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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

I'd rather not say anything, thanks.

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).

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.

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.

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.

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.

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.

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.

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

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.

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.)

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.

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.

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

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.

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??

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.

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.

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

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

Can we drown the damn things?

Paddy Whack sez: Dr. Morpheus is right.

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

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!!

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!

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.

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

Yankee Sailor:

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

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

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.

"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.

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.

"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.

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

"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

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."

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

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.

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
.

"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!

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!

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.

"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.

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.

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

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?

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.

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?

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

Line of the year!

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

Especially identity politics.

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.

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

"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.

Thanks, Kevin.

What the Supreme Court does is politics.

Main Entry: pol·i·tics
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.

"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.

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.

“Stop throwing the Constitution in my face. It’s 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.

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.

"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..?

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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!

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?

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?

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

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

nutball,

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

cn says: Scalia is using the Constitution.

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

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.

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

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.

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

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

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

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

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?

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.

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.

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.

"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?

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.

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?

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..

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.

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.

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.

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

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

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. It’s just a goddamned piece of paper!”

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.

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.

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.

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....

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.

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.

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.

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.

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.

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!"

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.

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.

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.

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?

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.

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.

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.

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.

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.

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*

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.

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

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.

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