TPM Reader JR, on the senior Obama official’s remark to the NYT that the hearsay rule is not “rooted in American values”:
I suppose about 1,000 lawyers have already said this: Apparently the Obama administration doesn’t believe that the Bill of Rights is rooted in American values. The confrontation clause of the Sixth Amendment states that an accused has the right to be confronted with the witnesses against him. That right includes the right to cross-examine them. You can’t cross-examine hearsay testimony because the witness isn’t there. That’s why it’s inadmissible. This isn’t some technicality. It’s the bedrock of the Anglo-American system of criminal justice. As the preeminent scholar of evidence, John Henry Wigmore, wrote 100 years ago, “cross-examination is the greatest legal engine ever invented for the discovery of truth.”
Getting Into the Legal Weeds Update: TPM Reader JU:
Your commentator re: hearsay and the Sixth Amendment is blowing it out of his backside. The hearsay admissibility rule has virtually nothing to do with the Sixth Amendment — well, to be more precise, although the two are broadly based on the same concerns, they are completely independent of each other.
To make a long story short, hearsay is inadmissible because there generally is no way to probe the credibility of the speaker. If I hear someone say “so-and-so ran the red light,” I am not allowed to testify as to that fact because the trier-of-fact cannot examine the speaker’s motivations in saying it. Is he the best friend of one of the litigants who is attempting to plant “evidence” to help his buddy? We don’t know. Does he harbor a secret grudge against the defendant? Again, we don’t know. And without this information, there is no way to weigh his “evidence” against the other evidence in the case.
There are, however, many types of evidence that would otherwise be hearsay that are admissible because the circumstances and/or context point towards credibility. …
The Sixth Amendment, however, is more concerned with the notion that “secret evidence” could be fabricated by the government in the absence of direct confrontation by the accused. It’s more a matter of equity than of truthfulness.
Wishing I Hadn’t Opened This Can of Worms Update: TPM Reader PM:
With all due respect to your reader JU, his understanding of the relationship between hearsay and the Confrontation Clause of the Sixth Amendment is badly outdated.
Decided in 2004, Crawford v. Washington, 541 U.S. 36 (2004), held that federal and state rules of evidence designed to admit reliable hearsay did not provide adequate Sixth Amendment protections. Crawford now requires courts to ask not only whether the hearsay was reliable, but whether an objective person in the declarant’s shoes would have expected his declaration to be used in a criminal investigation or prosecution. If the answer to the second question is yes, the Constitution requires cross-examination. That requirement is about to become clearer, and stronger, when the Supreme Court issues Melendez-Diaz v. Massachusetts later this summer.
From the sounds of it, the military tribunals would allow hearsay from other prisoners to be admissible against defendants. An objective person in the prisoners’ position would undoubtedly know that his or her statements were to be used in a proceeding against the defendant. That is precisely the sort of evidence that the Sixth Amendment protects against.
