidence.
I know that many in the human rights world are outraged but the fact of the matter is the Bush administration painted Obama into a very difficult corner, and many of the detainees will not be tried in federal court while others under a hopefully better-functioning military commission system.
I agree that hearsay is less of an issue than it is made out to be, partly because of the point that Milan (and probably every) evidence professor made, partly also because at the end of the day what matters is the probable value of the testimony.
Whether something is hearsay or not is relevant to its probable value, of course. But I don’t believe it is so paramount as to be unable to be given due weight in light of the general trustworthiness of the witness and the other evidence admitted.
Ben,
I suspect that the Obama person is seeking to make the distinction that the military judge made in Hamdan’s case as to what parts of the Constitution in addition to habeas apply in Gitmo. The military judge ignored the incorporation through the 14th Amendment process over the past 87 years since the Insular cases and put these detainees TODAY back in 1922.
See
No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008)
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I really encourage people to read Judge James Robertson’s opinion last summer where he denied the stay of Hamdan’s military commission. It is well worth pondering.
It is at Hamdan v. Gates, No. 04-CV-1519-JR, 2008 WL 2780911 (D.D.C. July 18, 2008), available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1519-108 (memorandum order denying Hamdan’s motion for a preliminary injunction) (link).
Best,
Ben
Milan,
I wish you had been the Obama spokesman! Having been an evidence professor, I agree with your point about the exceptions swallowing the rule. Had the official made that point — yes, hearsay will be allowed, but in practice nearly all hearsay comes in anyway — I would not have been so disturbed. But to say that the hearsay rule does not reflect American values is just silly…
Kevin, Good post! Sadly, it seems that the Obama people are becoming somewhat desperate when it comes to the remaining prisoners at GITMO. In response to a couple of the other comments (serious or not), I’d point out that the fact that U.S. evidence rules do allow lots of hearsay evidence to be admitted in criminal trials under the rubric of one or another of the many hearsay exceptions misses KJH’s point, which is well taken. The arrogantly dismissive tone of the statement about hearsay attributed to the “anonymous senior official.” in the NY Times article illustrates the disappointing and troubling (to me) process of rationalization that is taking place inside the Obama administration, which appears to see itself in a “no-win” situation when it comes to dealing with the remaining GITMO detainees. The administration’s very smart lawyers undoubtedly understand the difficulties (perhaps insurmountable) of successful prosecutions of most (all?) of the “high value” detainees in regular criminal trials in either U.S. federal court or regularly constituted military courts-martial, because the evidence of guilt has been spoiled by the stupefying incompetence and criminal acts of the Bush administration. But Obama would pay a heavy political price were he to admit this truth… Read more »
hearsay is that much more intolerable in this context because of the stain of “extreme interrogation methods” and the circumstances of apprehension and detention that GITMO detainees are subjected to. I don’t find the “hearsay always gets in somehow” argument persuasive in the context of the GITMO detainees given the totality of the circumstances. The very nature of their confinement and the judicial process itself just supports the analysis underpinning the rejection of the pre-crawford “indicia of reliability” scheme. The hearsay exceptions seem acceptable in light of the numerous other protections typically in place but not found as it relates to the GITMO detainees.
I don’t really know that I follow that argument, Rick. Hearsay, as I am sure you know, is traditionally concerned with the impossibility of the tribunal ascertaining the truth of a statement made by someone not present to swear to it, ie the point of the rule is really to prevent evidence being admitted not under oath and cross-exam. So someone saying to the Court: ‘James said he saw the accused kill him’ is inadmissible because James is not swearing to his statement and can’t be tested on it. The US seems to emphasize the latter, but the point is the same. Hearsay is, of course, the building-block of many prosecutions at the investigation stage. It was probably a significant part of the intelligence package supporting the arrest/continued detention of each of these men, especially as early interogations yielded information about other people. In cases such as these, leaving to one side any questions about the value of the primary testimonies available, hearsay may be the best part of the case. A case may consist entirely of hearsay and intelligence ‘data’ (that X was in certain company at certain times, and certain places at others, etc). This leaves you with a very… Read more »
Excellent discussion. This really isn’t about hearsay per se, it’s about the use of hearsay to faqbricate a “mosaic” which is then asserted as having sufficient weight to warrant indefinite detentions or assassinations. See * Judge Kessler’s recent opinion in Ahmed v. Obama (D.D.C. 2009.05.11). http://www.pegc.us/archive/In_re_Gitmo_II/ahmed_opinion_GK_20090511.pdf * SCOTUSblog – Analysis: Dismantling a detention case, point by point, by Lyle Denniston (2009.05.14). http://www.scotusblog.com/wp/analysis-dismantling-a-detention-case-point-by- point/ And once again, this stuff was just SOP for the Nazis and Soviets. The only thing the advocates of such policies are proving is their own disloyalty to the United States and their own absolute unfitness to hold any position of public trust — they are in fact subversives who are engaged in an effort to stage an underground coup d’etat against the Constitution and laws of the United States. On information and belief, I am completely serious: these people aren’t just neo-fascists and fools, they are traitors. Not by intent, but by criminal negligence and dereliction of duty. And not merely traitors to the United States, but also to reason and humanity. They are nothing but new-age Nazis and Soviets who think and behave like animals because they think that’s the only way to fight a… Read more »