tag:blogger.com,1999:blog-9532013.post6234907538269563095..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: SolemnityRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-9532013.post-18427177734159481242020-04-01T19:29:29.671-04:002020-04-01T19:29:29.671-04:00Haloo pak^^
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Pelayanan CS yang ramah dan Proffesional dan pastinya sangat aman juga bisa anda dapatkan di Sentanapoker.yessy haryantohttps://www.blogger.com/profile/16503331838637071246noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-8271379298539984192015-03-08T17:44:13.284-04:002015-03-08T17:44:13.284-04:00I take the point that the questioning was suggesti...I take the point that the questioning was suggestive to the extent that it assumed that somebody had done something to L.P. But as I understand it, at least from the preschool staff's point of view, it seemed clear that someone had done something to him; the "fell down" explanation did not seem credible. I think other evidence supports that. I don't think the defense ever contended that accident was an explanation for the injuries.<br /><br />That L.P. was bewildered goes to the question of whether what was going on was a testimonial encounter. It does not rob the evidence of all probative value. L.P. may well have been bewildered by what was happening and yet answered truthfully. The question of probative value comes down to this: Is the probability that L.P. would identify Dee as the assailant greater on the assumption that Dee did in fact hit L.P. than on the assumption that Dee did not do so. (This is simply the likelihood ratio.) I think a reasonable observer could plainly answer yes, and that the ratio is substantially greater than one. We oculd, of course, argue extensively over how different from one that ratio is. But that's what trials are for -- and that's why the defense ought to have an expert of its choice examine the child, to help in the assessment of that ratio. Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-18605874821547072932015-03-08T15:09:14.005-04:002015-03-08T15:09:14.005-04:00"(L.P.'s statement appears clearly not to..."(L.P.'s statement appears clearly not to have been the product of suggestion by anyone at the preschool.)"<br /><br />I don't agree with that and I don't think that Professor Fisher thinks that either. At oral argument he clearly states that he think that teachers were "fishing". He gets challenged on that by Ginsburg and then inexplicably backs down.<br /><br />The trial transcript clearly indicates the teachers suggested to the child. The first question out of the teachers mouth is "Who did this to you?" That's a suggestive interrogation because it requires the child to respond with name. It's true that it didn't require the child to respond with any specific name but by asking for a name it eliminates the possibility of an accident. It was without foundation because the teacher had no ascertained that the injuries had been caused by anyone rather than an accident. It's also a vague question because there is no indication in the transcript that the "this" in the question referred to the physical injuries. It is the teacher who draws the connection between the injuries and Clark, not the child.<br /><br />You stated earlier that a child as a source of evidence was important because such evidence could be probative but this case directly contradicts that. Indeed, even the teacher admitted that she felt that LP was "bewildered" by her questioning. That's her exact word, the child was "bewildered". How a bewildered three year old child can provide probative evidence of anything is beyond me. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-12106856250405552152015-03-07T09:43:04.764-05:002015-03-07T09:43:04.764-05:00I’m not sure I ever heard the word “scry” before –...I’m not sure I ever heard the word “scry” before – in any event, I had to look it up. For those as ignorant as I, it means to foretell the future, as with a crystal ball.<br /><br />I don't think the outlook is that there are going to be trials so there has to be evidence. I think it is more that there is evidence that may point in the direction of a crime having been committed, so should it be thrown away? I am nowhere near as pessimistic about the value of statements by very young children as is the anonymous commentator. At least when they are not the product of suggestion, such statements can be very valuable. (L.P.'s statement appears clearly not to have been the product of suggestion by anyone at the preschool.) Steve Ceci and I wrote on the subject at considerable length some years ago; I think our views were rather complex and nuanced. (We had not yet developed the quasi-witness approach, but our focus was in part on older children.) Here is a link:<br /><br />http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2827&context=clr <br /><br />One of the views we emphasized there was that in some cases a trial judge ought to determine, even though a child has asserted that abuse had occurred, that there is not sufficient evidence for a jury to reach that conclusion beyond a reasonable doubt. I continue to believe that this is a better approach than outright exclusion of the evidence. But it is not sufficient; if the evidence of the child's statement is admitted, the accused ought to have the right of out-of-court examination that we have advocated. (I would not characterize it as soft cross, because it is not attorney-directed, but I understand the label.)Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-43985678143496152872015-03-06T18:34:43.835-05:002015-03-06T18:34:43.835-05:00Professor Friedman:
I agree that a soft-cross is ...Professor Friedman:<br /><br />I agree that a soft-cross is better than nothing if one presumes that the child as a source of evidence must be accounted for in the legal system. However, I don't see the elimination of the child as a source of evidence as a "terrible loss for the adjudicative system". I think it would be a net gain. <br /><br />At a philosophical level I resist the logic that runs something like this: in order to prosecute crimes there has to be evidence, so it behooves the system to put as much evidence in front of the jury that it can and let them sort it out. Some sources of evidence can be so arbitrary, so capricious, so subject to manipulation that the source is irredeemably tainted. Under Daubert a judge would not allow the jury to hear evidence that was the result of scrying. For all intents and purposes crossing the child--soft or hard--is scrying. <br /><br />Despite millions of dollars and thousands of pages of testimony two different jury could not sentence Jodi Arias to death. There is a strong case that the adjudicative system is better off with less, not more sources of evidence. Trials will be quicker, costs will be less, and justice will be more speedy. It is sobering to think about all the other cases of domestic violence that could have been prosecuted but were not because of the costs generated by the Clark case.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-42068652341748258812015-03-06T16:49:30.958-05:002015-03-06T16:49:30.958-05:00I agree with the anonymous commentator that some v...I agree with the anonymous commentator that some very young children can't be witnesses, but I guess we mean different things by that. I agree they lack the capacity to be witnesses for purposes of the Confrontation Clause. I gather that the commentator thinks that beyond that they lack the capacity to generate evidence that is of use to the adjudicative system. But I believe, and the research shows, that their statements can be highly probative. Probative doesn't mean reliable -- it means that their statements can substantially alter the probability of a material proposition, as perceived by a reasonable trier of fact. It is a terrible loss for the adjudicative system to just throw that evidence away. But it would be fundamentally unfair to the accused to deny him any opportunity of examination, without which no individualized assessment of the value of the evidence can be made.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-51583788841463694292015-03-06T15:30:47.306-05:002015-03-06T15:30:47.306-05:00@paul yes, you do misconstrue my position.
The Co...@paul yes, you do misconstrue my position.<br /><br />The Confrontation clause requires confrontation unless some other rule of hearsay present at the time of the Founding applies. Confrontation means putting them on the stand. <br /><br />My disagreement with the Professor when it comes to very young children (~ five years or younger) is that I think that as a matter of psychological development they cannot be witnesses in any meaningful legal sense. I use the term witness here in its generic legal sense, not strictly testimonial. As I said before, the professor wants to save children as a "source of evidence" and I think that can't be done in any honorable fashion. I don't think shifting the problem to the DPC solves anything; that idea is misdirection. I don't think that a "soft cross" solves the problem either. To repeat for emphasis it is not simply that children can't testify--they can't witness. <br /><br /> Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-10548908960105230012015-03-05T03:13:39.748-05:002015-03-05T03:13:39.748-05:00I agree with Paul that the fact that the legal sys...<br />I agree with Paul that the fact that the legal system makes later use of a statement cannot be sufficient to bring a statement within the Confrontation Clause, because that would be true of all hearsay.<br /><br />There's no change in my underlying view, just a change in my perception of the value of solemnity as an organizing principle.<br /><br />Let's bear in mind that a core purpose of the Clause was to ensure that witnesses are brought into trial rather than testifying <i>ex parte</i> beforehand. So, was the person testifying beforehand? That's got to be determined on the basis of what the context was then.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-63120392825343537492015-03-04T23:56:19.850-05:002015-03-04T23:56:19.850-05:00Anonymous
Under your solemnity-premised-on-use de...Anonymous<br /><br />Under your solemnity-premised-on-use definition, every hearsay statement (testimonial/nontestimonial & reliable/unreliable) would be excluded from a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant.<br /><br />Did I misconstrue your position?paulnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-90891552271722084602015-03-04T20:06:28.451-05:002015-03-04T20:06:28.451-05:00I'm puzzled by this change in your view. It is...I'm puzzled by this change in your view. It is the legal system that creates the witness for without the law there would be no crime and hence no witness to a crime. So it shouldn't matter how solemn the occasion was when the statement was made; the solemnity of a statement is derived from the use to which it is put. It is the legal system itself that confers solemnity to the statement when it decides that the statement is going to used against someone.<br /><br />A person may attempt a joke on the stand while they are under sworn oath. That joke is still a legally solemn statement--a jury may interpret it in many different ways. A person can be as grave as they want to be and if the statement never enters court it is legally null. Anonymousnoreply@blogger.com