Editore"s Note
Tilting at Windmills

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March 21, 2006
By: Kevin Drum

WOMEN IN POLITICS....For anyone who wonders whether gender parity in our political insitutions is really that big a deal, consider a case that was argued before the Supreme Court on Monday. The question at issue was whether a recording of a 911 emergency call could be admitted as evidence in court even if the victim who made the call later refused to testify in person:

"The practical reality is many women are scared to death" to testify against a spouse or partner who abuses them, said Ginsburg, now the only woman on the high court. In other instances, "they are so desperate financially" that they decide against testifying, she said.

She questioned whether the Constitution should be interpreted to bar prosecutors from using their calls to a 911 line. "This is not just a call. It is a cry for help," Ginsburg said.

But Justice Antonin Scalia countered that the use of such statements in the place of a witness' testimony in court violated the principle set in the Constitution.

The 6th Amendment says: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Scalia said the court should enforce that right.

Now, Ginsburg might be right and she might be wrong. But the point is that she was the only one to even raise an argument for allowing the 911 call to be used, and that's almost certainly because she's a woman herself and a former director of the ACLU's Women's Rights Project. Without her, there apparently wouldn't have been even a single justice willing to give much weight to the real-world reasons that make it difficult to get victims of domestic violence to testify. Ginsburg's argument might not be enough to change the result of the case, but it's something that the male justices should at least be forced to consider.

Kevin Drum 2:40 PM Permalink | Trackbacks | Comments (156)

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Scalia's blowing smoke. You can introduce business records made by a third person in a prosecution, CPS records, for example, even if that person is not available to testify. There are more than 30 exceptions to the hearsay rule. There is no reason not to have one in this situation. Arguably it would fall under the "excited utterance" exception.

Posted by: Jose Padilla on March 21, 2006 at 2:49 PM | PERMALINK

Scalia's blowing smoke. You can introduce business records made by a third person in a prosecution, CPS records, for example, even if that person is not available to testify. There are more than 30 exceptions to the hearsay rule. There is no reason not to have one in this situation. Arguably it would fall under the "excited utterance" exception.

Posted by: Jose Padilla on March 21, 2006 at 2:51 PM | PERMALINK

Let me see, Ginsburg gives us some perspective from a woman's point of view, and Scalia is using the Constitution.

Hmmm, what is the purpose of the Supreme Court again? Was it to decide legality or was it an opinion poll?

Posted by: conspiracy nut on March 21, 2006 at 2:57 PM | PERMALINK

They're just attempting to clarify an earlier decision, which all the current justices minus Roberts and Alito voted in favor of, that being Washington v. Glucksberg. That case held that out-of-court statements could not be admitted if the speaker was unavailable and the statement was testimonial. The reason is that this would violate the Confrontation Clause of the Constitution, because the defendant would be unable to cross-examine the speaker.

All those heresay exceptions Jose Padilla cites work in civil cases, but not in criminal cases, because of this.

The remaining question was "what is testimonial?" While I share Ginsburg's concerns, having just taken Evidence I would have assumed a 911 call was testimonial.

Posted by: Steve Brady on March 21, 2006 at 2:57 PM | PERMALINK

If the prosecution uses the tape, why couldn't the defense just call her as a witness? Then they'd be able to confront her.

Posted by: Hamman on March 21, 2006 at 2:58 PM | PERMALINK

Scalia is the embodiment of the same patriarchal, condescending attitude that views a woman as nothing more than an incubator for a rapist's fetus.

Posted by: Stephen Kriz on March 21, 2006 at 2:59 PM | PERMALINK

Hmmm, what is the purpose of the Supreme Court again? Was it to decide legality or was it an opinion poll?

Where does the constitution define "testimonial?"

You still have to make arguments.

Posted by: Steve Brady on March 21, 2006 at 2:59 PM | PERMALINK

I don't even have enough courage to call 911, much less testify in public. I am working up enough courage to deal with the situation when my kids go to college.

In the meantime, it would be helpful if there were more Justice Ginsburgs around.

Posted by: there are a lot of me on March 21, 2006 at 2:59 PM | PERMALINK

er, the point is that the witness is available to testify..she's just unwilling to.

of course, the business records exception, like the excited utterance exception, the present sense impression exception and the state of mind exception, applies even where the utterant is available.

however, hearsay exceptions do not automatically save you from the confrontation clause.

Posted by: Nathan on March 21, 2006 at 3:01 PM | PERMALINK

Jose, the lower courts allowed the statements in under the "excited utterance" exception to the hearsay rule. But, as Steve B. noted, in criminal cases this exception to the general rule that out of court statements cannot be offered at trial as proof of the truth of the matter asserted (known to us lawyer folk as the hearsay rule) has to be reconciled with the Sixth Amendment's Confrontation Clause.

Posted by: nolo on March 21, 2006 at 3:04 PM | PERMALINK

scotusblog has a nice rundown...including some key facts which appear to make her call testimonial in nature (she wasn't asking for help).

"Davis argues that in determining whether a statement is testimonial which, because McCottry was unavailable to testify at trial and Davis did not have an opportunity to cross-examine her, is the key question the relevant standard is whether the declarant reasonably could have contemplated that the statement would be used for law enforcement purposes. He contends that standard is met here, noting that the victim never asked for help during her 911 call and instead reported identifying information about him, as well as his alleged violent acts."

http://www.scotusblog.com/movabletype/archives/2006/03/tomorrows_argum_33.html#more

Posted by: Nathan on March 21, 2006 at 3:04 PM | PERMALINK

I wasn't aware that 911 calls couldn't be used routinely as evidence in the first place.

In this particular case, Ginsberg might have a point, but I could see where a ruling in favor of using the recording could be "spread" to other issues of tapes and recordings in the future.

Posted by: tbrosz on March 21, 2006 at 3:04 PM | PERMALINK

Excited utterance, present sense ... those exceptions have to do with reliability. But the Court rejected the unreliable/reliable distinction for the testimonial/non-testimonial one.

Posted by: Steve Brady on March 21, 2006 at 3:06 PM | PERMALINK

Good, Godly men like Al and I are praying daily that Jesus calls Ruth home soonest. Once women realize their uteri belong to us menfolk, everyone will be much better off.

Posted by: Freedom Phukher on March 21, 2006 at 3:09 PM | PERMALINK

Well Steve, I've been a little irritated at Ginsburg since she announced in South Africa that her job was to determine

common denominators of basic fairness governing relationships between the governors and the governed.
instead of, oh I don't know, following the Constitution.

Posted by: conspiracy nut on March 21, 2006 at 3:09 PM | PERMALINK

I believe there is such thing as the Ginsburg strategy. It involves battling discrimination against women by finding parallel cases (no matter how rare) that affect men and bringing the man's case before the court. That counters in-group biases that white men tend to have (as do all in-groups). Weinberger v. Wiesenfeld (1975) is a prime example of this strategy.

It all illustrates the importance of a diverse court. In-group bias is a proven real world psychological phenomenum and even the most detached and logical intellectual has trouble with it. So imagine the problems Scalia has with it.

Posted by: kj on March 21, 2006 at 3:09 PM | PERMALINK

I'd rather not say anything, thanks.

Posted by: Mrs. Nino Scalia on March 21, 2006 at 3:11 PM | PERMALINK

I'd also say to Kevin...that it's nice that Ginsburg feels empathy for her reasons for not testifying...empathy is cheap...it's also irrelevant in this matter.

The accused is constitutionally guaranteed the right to cross examine his/her accuser. deal with it. I thought liberals were supposed to be sympathetic to the rights of criminal defendants.

even rape shield laws have to pass constitutional muster in their application (for example, there are situations where the victim's prior sexual history is constitutionally requireed to be admissible (and I know of at least one case where the victim's post-purported-rape sexual history should have been admissible).

Posted by: Nathan on March 21, 2006 at 3:11 PM | PERMALINK

But the point is that there doesn't seem to be any kind of consideration for the safety of the woman. The fact that it takes a woman (closer to the "problem" of having to choose between safety and justice) to realize this is sad - this is the kind of scenario that our justice system should address in some way.

Without Ginsburg on the court, it's unlikely that this issue would have seen the light of today. Hopefully, these problems brought-up in the Supreme Court provide inspiration for well-meaning legislators interested in protecting the women in this country. In America, you should be able to have both safety AND justice - especially from an abusive partner.

Posted by: rusrus on March 21, 2006 at 3:16 PM | PERMALINK

I always thought liberals defended the Constitution. Apparently the 6th amendment isn't that important.

If the defendant in a criminal case was a woman, and said defendant was barred from confronting a witness who could prove her innocence, I suspect Justice Ginsberg could be roused to defend the 6th amendment.

This isn't particularly hard. If the witness is available, he/she testifies. If they won't, you can't use the other evidence.

Posted by: Steve White on March 21, 2006 at 3:16 PM | PERMALINK

If it's sexual terrorism, then the wife beater should be tossed into Guantanamo, and he don't get no stinkin' 6th Amendment rights.

Hey, don't go making a fuss over the 6th Amendment until you make sure my 1st Amendment (free speech zones) and 4th Amendment (no NSA spying on me please) rights are respected. Hell, even Bush is going to need the 5th Amendment someday.

Posted by: Osama_Been_Forgotten on March 21, 2006 at 3:18 PM | PERMALINK

Ginsburg identifies a valid policy concern, here, and it certainly is not uncommon -- liberal or conservative, notionally "originalist" or not -- for justices to cite policy concerns in decisions, particularly in fact patterns that are on the perimeter of legally significant classifications.

That being said, the confrontation clause protection is a key protection of the individual agaisnt government power in the criminal process, and ought not be lightly compromised. The idea of "victim's rights" in criminal proceedings is all too often a convenient bloody shirt to wave around to excuse eroding clear and fundamental rights of the criminally accused, and to expand government power at a cost of individual rights and liberty.

And this phenomenon is not exclusive to either the right or the left.

Posted by: cmdicely on March 21, 2006 at 3:19 PM | PERMALINK

Here's Crawford (I said the wrong case earlier):

Crawford

One way to admit the 911 call is to say that Scalia is wrong in reading the 6th Amendment.

Or you can argue that 911 calls do not fit his definition, like New York successfully did:

Moscat.

Posted by: Steve Brady on March 21, 2006 at 3:22 PM | PERMALINK

That explains it.
Now we need a child on the court, a left-hander, "a black, two jews and a cripple", as Mr. Watt said once.

Posted by: Matt on March 21, 2006 at 3:23 PM | PERMALINK

Kevin gets rightfully whipped again by Somerby today...www.dailyhowler.com.

Posted by: Dude on March 21, 2006 at 3:25 PM | PERMALINK

Kevin, you touch on a question that has really bothered me. Why was Bush not taken more to task for eliminating one of two women from the Court and replacing her with yet another white male?? Heck, I'm a white male, but I saw this as a huge step backwards for the Court. Where were women's groups in all of this? I didn't hear a peep out of them during the Scalito (sp.) nomination.

Posted by: Big House on March 21, 2006 at 3:26 PM | PERMALINK

cmdicely:

Word.

(I do think that Ginsburg's argument may have been better served by asserting that 9/11 calls are essentially never testimonial in nature -- concentration on the alleged victim's rationale for not testifying is simply peripheral to the confrontation clause issue.)

Posted by: Nathan on March 21, 2006 at 3:26 PM | PERMALINK

How is this situation any different than a witness who is going to testify against the mob?

Can anyone make a compelling argument that they don't have a right to cross examine the witness?

I mean there's a legitimate concern for the witness' safety here too, but as far as I know no one has ruled against the accused mafia boss' right to cross examine the witness' against them.

Posted by: Dr. Morpheus on March 21, 2006 at 3:29 PM | PERMALINK

This post was a bit asinine. If the point that Ginsburg raised was valid, shouldn't someone have argued it in the case? You know, in many cases, you're going to get subjects to whom the justices can't directly emphatize.

I'd trade the women's perspective of Ginsburg for another justice who follows the Constitution instead of looking to foreign law.

Posted by: Frank J. on March 21, 2006 at 3:29 PM | PERMALINK

Oh, did Ginsberg wake up from her nap in time to make that observation??

Posted by: BigRiver on March 21, 2006 at 3:31 PM | PERMALINK

Dr. Morpheus:

for the record, if there is proof of intimidation...then a witness' out-of-court statements may be admissible in a criminal trial.

Posted by: Nathan on March 21, 2006 at 3:31 PM | PERMALINK

Dr. Morpheus is right.

Victims are often reluctant to testify against the perpetrator. Why does everything have to be 'a gender issue' with the left??

Posted by: Paddy Whack on March 21, 2006 at 3:33 PM | PERMALINK

Ginsburg's argument might not be enough to change the result of the case, but it's something that the male justices should at least be forced to consider.

Yes, they should be forced to consider it. How do we do that Kevin? Gunpoint? Beatings? How will we know they really are considering it? Waterboarding until they say they are? If they say the considered it, but are still against it, can we believe them? No way.

Kevin, it is clear you are a violent male and need to attend anger management classes.

Shame on you and your Y gene.

Posted by: jerry on March 21, 2006 at 3:38 PM | PERMALINK

Now we need a child on the court, a left-hander, "a black, two jews and a cripple", as Mr. Watt said once.

The court already meets those criteria, at least if you consider Scalia a child. Certainly acts like one.

I wonder how many of the conservatives who are outraged at Ginsburg's remarks on the reality of spousal abuse were similarly upset at Thomas' declaration that cross-burning isn't free speech.

Posted by: Drew on March 21, 2006 at 3:42 PM | PERMALINK

Stefan is waiting for his DNC email before he posts anything on Ruth "Sleepy" Ginsberg.

Posted by: BigRiver on March 21, 2006 at 3:43 PM | PERMALINK

"cross-burning isn't free speech" !!!!!

Can we drown the damn things?

Posted by: Matt on March 21, 2006 at 3:44 PM | PERMALINK

Paddy Whack sez: Dr. Morpheus is right.

So, P.W., you're siding with Ginsburg on this, and saying that Scalia is wrong?

Posted by: Alek Hidell on March 21, 2006 at 3:49 PM | PERMALINK

Then it's agreed. Ginsburg, like a typical estrogen-addled chick, is talking out of her ass. Thank God we've got eight men on the court to set her straight. As soon as we get that ninth then we don't have to hear from these menopausal bozos again.

God, it's great to be a man in America, ain't it? High five!!

Posted by: Typical Male Commenter on WM on March 21, 2006 at 3:49 PM | PERMALINK

I see this roughly the same way as the commenter who likened it to testifying against the mob. Legitimate cause to fear for one's life has a very different meaning when you live with the person. Every moment is an opportunity to take threatening action against a person you live with. If the woman is afraid to be in court, with lawyers and guards and a crowd of witnesses between her and her accused, then she needed a better lawyer who could have coached her up and gotten her the therapy she needed; if she couldn't afford one, then we have another problem, but one that still isn't her own fault...

Big House said: "Why was Bush not taken more to task for eliminating one of two women from the Court and replacing her with yet another white male??" I'll go further: why isn't Bush catching hell for replacing a white male with another white male?!

Nathan said "...9/11..." Since when did 9/11 become an acceptable term for the American universal emergency phone number? 911 is a phone number; 9/11 is a date. F*cking get it right people! It's been 5 f*cking years!

Posted by: diddy on March 21, 2006 at 3:50 PM | PERMALINK

It seems to me that the tape or transcript of a 911 call is a public record, and if it's relevant, it should be admitted.

If she wants to retract her statements in the phone call, let her get on the stand and explain why to the jury.

Posted by: Yankee Sailor on March 21, 2006 at 3:56 PM | PERMALINK

Check out the picture of Bush at Drudge --his suit is shrinking and he's embracing some invisible ghost woman!

Posted by: cld on March 21, 2006 at 3:57 PM | PERMALINK

Yankee Sailor:

How about you read the Sixth Amendment and get back to us?

Posted by: Nathan on March 21, 2006 at 3:59 PM | PERMALINK

Staring into the lap of some invisible ghost woman, I should have said.

Posted by: cld on March 21, 2006 at 3:59 PM | PERMALINK

I'm not sure the Ginsburg example is a very convincing one, precisely because it looks so much like a case of special pleading.

How about a hit man who testifies against his former bosses -- presumably his testimony has to done in court in person, despite the risks. Is a woman under the threat of spousal abuse in general worse off here?

No doubt there are good examples of the woman's perspective being critical -- abortion rights comes to mind. This just isn't it.

Posted by: frankly0 on March 21, 2006 at 4:03 PM | PERMALINK

"Ginsburg's argument might not be enough to change the result of the case, but it's something that the male justices should at least be forced to consider."

Her argument about what? "This is not just a call. It is a cry for help" isn't a legal argument unless she is invoking the excited utterance exception, which she isn't. 6th amendment protections are just as important for the protection of citizens from arbitrary exercises of government power (and in modern times probably more so) as 1st amendment protections regarding church and state.

Posted by: Sebastian holsclaw on March 21, 2006 at 4:04 PM | PERMALINK

As a public defender who works with these kind of cases every day, rarely do I see a woman who is truly afraid of her partner. What I do see are a lot of ugly domestic situations where both parties are at fault. That is the nature of most domestic violence cases - and anyone who says otherwise doesn't work in the system. What ends up happening is that the female half gets pissed, calls 911, exaggerates what the male half did, and gets him arrested.

The next day - after she has calmed down or sobered up - she realizes it was a mistake to call the police. But the DA's don't dismiss the cases - often because they want to teach the woman a lesson - don't call 911 unless you are willing to follow through with a prosecution. So the DA's try to use the tapes of the 911 call, because the woman is unwilling to cooperate.

911 tapes are used not because the woman is scared, but because she doesn't want to see her partner go to jail.

What Crawford does is empower women. It takes the power to prosecute out of the hands of the state and puts it in the hands of the woman. Isn't that a good thing?

Let's stop babysitting - if a man is beating you, get out of the relationship. In 1950 that may not have been possible. Today it is.

Posted by: mkultra on March 21, 2006 at 4:05 PM | PERMALINK

"Menopausal bozos" made me chuckle. But seriously, folks...

This sure looks like another one of those constitutional "it's a terrible system but it's also the best system" kind of things. Not only is the 6th amendment pretty clear, it's also extremely necessary. I share Ginsberg's concerns on a personal and social level, but I'm not sure where she'd go with it constitutionally.

And let's hold off on the "this is how the left always... blah blah blah" posts. I find constitutional discussions to have a lot more substance to them than the strictly political assassinations everyone usually fiddles with. Let's not ruin it for those of us who actually give a shit about how the country functions. In turn, Scalia lets his desire to turn the country into "Leave it to Beaver" influence him way too much at times, but the old dude's got -- at the VERY least -- a very valid procedural concern. I have no more desire to see Ginsberg neuter the 6th amendment than I do to see Bush disembowel the 4th.

Posted by: tron on March 21, 2006 at 4:10 PM | PERMALINK

Libs: ""The Constitution doesn't mean what it says. It means what we WANT it to mean."

Posted by: BigRiver on March 21, 2006 at 4:22 PM | PERMALINK

"The 6th Amendment says: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Scalia said the court should enforce that right."

except of course, those in gitmo, those renditioned away, those with suspicious names, those whose names resemble suspicious names, those who think so quaintly that habeas corpus, treaties, international conventions, and the constitution impose constraints on the executive branch

Posted by: Martin Richard on March 21, 2006 at 4:26 PM | PERMALINK

Her argument about what? "This is not just a call. It is a cry for help" isn't a legal argument unless she is invoking the excited utterance exception, which she isn't.

Actually, it is a legal argument, if you're trying to figure out what's testimonial.

Particularly if you are trying to figure out what's a police interrogation, which Scalia also declined to define in Crawford.

A statement which is a cry for help and not initiated by police may well in fact not be testimonial, which is what the New York court found in Moscat.

Libs: ""The Constitution doesn't mean what it says. It means what we WANT it to mean."

How about: "The Constitution doesn't require absurd results, so if a reading of the Constitution produces an absurd result, maybe that reading is wrong."

Posted by: Steve Brady on March 21, 2006 at 4:28 PM | PERMALINK

so if a reading of the Constitution produces an absurd result, maybe that reading is wrong
Who defines absurd?

Posted by: conspiracy nut on March 21, 2006 at 4:31 PM | PERMALINK

conspiracy nut:

Stop talking about the constitution as if you have a clue about what it actually says or how it's been interpreted over our history. It sounds like you get your ideas on it from the same place you got the Dan Quayle quotes that you falsely attributed to Al Gore.

Posted by: brewmn on March 21, 2006 at 4:33 PM | PERMALINK

I would be careful about making predictions about how a Justice is going to rule merely by the questions they ask during argument as reported by a newspaper reporter.

IMO there are some very important policy issues at stake that the court should consider, but that they dont trump the fundamental basis of the sixth amendment.

The key phrase is: "to be confronted with the witnesses against him" As for the literalists its interesting to note that it doesnt acutally give the right to confront the witness but only be confronted by them. In any case, the spirit of the 6th amendment and the right to cross examine is at its core. http://caselaw.lp.findlaw.com/data/constitution/amendment06/#annotations
.

Posted by: Catch22 on March 21, 2006 at 4:34 PM | PERMALINK

"Libs: The Constitution doesn't mean what it says. It means what we WANT it to mean."

Look, I'm referencing quotes that no one made, and then assigning them to large, loosely identified groups of people I frequently disagree with! Gaze in awe at the refined state of modern political debate!

Posted by: bill on March 21, 2006 at 4:34 PM | PERMALINK

Let's stop babysitting - if a man is beating you, get out of the relationship.
Posted by: mkultra on March 21, 2006 at 4:05 PM | PERMALINK

But if I stop voting for him, he said the terrorists will git me!

Posted by: MK-Republican on March 21, 2006 at 4:36 PM | PERMALINK

Hey brewmn, thanks for stopping by. Why don't you explain to me why Supreme Court judges should be passing on their personal beliefs in rulings instead of reading the Constitution.

Since you're so conversant.

Posted by: conspiracy nut on March 21, 2006 at 4:36 PM | PERMALINK

"I have no more desire to see Ginsberg neuter the 6th amendment"

ha! her comments evince an intent to to exactly the obverse of that.

Posted by: Nathan on March 21, 2006 at 4:37 PM | PERMALINK

Good lord, did all you wingers miss Kevin's point? He is not trying to make a specific point about about this case, he is trying to make a general point about why diversity is good. A more diverse court will ask a more diverse set of questions and examine a broader range of potentially relevant case law. Over the course of many cases, this should improve decision-making. In essence, it is a caution against group think.

Posted by: ecoboz on March 21, 2006 at 4:40 PM | PERMALINK

Ya, and from the title of the post it appears he believes politics belong on the Supreme Court, too.

Posted by: conspiracy nut on March 21, 2006 at 4:41 PM | PERMALINK

I have to announce that "Typical Male Commenter" at 3:49 was not I, because when I read it I burst out laughing thinking how much it sounded like me. Of course the people here who are arguing for the inviolability of the confrontation clause are right.

But I'm amused nonetheless at the tone of some of the posters, particularly the ones least likely to have ever been within spitting distance of a copy of the Constitution.

And mkultra, I'm surprised that a "public defender" would make this idiotic statement: ...if a man is beating you, get out of the relationship. In 1950 that may not have been possible. Today it is. How is it possible to work as a PD while understanding so little about the economic and educational realities of the majority of the people in front of you?

Posted by: shortstop on March 21, 2006 at 4:47 PM | PERMALINK

Kevin wrote,
"Ginsburg's argument might not be enough to change the result of the case, but it's something that the male justices should at least be forced to consider."
The US constitution is what the supremes are supposed to consider. First, last and in between.

This just proves what a schmuck you are Kevin. You really don't have clue one to what the US constitution is about.
Its also proof you don't give a damn about justice and rights, all you give a damn about is feelings.
A typical liberal shithead.
Go hang youself stain.

Posted by: Chaufist on March 21, 2006 at 4:48 PM | PERMALINK

Now we need a child on the court, a left-hander, "a black, two jews and a cripple", as Mr. Watt said once.

Don't the 5 Catholic jurists count toward essential fairness?

Posted by: Jeffrey Davis on March 21, 2006 at 4:49 PM | PERMALINK

But if I stop voting for him, he said the terrorists will git me!

Line of the year!

Posted by: shortstop on March 21, 2006 at 4:49 PM | PERMALINK

"Ya, and from the title of the post it appears he believes politics belong on the Supreme Court, too."

Especially identity politics.

Posted by: Freedom Fighter on March 21, 2006 at 4:49 PM | PERMALINK
Ya, and from the title of the post it appears he believes politics belong on the Supreme Court, too.

What the Supreme Court does is politics.

Pretending that it is not is unhelpful.

Posted by: cmdicely on March 21, 2006 at 4:49 PM | PERMALINK

Is it safe to say Ginsburg was wrong, as she was out voted 8 to 1?

Posted by: Freedom Fighter on March 21, 2006 at 4:51 PM | PERMALINK

"Scalia is the embodiment of the same patriarchal, condescending attitude that views a woman as nothing more than an incubator for a rapist's fetus."

Actually his arguments are rooted in the Constitution. Of course, liberals think it's nothing more than just a piece of paper.

Posted by: Freedom Fighter on March 21, 2006 at 4:54 PM | PERMALINK

Thanks, Kevin.

Posted by: catherineD on March 21, 2006 at 4:55 PM | PERMALINK

What the Supreme Court does is politics.

Main Entry: politics
Function: noun plural but singular or plural in construction
Etymology: Greek politika, from neuter plural of politikos political
1 a : the art or science of government b : the art or science concerned with guiding or influencing governmental policy c : the art or science concerned with winning and holding control over a government

I'll give you 1a, but not 1b.

Posted by: conspiracy nut on March 21, 2006 at 4:55 PM | PERMALINK

"How about a hit man who testifies against his former bosses -- presumably his testimony has to done in court in person, despite the risks. Is a woman under the threat of spousal abuse in general worse off here?"

From the left point of view; women (feminist of course), blacks, gays, (now Moslems too) are constantly under threat, that's why they deserve extra special protection under the law.

Posted by: Freedom Fighter on March 21, 2006 at 4:57 PM | PERMALINK
The US constitution is what the supremes are supposed to consider. First, last and in between.

Er, no.

The Supreme Court, and all federal courts, are supposed to consider the law and the facts. Now, it is true that the Constitution is the paramount element of the law in the United States, it is not the sum total of the law, and its pretty well established, both in the legal tradition in which the authors of the Constitution lived, and in the practice of the Court since the Constitution was adopted, that considerations of justice and fairness and other policy considerations are an integral part of applying and interpreting the law.

Now, certainly, there is no room to dispute that Ginsburg would be wrong were she to argue for a rule inconsistent with the confrontation clause; that's simple to state, but unhelpful. What is far less clear, but the actual issue here, is exactly where the boundary of confrontation clause protection ought to be drawn. And just looking at the text in a vaccuum doesn't provide an answer to that, nor, as far as I know, is this well-established in statute.

The Constitution is not a revealed truth whose terms all have simple and uncontroversial application; if it were, all the bleating to simply "follow the Constitution" would make sense, but one has to think that there would be a lot fewer genuine controversies actually reaching the Court in the first place, at least on Constitutional issues, since reasonable people would never be capable of even conceiving of differing positions on the interpretation.

Posted by: cmdicely on March 21, 2006 at 4:58 PM | PERMALINK

Stop throwing the Constitution in my face. Its just a goddamned piece of paper!

--George W. Bush, November 2005

Looks like FF and cn graduated from the same school of "research skills." At the top of their class: George Deutsch.

Posted by: shortstop on March 21, 2006 at 4:58 PM | PERMALINK
I'll give you 1a, but not 1b.

Well, you're just wrong. It's clearly 1a and 1b both in the normal course of their work, and 1c in the event of, e.g., Bush v. Gore.

Posted by: cmdicely on March 21, 2006 at 5:00 PM | PERMALINK

"What the Supreme Court does is politics.

Pretending that it is not is unhelpful."

So are you lefties now admitting you don't want jurists on the Supreme Court, but you want political activists like Rachel Corrie, Tookie Williams, etc..?

Posted by: Freedom Fighter on March 21, 2006 at 5:01 PM | PERMALINK

Silly of me, but I'm curious about the ACTUAl argument.

The Sixth says, among other things, that a defendant gets to be "confronted" with the witnesses against him.

MKUltra sez that in lots of domestic violence cases (especially with a must-bust rule) you get a more or less mutual fight, in which she calls 911 so he gets arrested. Presumably there is some other evidence (medical documentation of her injuries, maybe), or the 911 tape is so clear (a weapon?) that it's sufficient to prosecute him.

If she won't testify, the fact of her injuries at the time wouldn't be' enough to convict him, right?

But if they admit the 911 tape, presumably establishing that she said at the time that he injured her, but she gets to refuse to testify, how does he get his Constitutionally guaranteed right to 'confront' the witness against him?

What if there are degrees of evidence that determine the nature of the crime that are ONLY in evidence in the tape? "He's trying to kill me", f'r instance.

What if his story is that she was going to shoot him, so he threw a brick at her? The evidence of a brick in the head injury would sure LOOK like he was trying to kill her, and without her testimony his defense would look awful weak next to her injuries and an essentially unchallengeable "he's trying to kill me" tape.

I take Kevin's point that it's good to have Justice Ginsburg on the Court, and we ought to have more: but I'd like a simple clear statement-- why isn't Scalia right?

Posted by: theAmericanist on March 21, 2006 at 5:02 PM | PERMALINK

Seems like this should apply to any victim of intimidation.

I'm a woman and a feminist, and I think there are a lot more male victims of domestic abuse and stalking than is acknowledged in our society. No reason to limit victim's rights to women.

Domestic abuse encompasses a wider spectrum than just the stereotype of the blameless woman fatally abused by her evil thug of a husband. My brother's friend has been stabbed by one girlfriend and beaten by another. A neighbor of mine some years ago was stabbed by his ex girlfriend. A friend's long-suffering uncle was put in the hospital by his wife. Just sayin', things aren't as unequal as they used to be; maybe gender should be excluded from these considerations.

Posted by: Librul on March 21, 2006 at 5:03 PM | PERMALINK
I take Kevin's point that it's good to have Justice Ginsburg on the Court, and we ought to have more: but I'd like a simple clear statement-- why isn't Scalia right?

The concerns raised by Scalia and Ginsburg are not incompatible; neither has said how they would.

It is hasty to even assume their is a disagreement on the law, much less try to judge which is "right" and which is "wrong".

Oral arguments are not the same as decisions.

Posted by: cmdicely on March 21, 2006 at 5:07 PM | PERMALINK
So are you lefties now admitting...blah blah blah

I'll ignore your ridiculous strawman, and just point out that I am not now, nor have I ever been, the spokesman for "lefties" as a group.

Posted by: cmdicely on March 21, 2006 at 5:08 PM | PERMALINK

shortstop
cn graduated from the same school of "research skills." I'm actually in favor of the Constitution. You'll notice that I'm currently arguing with cmdicely about that. I don't care how late Bush was up or what kind of mood he was in, that was uncalled for.

cmdicely
Well, you're just wrong.
And here I was, thinking that elected officials were supposed to be influencing policy; not judges. I'm afraid we aren't going to agree that judges are supposed to be setting policy instead of elected officials.

Posted by: conspiracy nut on March 21, 2006 at 5:10 PM | PERMALINK

Dice: I'll ignore your ridiculous strawman, and just point out that I am not now, nor have I ever been, the spokesman for "lefties" as a group.

Then you have to stop bogarting the Grand Poobah hat all the time, and let one of us have a turn at wearing it! And ixnay on the expense account, too.

Posted by: shortstop on March 21, 2006 at 5:11 PM | PERMALINK

cn:

I'm a lawyer, asshole. And if you are too stupid to see that the reason we have courts is to interpret the Constitution and the laws promulgated thereunder, that's really not my problem.

Scalia has said that the authority to govern comes from God. Neither Scalia nor you are smart enough to determine where one man's divination of "original intent" of the framers ends and another's subjective reliance on personal beliefs begins.

Posted by: brewmn on March 21, 2006 at 5:11 PM | PERMALINK

Actually, cn, I was referring to your and Freedom Fighter's shared propensity for attributing to Democrats the dumb and dangerous remarks made by Republicans.

But since you mention it, you're getting spanked on the Constitutional issues, too.

Posted by: shortstop on March 21, 2006 at 5:14 PM | PERMALINK

I'm a lawyer, asshole.
Then you are the dumbest lawyer I ever read.

In fact, I think you have singlehandedly managed to lower my opinion of lawyers. And as low as it was to start with, that's quite an accomplishment.

Posted by: conspiracy nut on March 21, 2006 at 5:14 PM | PERMALINK

But since you mention it, you're getting spanked on the Constitutional issues, too.
Hey, I was suckered by an lying website. I fessed up.

And being told I'm on the wrong side of an argument when the other side espouses judicial activism, that is a charge I'll wear proudly.

Posted by: conspiracy nut on March 21, 2006 at 5:16 PM | PERMALINK
Then you have to stop bogarting the Grand Poobah hat all the time, and let one of us have a turn at wearing it! And ixnay on the expense account, too.

There's an expense account?! Wait, can I reconsider?

Posted by: cmdicely on March 21, 2006 at 5:17 PM | PERMALINK
And being told I'm on the wrong side of an argument when the other side espouses judicial activism

No one's espousing "judicial activism". I'm talking about acknowledging the facts about the fundamental nature of judging, not advocating one or another particular mode of judging.

Not that I find there to be any substance to the term "judicial activism", which is just a BS term that is applied to decisions the speaker doesn't like, but not applied to terms that are objectively no less ends-motivated that they do like.

Posted by: cmdicely on March 21, 2006 at 5:19 PM | PERMALINK

I am female, young and sick of reading these posts. If a witness is afraid to testify, that should tell the judge something about the defendant. I don't understand abusive relationships anyway. If I have to call 911, you bet your ass I'm gonna testify!

Posted by: Clair on March 21, 2006 at 5:20 PM | PERMALINK
I am female, young and sick of reading these posts. If a witness is afraid to testify, that should tell the judge something about the defendant.

Clearly, it is an indication that he must be a witch.

Is that it?

Posted by: cmdicely on March 21, 2006 at 5:22 PM | PERMALINK

I didn't follow the link, but the person making the 911 call wasn't a member of the Democratic Congressional Caucus by any chance?

Posted by: ogmb on March 21, 2006 at 5:25 PM | PERMALINK

No one's espousing "judicial activism".
Heh.

According to Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions
Personal views guiding decisions. Remember telling me that 1b applied to judges? Guiding policy.

Now you can go right ahead and split all the definitions you want, but I doubt I'm gonna buy your spin.

Posted by: conspiracy nut on March 21, 2006 at 5:32 PM | PERMALINK

nutball,

Someday, you'll need, among other things, to learn the difference between description and advocacy.

Posted by: cmdicely on March 21, 2006 at 5:34 PM | PERMALINK

cn says: Scalia is using the Constitution.

Yes, but it wasn't meant to be toilet paper.

Posted by: ckelly on March 21, 2006 at 5:35 PM | PERMALINK

Someday, you'll need, among other things, to learn the difference between description and advocacy.
I got that, I'm the one that actually reads a dictionary around here.

Posted by: conspiracy nut on March 21, 2006 at 5:37 PM | PERMALINK

Maybe the Justices should be forced to follow the Constitution, Drum.

Posted by: MountainDan on March 21, 2006 at 5:38 PM | PERMALINK
I got that, I'm the one that actually reads a dictionary around here.Reading a dictionary is not the same thing as understanding meaning; you seem to think that claiming that no matter how it is done judicial action in fact guides policy and is, therefore, political is the same thing as advocating a mode of judicial decisionmaking.
Posted by: cmdicely on March 21, 2006 at 5:40 PM | PERMALINK
Maybe the Justices should be forced to follow the Constitution, Drum.

And whose privileged interpretation of the Constitution should they be forced to follow?

Posted by: cmdicely on March 21, 2006 at 5:43 PM | PERMALINK

Reading a dictionary is not the same thing as understanding meaning
I can see that, because one of us is terribly confused. You tell me that this is what judges are supposed to be doing:

b : the art or science concerned with guiding or influencing governmental policy
And then you tell me it differs from this
a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions
So ya, I'd say one of us is trying to snow the other one.

Posted by: conspiracy nut on March 21, 2006 at 5:45 PM | PERMALINK

I got that, I'm the one that actually reads a dictionary around here.
Posted by: conspiracy nut

you can understand why we would question your literacy and comprehension ... given all of your recent misquotes and sophomoric arguments?

Posted by: Nads on March 21, 2006 at 5:45 PM | PERMALINK

I got that, I'm the one that actually reads a dictionary around here.

Otto: Apes don't read dictionaries.

Wanda: Yes they do, Otto, they just don't understand them.

Posted by: Stefan on March 21, 2006 at 5:46 PM | PERMALINK

all of your recent misquotes and sophomoric arguments?
There you go with the misquotes. How many times I gotta apologize for that? Whatever it is, I'm happy to do it.

The sophmoric arguments, however, are intentional.

Posted by: conspiracy nut on March 21, 2006 at 5:47 PM | PERMALINK

Clair: If a witness is afraid to testify, that should tell the judge something about the defendant.

It could tell the judge that the witness is afraid of the defendant.

It could tell the judge that one or both of the parties has issues with anger management, violence, addiction or all of the above.

It could tell the judge that the witness is pursuing some sort of vendetta against the defendant.

As others have pointed out, abusive relationships are not always cut and dried. There's frequently, perhaps even usually, a history of dysfunctionality on both sides that exacerbates the problems, clouds motivations and defies easy solutions.

Posted by: shortstop on March 21, 2006 at 5:47 PM | PERMALINK

"I'll ignore your ridiculous strawman, and just point out that I am not now, nor have I ever been, the spokesman for "lefties" as a group."

So, you'd rather see political activists, rather than jurists on the SCOTUS?

Posted by: Freedom Fighter on March 21, 2006 at 5:48 PM | PERMALINK

a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions

There isn't a judge in the world who doesn't allow his personal views on policy to color and cloud his decisions to some extent or another. If judges didn't they would not be human beings, but automatons. That definition of "judicial activism" is therefore so broad as to render the term utterly meaningless.

Posted by: Stefan on March 21, 2006 at 5:50 PM | PERMALINK

So, you'd rather see political activists, rather than jurists on the SCOTUS?

We'd rather see you and all your sock puppets, FF. You, MountainDan and BigRiver, all crammed into one little seat beyond the bar. Sort of a judicial Charlie McCarthy.

Nads! Where you been?

Posted by: shortstop on March 21, 2006 at 5:51 PM | PERMALINK

I have two points to make (which go with Catch22 above):
1. Don't assume that a Judge's questions will tell you how they will rule. This case is a folow-up to Crawford v. Washington, where the court laid down a new rule: a "testimonial" statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Justice Ginsburg agreed with Justice Scalia in this case.
2. There are few if any absolute laws because the real world is messy (go to the link in Catch22's message to see details--for example dying declarations are sometimes admissable).
3. ... umm I'll be back.

Nobody expects..

Posted by: JL on March 21, 2006 at 5:51 PM | PERMALINK

Some states, like Texas, provide for an "outcry" exception to the hearsay rule in cases involving child abuse. This is a common sense adjustment to the credibility problems inherent in the testimony of young children who are to testify against a parent who holds a special power over the witness. Basically it states that the testimony of the first adult, official or otherwise, that the child cries out to for help will be treated as direct testimony and not hearsay. That goes even if the child is available to testify. And if the child is available to testify, and testifies differently than the "outcry witness" it is up to the jury to decide whose testimony is the more credible. It is a sensible, if flawed, system and I see no reason why it can't be applied in this case. The witness in domestic abuse cases is under much the same pressures as a child testifying against his/her parent.

You don't need any special set of genitals to see that. But you do need a vastly different world view than Antonin Scalia seems to have. A little compassion is a start.

Posted by: Majun on March 21, 2006 at 5:53 PM | PERMALINK

There's an unusually high noise-to-signal ratio in this comment thread. As far as I can tell, only 6 commenters (Steven Brady, nolo, Nathan, Catch 22, theAmericanist, and cmdicely) even appear to understand what the legal issue is. Not that they're right or wrong, or even that they agree, but at least they understand the question. The rest are trotting out well-rehearsed Supreme Court talking points -- on all sides -- that can be recycled on just about any occasion.

Posted by: C.J.Colucci on March 21, 2006 at 5:53 PM | PERMALINK

Stef: There isn't a judge in the world who doesn't allow his personal views on policy to color and cloud his decisions to some extent or another. If judges didn't they would not be human beings, but automatons.

Is nothing sacred to you? Next you'll be telling us there's more than one possible interpretation to Biblical passages.

Posted by: shortstop on March 21, 2006 at 5:54 PM | PERMALINK

It's obvious from this exchange why perpeller head wears the coveted Obnoxious Troll laurel while Freedom Fighter is merely common Freeper Drone ...

Updated Troll Contest Nomination List:

1) SERIOUS TROLLS

1) tbrosz
2) rdw (real)
3) Michael L. Cook
4) Steve White
5) Will Allen
6) republicrat

2) OBNOXIOUS TROLLS

1) conspiracy nut
2) McAristotle
3) Jay
4) Tymbrimi
5) Don P.
6) theAmericanist
7) Fat White Guy
8) The Als (I can't tell real from fake)
9) Mike K
10) Birkel
11) Norman
12) Jason

3) FREEPER DRONES

1) GOPGregory
2) BigRiver
4) MountainDan
5) Freedom Fighter
6) Paddy Whack
7) FrequencyKenneth
7) peanut
8) clock
9) brian (capital-B Brian is not a troll)
10) GOP

4) MISCELLANEOUS PSYCHOTICS

1) Patton
2) The Objective Historian
3) Cheney
4) Ashley
5) meatss

5) TROLL PARODIES

1) tbrosz (helicalrocket)
2) tbrosz (circularstrawman)
3) tbrosz (rotaryrectum)
4) tbrosz (swivellingsphincter)
5) Freedom Phukher
6) NSA Mole
7) HappyConservative
8) Al (impossible to tell, so he's a nominee in both categories)
9) 'rdw'

Revisions and/or additions welcome!

Bob

Posted by: rmck1 on March 21, 2006 at 5:55 PM | PERMALINK

Hmmm, some of the people in list #2 and #3 are writing under two or more names, methinks. Also, who is "Jason" in #2?

Posted by: shortstop on March 21, 2006 at 5:57 PM | PERMALINK

Actually his arguments are rooted in the Constitution. Of course, liberals think it's nothing more than just a piece of paper.

George Bush in November 2005: Stop throwing the Constitution in my face. Its just a goddamned piece of paper!

Posted by: Stefan on March 21, 2006 at 5:58 PM | PERMALINK

Come on, Bob, what about my sense of humor?

I even agree with Stefan at 5:50 PM. But when someone tells me that a judge is supposed to be exercising the art and science of influencing policy, it just goes against my grain.

Posted by: conspiracy nut on March 21, 2006 at 5:58 PM | PERMALINK

Nads! Where you been?
Posted by: shortstop

It's been a busy few months ... I'm actually at work right now ...

as for the mouth breathers who suddenly espouse strict constitutionalism when it suits their purposes ... I feel it should be pointed out that the Constitution was, after all, written by by white men for white men, and so an occasional shift in perspective may be warranted.

Posted by: Nads on March 21, 2006 at 5:58 PM | PERMALINK

Come on, Bob, what about my sense of humor?

What about it? You keep congratulating yourself for it, and we all keep searching for any evidence of it.

Posted by: shortstop on March 21, 2006 at 6:01 PM | PERMALINK

conspiracy nut: I even agree with Stefan at 5:50 PM.

And yet one more sign that the End of Days is nigh upon us....

Posted by: Stefan on March 21, 2006 at 6:04 PM | PERMALINK

shortstop
You can search the archives for the exchange that prompted that, or you can continue on in ignorance.

Stefan
Not really. I gotta agree every now and again lest you lefties fall into a rut.

Posted by: conspiracy nut on March 21, 2006 at 6:17 PM | PERMALINK

Right, cn, one person among thousands thought you were funny one day, and you're bragging? How much more pathetic can you get?

After your performance of the last few days, it's hard to imagine there's a bottom floor. But keep up the free entertainment.

Posted by: shortstop on March 21, 2006 at 6:42 PM | PERMALINK

Reading back over this thread I see that shortstop already found that Bush "piece of paper" quote. Once again the agile infielder is first to the ball.

Posted by: Stefan on March 21, 2006 at 6:44 PM | PERMALINK

Right, cn, one person among thousands thought you were funny one day, and you're bragging?
A journey of a thousand miles begins with a single step.

Posted by: conspiracy nut on March 21, 2006 at 6:44 PM | PERMALINK

Thanks, Stefan, but I owe you an apology. I had the souvenir twins from Rio all picked out for you, but I had to jettison them to make room for the strapping young pantaneiro. Damned international baggage limitations. I'm sure you understand.

Posted by: shortstop on March 21, 2006 at 6:47 PM | PERMALINK
I can see that, because one of us is terribly confused.

Yes, you are.

You tell me that this is what judges are supposed to be doing:

No, see there you go with messing up the description/advocacy distinction again.

I characterized what judges inherently, unalterably, and inevitably do, not what they are supposed to (or supposed not to) do.

There is a difference between saying , e.g., "Large hunks of rocks from space smash into the Earth once in a great while and kill lots of living things; pretending that they do not is unhelpful" and, OTOH, saying "Large hunks of rock from space ought to smash into the Earth once in a great while and kill lots of living things, that's a great idea!"

Posted by: cmdicely on March 21, 2006 at 6:54 PM | PERMALINK

Apparently Justice Scalia doesn't really believe in the constitutional provision he quoted, since he has blithely approved of the accused in Gitmo being denied the opportunity to confront the witnesses against them.

Typical conservative hypocrisy.

Posted by: Advocate for God on March 21, 2006 at 6:59 PM | PERMALINK

cmdicely
Definition 1b from above was exercising the art and science of influencing goverment policy. That is what you told me judges are supposed to be doing.

I agree that they will let some personal feelings leak in; and they will guide public policy.

But to allow these to leak in is not the same as exercising the art and science of influencing government policy. You told me this is something they ought to be doing.

Posted by: conspiracy nut on March 21, 2006 at 7:00 PM | PERMALINK

cn: A journey of a thousand miles begins with a single step.

It's supposed to be a step forward, cn.

So quit walking backwards.

Posted by: Advocate for God on March 21, 2006 at 7:02 PM | PERMALINK

So does this mean that if I threaten someone, and if the threat happens to be recorded by someone else, that all I have to do is refuse to testify about what I said on tape and the tape can't be used in court?

Posted by: thug on March 21, 2006 at 7:02 PM | PERMALINK

Are you saying that the Supreme Court should have designated seats for women or minorities? That it should have a limit on the number of Catholics or whites on it? That it should have anything but the best?

Because, you know, conservatives only want the most qualified justices -- they wouldn't care one wit if the Supreme Court was made up of:

8 women, 1 transgendered
5 blacks, 2 hispanics, 2 asians,
7 atheists, 2 muslims,
4 public interest lawyers, 3 plaintiff's attorneys, and 2 law professors.

So long as they were "qualified," nope, conservatives wouldn't care at all. Only liberals care about labels.

Posted by: Max on March 21, 2006 at 7:03 PM | PERMALINK
This is a common sense adjustment to the credibility problems inherent in the testimony of young children who are to testify against a parent who holds a special power over the witness. . . . It is a sensible, if flawed, system and I see no reason why it can't be applied in this case.

Granting, arguendo, that it is a good rule in the case of children, adults are not children.

When you start applying that rule, designed for children, to adults merely because the accused allegedly has "special power" over the adult accuser, there is almost no bounds to where it could be used. I mean, certainly, it would apply in lots of organized crime case, etc.

It becomes an excuse to expand government power at the expense of individual liberties of those threatened with deprivation of liberty at the hands of the government, using "victim's rights" as an excuse.

No aspect of the government's case, and certainly not the center of it, should be effectively shielded from serious questioning, which is what compromise of the confrontation clause protection does.

Posted by: cmdicely on March 21, 2006 at 7:04 PM | PERMALINK

thug: So does this mean that if I threaten someone, and if the threat happens to be recorded by someone else, that all I have to do is refuse to testify about what I said on tape and the tape can't be used in court?

No, it doesn't mean that at all.

Posted by: Advocate for God on March 21, 2006 at 7:05 PM | PERMALINK

Max: conservatives only want the most qualified justices

If that were true, they wouldn't have nominated Miers and wouldn't have nominated and confirmed Thomas, among many other unqualified jurists conservatives have nominated and confirmed.

Posted by: Advocate for God on March 21, 2006 at 7:07 PM | PERMALINK
So does this mean that if I threaten someone, and if the threat happens to be recorded by someone else, that all I have to do is refuse to testify about what I said on tape and the tape can't be used in court?

That depends.

It can certainly be used against you to prove that you did threaten the target (presuming the recording wasn't collected illegally, or inadmissible for some other reason unrelated to the subject here.)

It might mean, OTOH, that if your threat went, e.g., something like "I saw you vandalizing my house, and if you do it again, I'll kill you," it couldn't be used in a criminal trial against the target of the threat on charges of vandalism.

Posted by: cmdicely on March 21, 2006 at 7:08 PM | PERMALINK

Thanks, Stefan, but I owe you an apology. I had the souvenir twins from Rio all picked out for you, but I had to jettison them to make room for the strapping young pantaneiro. Damned international baggage limitations. I'm sure you understand.

No, shortstop, frankly I don't understand at all. Not at all. You've never heard of shipping?

*walks off in a sulk*

Posted by: Stefan on March 21, 2006 at 7:19 PM | PERMALINK

This brings back memories of Evidence class in law school. One of the most interesting intellectual exercises was working your way through the hearsay rule and its exceptions.

For you non lawyers, the hearsay rule is basically that "a statement made out of court is inadmissable to prove the truth of the matter asserted." (close enough for posting, at least).

As some have pointed out, there are numerous exceptions to the rule, such as the "dying declaration" exception.

For example, if the defense in a murder case tried to claim that the murder occurred at 7:00 p.m., when the defendant had an alibi, submitting a tape of a 911 call by the decedent made at 7:15 in which the decedent stated "the defendant is here and he is trying to kill me" could be easily admitted, not to prove its truth, but to prove that the decedent was alive at 7:15.

In this case, we are dealing with a "cousin" of the hearsay rule, if you will, the confrontation clause, which applies specifically to the right of criminals to not only not have hearsay evidence admitted at all, but to have the ability to cross examine their accusers. If it was merely a hearsay rule question, you would not be at the Supreme Court level.

Posted by: hank on March 21, 2006 at 7:22 PM | PERMALINK

CmDicely wrote:
"Not that I find there to be any substance to the term "judicial activism", which is just a BS term that is applied to decisions the speaker doesn't like, but not applied to terms that are objectively no less ends-motivated that they do like."

Oh, there is an objective measure of it and the conservative justices score highest, that is most judicially activist. The measure is overturning the will of Congress and Thomas does it the most followed by Kennedy and Scalia. Ginsberg, Stevens, and Breyer do it the least. Let's just pray that the real judicial activists on the court someday read the constitution and understand that Congress is to make the laws.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?ex=1278302400&en=0e5fac7774080327&ei=5090

Posted by: kj on March 21, 2006 at 7:43 PM | PERMALINK

cmdicely and AfG,

I believe you, but it really isn't clear to me why this is so. Supposing I am on trial for assault: If I had called 911 and said "This is Thug. Send an ambulance, I just broke Jasper's kneecaps", it is accepted in court at face value even if I refuse to testify; but if Jasper called 911 and said "This is Jasper. Send an ambulance, Thug just broke my kneecaps", the tape can't be used at all unless Jasper testifies.

Posted by: thug on March 21, 2006 at 7:44 PM | PERMALINK

Apparently Justice Scalia doesn't really believe in the constitutional provision he quoted, since he has blithely approved of the accused in Gitmo being denied the opportunity to confront the witnesses against them.

Typical conservative hypocrisy.
Posted by: Advocate for God on March 21, 2006 at 6:59 PM | PERMALINK

Typical liberal misreading of the Constitution.

The Sixth Amendment applies to "all criminal prosecutions." Those being held at Gitmo are not being criminally prosecuted. They are being held as "illegal combantants" under the Geneva Conventions and are subject to military, not civilian jurisdiction.

See the difference?


Posted by: Chicounsel on March 21, 2006 at 7:45 PM | PERMALINK

Majun:

you didn't seriously mean to state that women were akin to very young children did you?

Posted by: Nathan on March 21, 2006 at 7:58 PM | PERMALINK

"The Supreme Court, and all federal courts, are supposed to consider the law and the facts."

Er, no.

It depends on whether it's a trial or appellate court and the standard of review as to whether the court should consider the law and the facts or just the law.

Thanks for playing.

Posted by: Birkel on March 21, 2006 at 8:24 PM | PERMALINK

Birkel:

there are rare occasions where an appellate court functions as a trier of fact (usually when there is a question as to whether a finding of fact at the lower level was "clearly erroneous")

Posted by: Nathan on March 21, 2006 at 8:34 PM | PERMALINK

Really? They didn't teach me that in law school. Thanks Nathan.

No... really... I mean it...

Guess I shoulda stuck the words "de novo" in there to prove my bona fides... or something.

Posted by: Birkel on March 21, 2006 at 8:37 PM | PERMALINK

They are being held as "illegal combantants" under the Geneva Conventions and are subject to military, not civilian jurisdiction.

False. They are very specifically being held outside the protection of the Geneva Conventions (Geneva does not recognize a category of "illegal combatants") by the Bush regime. Geneva would demand that they either be held as POWs (in which case they would be given an opportunity to contest their status before an independent tribunal, not the kangaroo courts as now set up), tried in criminal court, or released.

Posted by: Stefan on March 21, 2006 at 8:42 PM | PERMALINK

to the extent thug really wants an answer, one of the exceptions to hearsay is a "declaration against interest" of which "I just broke Jasper's kneecaps" might be an example. In the case of Jasper's call, you are right, in this case if its submitted to prove that you did break his kneecaps not only do you need another exception to the hearsay rule, but you need to get around the sixth amendment as well.

Posted by: hank on March 21, 2006 at 9:00 PM | PERMALINK

Stefan,

The protections of the Genvea Convention do not apply to non-signatories or to those combatants who don't adhere to the rules of war, i.e., wearing uniforms, fighting as part of organized army with recognized chain of command. If those at Gitmo are POWs, then it is illegal under Genvea to interrogate prisoners, apart from getting their name, rank and serial number.

But you concede the point that they are not currently being criminally prosecuted and therefore, not covered by the Sixth Amendment. This was the point of my comment about AofG's misreading of the Amendment.

Posted by: Chicounsel on March 21, 2006 at 10:47 PM | PERMALINK

This reminds me an awful lot of Justice Thomas comments on whether cross burning was protected as freedom of speech. His point was that the intent was not to communicate ideas but rather to terrorize. Without him and his experience on the panel of judges, would anyone have voiced this opinion? I don't know but I think it is important to have a diversity of life experiences on the court. And when Ginsburg resigns, noone with a female life experience will be on the court. Hard to believe.

Posted by: karin on March 22, 2006 at 12:11 AM | PERMALINK
How about you read the Sixth Amendment and get back to us? Posted by: Nathan at 3:59 PM
How about you reading the 1st, 2nd, and 4th Amendments? Hell, read the entire Constitution.
... the other side espouses judicial activism... Posted by: conspiracy nut at 5:16 PM
It is your side that supports activist judges. You seem to have a basic misunderstanding of factual evidence. You support activists judges and project that to Democrats. You quote Republican moonbats and project those quotes to Democrats. At some point in your pathetic brain, you should realize that truth is generally 180◦ from what you think it is.
Revisions and/or additions welcome! Posted by: rmck1 at 5:55 PM
Remove the category "serious trolls" and place that group under the rubric "delusional psychotics."
they are being held as "illegal combantants" under the Geneva Conventions and are subject to military, not civilian jurisdiction. See the difference? Posted by: Chicounsel at 7:45 PM
Even Stevie Wonder could see that is designed to circumvent the law. Posted by: Mike on March 22, 2006 at 1:41 AM | PERMALINK

The protections of the Genvea Convention do not apply to non-signatories or to those combatants who don't adhere to the rules of war, i.e., wearing uniforms, fighting as part of organized army with recognized chain of command. If those at Gitmo are POWs, then it is illegal under Genvea to interrogate prisoners, apart from getting their name, rank and serial number.

No, that's false. The protection and treatment of captured combatants during an international armed conflict is provided in the Third Geneva Convention relative to the Treatment of Prisoners of War, which defines prisoners of war (POWs) and enumerates the protections of POW status. Persons not entitled to POW status, including so-called "unlawful combatants," are entitled to the protections provided under the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. All prisoners fall somewhere within the protections of these two Conventions; according to the authoritative Commentary to the Geneva Conventions of the International Committee of the Red Cross (ICRC): "nobody in enemy hands can fall outside the law."

Captured combatants who are not entitled to POW status have been described as "unlawful combatants" or "non-privileged combatants" by the Bush regime, but neither term is found in the Geneva Conventions. Such persons are still protected under the Geneva Conventions, but under the provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. This Convention also applies to civilian non-combatants who are affected by the conflict and due special protections as "protected persons."

The U.S. position is inconsistent with the Geneva Conventions on several counts. First, the U.S. may not classify as a group all detainees from Afghanistan as not being entitled to POW status; such a determination must be made on an individual basis by a competent tribunal. Second, there is a presumption that a captured combatant is a POW unless determined otherwise. Third, it is incorrect to assert that only POWs are protected by the Geneva Conventions-all persons apprehended in the context of an international armed conflict, including the types of prisoners the U.S. has labeled as "unlawful combatants," receive some level of protection under the Geneva Conventions.

But you concede the point that they are not currently being criminally prosecuted and therefore, not covered by the Sixth Amendment. This was the point of my comment about AofG's misreading of the Amendment.

Again, false. If the government could merely avoid the protections of the Sixth Amendment by not putting someone on trial then it could simply jail that person for life. No one held by the government can fall outside the protection of the law. The Sixth Amendment applies when a person is held against his will, not when the trial starts.

Posted by: Stefan on March 22, 2006 at 11:06 AM | PERMALINK

The protections of the Genvea Convention do not apply to non-signatories

Also, both Iraq and Afghanistan have signed the Geneva Conventions, so they are signatories and their citizens are covered (as are, I believe, the citizens of every other Muslim and Arab nation).

Posted by: Stefan on March 22, 2006 at 11:09 AM | PERMALINK

I don't like Gitmo, but Stefan isn't dealing with the issue of spies and unmarked combatants correctly. There are provisions within the Geneva conventions for those who do not follow it not to be protected by it. The whole point of the document was to encourage following the rules by offering special protection to those who do.

Posted by: Sebastian Holsclaw on March 22, 2006 at 11:29 AM | PERMALINK

There are provisions within the Geneva conventions for those who do not follow it not to be protected by it.

No, there isn't. Here again:

All prisoners fall somewhere within the protections of these two Conventions; according to the authoritative Commentary to the Geneva Conventions of the International Committee of the Red Cross (ICRC): "nobody in enemy hands can fall outside the law."

Posted by: Stefan on March 22, 2006 at 11:55 AM | PERMALINK

I suppose it's a good thing for either party in a lawsuit to have a sympathetic judge. So in a battered spouse case that involves some Constitutional issue like this, it's probably a good thing for their to be a Justice who for one reason or another is likely to be sympathetic to battered spouses.

But for all the bullshit being flipped like pancakes in this thread, NOBODY much has engaged the actual issue, and I still wanna know: if there is a 911 tape that says "he's trying to kill me", and (let's say) physical evidence of injury, why isn't Scalia right that if the caller refuses to testify, the tape can't be admitted?

I made up an example that he hit her with a brick, so her injury has lots of evidence, but that HE testifies that she was holding a gun on him at the time.

Why can't he compel her to testify?

And if she refuses (how can she do that without ending the case?), doesn't Scalia have the Constitution clearly on his side, that because he can't confront the witness against him, the prosecution can't use the tape?

My understanding is that he cannot be compelled to testify against himself, so it would be up to him on advice whether to take the stand as his own witness, and say: "She was gonna shoot me so I threw a brick at her." I suppose if he did, the prosecution could produce the tape to show that she thought you were trying to kill her with the brick.

But (in this narrow, and I'd guess fairly accurate hypothetical), he wouldn't take the stand in his own defense UNLESS she testified (when it would be fair, his word against hers) OR the tape was admitted.

If she doesn't testify BUT the tape is admitted, there is no way for him to refute the tape itself. It can't be cross-examined. It's evidence only of itself.

Wouldn't that violate his Constitutional rights?

So -- what IS the rest of this mess?

Somebody clear this up.

Posted by: theAmericanist on March 22, 2006 at 12:16 PM | PERMALINK
Oh, there is an objective measure of it and the conservative justices score highest, that is most judicially activist. The measure is overturning the will of Congress and Thomas does it the most followed by Kennedy and Scalia.

I disagree that that is an objective measure of what is supposedly meant by judicial activism, which is, notionally at least, opposed to originalism, not Congressional sovereignty.

Posted by: cmdicely on March 22, 2006 at 12:20 PM | PERMALINK

John Roberts, activist judge
The court's three most conservative members, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, opposed the ruling.
It was the first dissent written by Roberts, who joined the court at the end of September, and Justice David Souter sharply denounced it in writing for the majority. Under the dissent's view, he wrote, "The centuries of special protection for the privacy of the home are over." ..
Roberts said the ruling will provide protection on a "random and happenstance basis." He said it would protect a co-occupant who happens to be at the front door and objects, but not one napping or watching television in the next room.
"And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser," Roberts wrote.

Posted by: Mike on March 22, 2006 at 2:13 PM | PERMALINK
I disagree that that is an objective measure of what is supposedly meant by judicial activism, which is, notionally at least, opposed to originalism, not Congressional sovereignty.Posted by: cmdicely
When Republicans complain about "judicial activism," they invariably say judges are making laws. That clearly means that they think judges are accruing the legislative function to the judicial branch and implies overriding the legislative body. Posted by: Mike on March 22, 2006 at 2:23 PM | PERMALINK
When Republicans complain about "judicial activism," they invariably say judges are making laws.

I hear them say things like "putting their own preference ahead of the Constitution" more often; and I heat those making the charge advocate originalism, not Congressional sovereignty, as the alternative most often.

Now, frequently, the specific case involves something they charge takes over a legislative function, but at least as often it involves allowing the legislature some power the Republican thinks is denied (such as invoking an allegedly too broad interpretation of commerce clause power, and not striking down an act of Congress.) Accusations of "activism" tend to target courts allowing the legislature to do what in wants, if the challenge is brought under the takings clause, the second amendment, or a theory that the Congress has overstepped Commerce Clause powers; OTOH, they tend to target courts limiting legislative or executive power when the challenges arise under the 1st, 4th, (non-takings provisions of the) 5th, 6th, or 8th amendments, or the same rights as incorporated to the states through the 14th Amendment.

Now, its true, you do occasionally find rhetoric that seems to support Congressional soveriegnty, and often those people do you use the language of "activism" when challenging the Courts, but they seem, to me, far less common than the (rhetorically) "originalist" crowd that doesn't call for Congressional supremacy in general, preferring a broader interpretation of some Congressional (and executive) powers and a narrower interpretation of other Congressional powers, based on, notionally at least, their concept of what the founders intended (which is, of course, only coincidentally an exact match for their own policy preferences.)

Posted by: cmdicely on March 22, 2006 at 4:35 PM | PERMALINK

hank,
Thank you, I really did want an answer. The two statements seemed to me to be equivalent. I didn't know one would qualify for an exception but not the other. As you probably guessed, I am not a lawyer.

Posted by: thug on March 22, 2006 at 9:18 PM | PERMALINK

Art

Posted by: hgfhgfhgf on March 23, 2006 at 11:42 AM | PERMALINK

game

Posted by: hgfhgfhgf on March 23, 2006 at 11:51 AM | PERMALINK




 

 

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