Does Accused Murderer Have the Right to Confront His Victim During His Trial?

[BPSCG]

Seriously (http://www.latimes.com/news/nationworld/nation/la-na-scotus23apr23,0,522383.story):

Dwayne Giles, who shot and killed his ex-girlfriend in Los Angeles, asked the Supreme Court on Tuesday to overturn his murder conviction because he was denied the right to "confront" her in court.

"He never had a chance to cross-examine" the victim, said Marilyn G. Burkardt, a Los Angeles lawyer representing Giles. Burkardt called the prosecution's use of his ex's reports of his threats "highly prejudicial."

Though it sounds far-fetched, Giles' claim could prevail in the high court.

The Supreme Court took up of the case of Giles vs. California to test the outer limits of the so-called confrontation right in the 6th Amendment. It says, "In all criminal prosecutions, the accused shall enjoy the right. . . . to be confronted with the witnesses against him."

Until 2004, judges usually allowed jurors to hear "reliable" secondhand accounts of what witnesses said if the witness was not available. A police officer could report on what a missing witness had said.

But in a case that year, Justice Antonin Scalia insisted this "hearsay" violated the defendant's rights under the 6th Amendment. "Where testimonial statements are at issue, the only [test] of reliability . . . is the one the Constitution actually prescribes: confrontation," Scalia said at the time in Crawford vs. Washington.

Now, the court has to decide how strictly to apply that rule.

During Tuesday's argument, Scalia said the court should stick to a no-exceptions rule. He said Giles' rights were violated because a police officer had testified at his trial that the murder victim, Brenda Avie, had said Giles threatened to kill her.

On Sept. 5, 2002, two police officers were called to a house where Giles and Avie had been arguing. She had a bump on her forehead, and she told one officer Giles had pulled a knife on her and said he would kill her if he saw her with another man.

Four weeks later, Giles shot Avie six times at his grandmother's house, left her for dead and fled the scene. He was arrested, and when his case went to trial, he pleaded self-defense. He testified that Avie was aggressive and violent.

However, the officer's testimony helped seal his conviction for first-degree murder.

Burkardt argued that the use of the officer's testimony violated Giles' rights, and called for a new trial. "We are asking for a fair trial, which we did not get," she said. "California has eviscerated my client's right to a fair trial."

(...snip...)

Defending the conviction, Deputy State Solicitor Donald E. DeNicola said Giles had forfeited his right by killing the witness. He said the state relied on the "principle that no one may profit from wrongdoing."

[Ian Osborne]

I read the topic headline, and expected to thumb my nose at you for misrepresenting yourself. Then I find you meant exactly what you said... :jaw-dropp

I wonder if the world's going mad here, or an overpaid lawyer is wasting everyone's time and his client's money on a case which has no chance of success. I guess only time will tell...

[sophia8]

If the victim's testimony was in the form of an attested, contemporaneous, police report then it should stand. But if it was in the form of "Well, she said....", then it's hearsay, even if it's from a police officer.
But I am not a lawyer, not do I play one on TV.

[timhau]

Is this in any way different from a case where the wife kills the hubby and then claims abuse?

[BPSCG]

Interesting to see Scalia siding with the murderer. I guess as a strict constructionist, he has no choice; the sixth amendment says what it says.

[Jaggy Bunnet]

I assume that the "confront" point is made purely because their is a need to have grounds to get the case in front of the court.

However, the wider point in relation to hearsay does appear relevant - is it really wise to have a system that lets a "reliable" person (and my guess here is that the vast majority of people that get considered reliable are those that are testifying for the prosecution, not the defence) report what a missing witness said? What is to prevent the police inventing witnesses? How can the defence challenge this evidence?

I pretty much agree with Sophia - if there is a formal report that is one thing, if it is hearsay then it shouldn't have been before the court in the first place.

[Bikewer]

Reminds me of the Python episode were Cleese is trying to question the coffin.

[Psi Baba]

If it were possible to twist the law or the constitution in this way, it would have happened long before this. Someone is being an ass, and it ain't the law.

[fuelair]

I read the topic headline, and expected to thumb my nose at you for misrepresenting yourself. Then I find you meant exactly what you said... :jaw-dropp

I wonder if the world's going mad here, or an overpaid lawyer is wasting everyone's time and his client's money on a case which has no chance of success. I guess only time will tell...
The so called justice system is mad as done here anyway. Justice is determining guilt and penalty, NOT following a set of procedures that make it almost impossible to convict the smart guilty but also quite possible for the innocent to be found guilty by ommissions within the supposed legal systemWe have another thread where a person was sent to jail for 26 years when at least one lawyer knew he was innocent but "could not", due to idiot "ethics" rules, provide that information without being disbarred.

[Beerina]

He has the right to confront the police officer, I don't see what the problem is.


Seriously.


The piece of evidence is the police officer saying Brenda said so-and-so, not that Brenda said so-and-ao.

[richardm]

If he wins the right to a retrial can they charge him with interfering with a witness? ;)

[shuize]

Interesting to see Scalia siding with the murderer. I guess as a strict constructionist, he has no choice; the sixth amendment says what it says.


Scalia is actually pretty solid in supporting the enumerated constitutional rights. I remember reading cases in which he clashed with some of the more liberal justices on the issue of whether judges (rather than jurors) can act as fact finders when applying the federal sentencing guidelines. Scalia argued (correctly in my view) that any increase in punishment resulting from facts not proven to a jury beyond a reasonable doubt would be unconstitutional.

[IchabodPlain]

Wait...isn't the victim dead? How can one possibly expect to cross-examine a dead body in court?

[BPSCG]

Wait...isn't the victim dead?Yes. Most murder victims are.

How can one possibly expect to cross-examine a dead body in court?"...mmm...rrrgggh...brrrrainnnnnzzzz..."

http://www.thealmightyguru.com/Halloween/Monsters/Images/Zombie1.jpg

Please do not hotlink images.

[Madalch]

Will you STOP posting pictures of Anne Coulter on this forum!??!!

[Gate2501]

Will you STOP posting pictures of Anne Coulter on this forum!??!!

Way hotter than Coulter, sorry.

[IchabodPlain]

Yes. Most murder victims are.

"...mmm...rrrgggh...brrrrainnnnnzzzz..."

http://www.thealmightyguru.com/Halloween/Monsters/Images/Zombie1.jpg

How can that expectation be reasonable?

[BPSCG]

Will you STOP posting pictures of Anne Coulter on this forum!??!!Sorry, that's not Coulter. It's Hillary before she's hit the makeup room for her next town hall meeting. I guess the blonde hair threw you off.

[Jaggy Bunnet]

He has the right to confront the police officer, I don't see what the problem is.


Seriously.


The piece of evidence is the police officer saying Brenda said so-and-so, not that Brenda said so-and-ao.

The problem here is the circularity:

To make the evidence admissible, you need to have found the accused guilty.

For example, in a case where a man was accused of having murdered his wife, she had made statements and left letters claiming that he was planning to kill her. The Wisconsin Supreme Court ruled that "Julie Jensen's letter to police could be used as evidence in the trial if prosecutors could demonstrate there was sufficient evidence that Mark Jensen had murdered his wife, thus making it impossible for him to face Julie Jensen in court."

http://research.lawyers.com/New-Interpretations-of-Hearsay-Rules.html

So for the letter to be introduced as evidence in his trial for murder, there must first be sufficient evidence that he is guilty of murder. Which seems to me to make the whole thing pointless - if there is ALREADY sufficient evidence that he murdered her, why worry about the letter?

But IANAL so maybe someone who is can explain it to me?

[skeptical]

He has the right to confront the police officer, I don't see what the problem is.


Seriously.


The piece of evidence is the police officer saying Brenda said so-and-so, not that Brenda said so-and-ao.

Hearsay is any out of court statement made for the "truth of the matter asserted". If the substance, the content, of the statement being offered is offered to help establish an element of the crime or negate a defense, then it is being offered for the truth of the matter asserted, i.e. that the defendant claimed that he was going to kill her, so as to help negate a claim of self defense.

It is always possible that the statement is being offered for some other purpose, such as the state of mind of the person in question. For example, if there was a question as to whether the victim thought that her life was in danger, then a statement she made to that effect would not be hearsay if offered to show her state of mind and it was relevant. If this were the case, then your statement would be correct, as the officer could be questioned as to the circumstances surrounding the statement and not its content.

The additional twist here is that the hearsay is from the accuser, thus bringing in a direct tension with the confrontation clause. The history of decisions is interesting, but the most relevant for purposes of this discussion is Crawford v. Washington, a Scalia decision: http://en.wikipedia.org/wiki/Crawford_v._Washington

The operative issue is whether the accused out of court statement was "testimonial" in nature. In this case, it does appear that the statement was offered to show the truth of the matter in the statement, that the defendant had threatened to kill her, so it is likely testimonial in nature. In fact, the statements from the DA all but admit this and they fall back on the idea that the defendant waived his confrontation right.

If Scalia has his way, the case will be remanded for a new trial.

[skeptical]

Wait...isn't the victim dead? How can one possibly expect to cross-examine a dead body in court?

The question isn't whether one can confront a dead person. The question is what out of court statements made by the dead person, if any, are admissable into evidence.

The reason there is a question at all is because generally the US system does not allow out of court statements to be admitted for the truth of the statements if the person who made the statement is not available for cross examination. (for obvious reasons)

[Architect]

Scots law would consider the principle of corroboration in respect of such evidence, as it does in most evidencial matters.

[Irony]

The law says the person is allowed to confront the witness. Unless the victim was used as a witness in the case (which I seriously doubt, her being dead and all) then I don't see where it applies. The "witness" in this case is the officer who is repeating what he heard from the victim.

[skeptical]

The law says the person is allowed to confront the witness. Unless the victim was used as a witness in the case (which I seriously doubt, her being dead and all) then I don't see where it applies. The "witness" in this case is the officer who is repeating what he heard from the victim.

It applies if the statement is offered for the truth of the matter asserted, in which case the content of the statement is being offered for its truth by the decedent via proxy by the officer, hence hearsay rules would apply. See post #20.

[Dunstan]

The problem here is the circularity:

To make the evidence admissible, you need to have found the accused guilty.

[snip]

So for the letter to be introduced as evidence in his trial for murder, there must first be sufficient evidence that he is guilty of murder. Which seems to me to make the whole thing pointless - if there is ALREADY sufficient evidence that he murdered her, why worry about the letter?

But IANAL so maybe someone who is can explain it to me?

In a typical "whodunit" case, where the issue was whether the defendant killed the decdent, you'd be right. But according to the article quoted in the OP, the defendant admits to killing her; he's claiming self-defense. So it gets a little tricky. There's no dispute that he caused this witness to be unavailable to testify, but he may have been within his rights to do so.

And yes, this is a good example of why simplistic labels like "Scalia is conservative and therefore anti-defendant in criminal cases" don't always apply.

[Tsukasa Buddha]

Tch, we should just adopt Japan's justice system, where like 99% of the accused are convicted.

I don't really see why the officer couldn't testify that she had reported a death threat to them. Wouldn't he have the right to confront him, not the girl?

[linusrichard]

It applies if the statement is offered for the truth of the matter asserted, in which case the content of the statement is being offered for its truth by the decedent via proxy by the officer, hence hearsay rules would apply. See post #20.
Except that what Scalia's saying is that the hearsay rules don't apply. The hearsay rules contain a number of exceptions. I don't know California Rules of Evidence, but under the Federal Rules, I think the statement at issue could come in under FRE 803(1) (Present sense impression) or FRE 807 (Residual exception) with no problem.

ETA: This looks like a double hearsay problem. Hearsay within hearsay. It looks like the cop's statement about what the victim said is one level of hearsay, and the victim's statement of what the defendant said is another. But under FRE 801(d)(2)(A), the latter statement is not hearsay. Although, again, I don't know California Rules of Evidence.

The problem isn't with the rules of evidence; the problem is with the confrontation clause. After Crawford v. Washington, the defense seems to have a good argument. If I'm the state, I'm going to distinguish Crawford like this - in Crawford, if I'm reading it right, the state was seeking to introduce Sylvia's previous statements into evidence. In this case, they've got a witness testifying as to what the declarant said. The defendant can't cross-examine the declarant, but he can cross-examine the witness. Will that be enough of a difference to let the state prevail? I don't know - Crawford was 7-2, and the 2 in the dissent are no longer on the court. Should it? I kind of think so.

[skeptical]

Except that what Scalia's saying is that the hearsay rules don't apply. The hearsay rules contain a number of exceptions. I don't know California Rules of Evidence, but under the Federal Rules, I think the statement at issue could come in under FRE 803(1) (Present sense impression) or FRE 807 (Residual exception) with no problem.

The CA rules are pretty close to the FRE, close enough that I think the exception is applicable. But you're correct, Scalia is saying that the hearsay exceptions should not apply in this case, and should only apply in very limited situations, ala his arguments in Crawford.


The problem isn't with the rules of evidence; the problem is with the confrontation clause. After Crawford v. Washington, the defense seems to have a good argument. If I'm the state, I'm going to distinguish Crawford like this - in Crawford, if I'm reading it right, the state was seeking to introduce Sylvia's previous statements into evidence. In this case, they've got a witness testifying as to what the declarant said. The defendant can't cross-examine the declarant, but he can cross-examine the witness. Will that be enough of a difference to let the state prevail? I don't know - Crawford was 7-2, and the 2 in the dissent are no longer on the court. Should it? I kind of think so.

The defense is going to win if Scalia's argument convinces a majority of the court. Even if the statement could fall within a hearsay exception, Scalia's argument is that those exceptions should not apply in a case like this.

[skeptical]

Tch, we should just adopt Japan's justice system, where like 99% of the accused are convicted.

So, do you think that the Japanese police are so much more efficient that they only arrest guilty people, or do you think that perhaps quite a few innocent people are being convicted?

If we allowed the police to torture any suspect who is arrested, not only could we obtain a 100% conviction rate, we could obtain a 100% confession rate and completely eliminate the time and expense of trials. However, that would probably not be a system you would be in favor of I would imagine.


I don't really see why the officer couldn't testify that she had reported a death threat to them. Wouldn't he have the right to confront him, not the girl?

The girl's statement is hearsay if offered to prove the truth of the matter asserted, and would have to fall under an exception to be admissable. See post #20.

[qayak]

I agree with Scalia.

[linusrichard]

I don't really see why the officer couldn't testify that she had reported a death threat to them. Wouldn't he have the right to confront him, not the girl?

The girl's statement is hearsay if offered to prove the truth of the matter asserted, and would have to fall under an exception to be admissable. See post #20.

Two things:
1. The quote above your quote that you attributed to me was not said by me. No big deal, just pointing it out.
2. The statement is hearsay, but it easily falls within at least one hearsay exception, and is admissible under the rules. The only question is whether the exception is constitutional under the 6th amendment.

[Kevin_Lowe]

So, do you think that the Japanese police are so much more efficient that they only arrest guilty people, or do you think that perhaps quite a few innocent people are being convicted?

The Continental criminal court system, which does not allow most of the defence jiggery-pokery allowed in the English-based systems, convicts around 95% of people brought before it or so I am told.

95% to 99% of defendants being guilty seems like a fairly plausible figure.

[Jaggy Bunnet]

Except that what Scalia's saying is that the hearsay rules don't apply. The hearsay rules contain a number of exceptions. I don't know California Rules of Evidence, but under the Federal Rules, I think the statement at issue could come in under FRE 803(1) (Present sense impression) or FRE 807 (Residual exception) with no problem.

IANAL, but is it not FRE 804 that is relevant (Declarant unavailable) here rather than 803? If so, then present sense impression is irrelevant.

The 804 specifics are:

Former testimony - no.

Statement under belief of impending death - I think it is a stretch to suggest that she thought her death was "imminent" when the statement was made.

Statement against interest - no.

Statement of personal or family history - no.

Forfeiture by wrongdoing - circularity problem, to apply this means he has already been concluded to have killed her.

It doesn't appear to fall under any of the specifics in 804 which means that you are left with 807. I am less confident than you appear to be that it clearly falls within that exception, for example what are the "equivalent circumstantial guarantees of trustworthiness" that apply to the statement?

[linusrichard]

IANAL, but is it not FRE 804 that is relevant (Declarant unavailable) here rather than 803? If so, then present sense impression is irrelevant.
IANAL either, yet, but this is a mistake. 804 exceptions apply only when the declarant is unavailable, while 803 exceptions apply regardless of whether the declarant is unavailable. In other words, when the declarant is available, you can only use the 803 exceptions (or 807), but if the declarant is unavailable, you have 803 and 804 (and 807) to choose from.
It doesn't appear to fall under any of the specifics in 804 which means that you are left with 807. I am less confident than you appear to be that it clearly falls within that exception, for example what are the "equivalent circumstantial guarantees of trustworthiness" that apply to the statement?
Could be. I see 807 as kind of a catch-all for when the statement doesn't fit any of the specific exceptions, but it clearly doesn't make sense to exclude it. But your analysis might be better than mine. Doesn't matter - 803(1) works.

I don't know if you really have a circularity problem with 804(6). You don't have to have a jury find that the defendant made the witness unavailable beyond a reasonable doubt. A little research shows that at least four circuits have adopted a preponderance standard, at least one has adopted a clear and convincing standard, and none have apparently required beyond a reasonable doubt. Again, I don't know what the state of California would do.

You have a different problem, though: there's no indication that he killed her with the intention of making her unavailable for trial. In fact, it's impossible that he could have had that intention when he kiled her. So I agree with you that 804(6) is out.

[Suddenly]

Lets say you used to date someone unstable. After a breakup she goes around telling people that you have been threatening her. She turns up dead.

Does the need for limiting testimony at your murder trial about you threatening her to those that actually hear the threats make more sense now?

What if she had filed a police report about you threatening her and then died in a car accident having nothing to do with you. Should the second hand testimony now come in against you in the case about your alleged death threats?

There is no real difference here.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
When dealing with a Crawford confrontation clause issue the heresay exceptions in the rules of evidence do not apply. Before Crawford there was a "heresay exception" exception to the confrontation clause, but no more.

A witness being available is not relevant to a confrontation clause analysis. Statements from dead people are disallowed into evidence on a regular basis because of this, and in the US system a victim is a witness just like any other. Changing this because she was killed by the accused is circular logic in a big way. Also, being dead does not make you all of a sudden more credible.

I just don't see the problem here, unless one wants to skew the issue to suggest that the attorney wants to dig up the corpse... cross examination is impossible so her prior testimony doesn't come in. Basic constitutional law. Next case.

Of course, this won't stop the court from coming up with some result oriented "exception" that makes future application of the doctrine uncertain and complex....

[LostAngeles]

Interesting to see Scalia siding with the murderer. I guess as a strict constructionist, he has no choice; the sixth amendment says what it says.

Yes, but one would think that the Founding Fathers weren't total dumbasses and that there is clearly an implied, "provided the witness isn't dead."

Also, if he's so strict, where are my bear arms? *rimshot* GU-HAW!

Ok, no really. I guess we need to (ZOMFG) amend The Constitution in order to idiot-proof it.

[LostAngeles]

The Continental criminal court system, which does not allow most of the defence jiggery-pokery allowed in the English-based systems, convicts around 95% of people brought before it or so I am told.

95% to 99% of defendants being guilty seems like a fairly plausible figure.

I think the error involved with humans is substantially higher than 5-1%.

What I'd want to know is before bringing them before the court, how many are exonerated? Is evidence examined fully before hand so as to not, "waste time," trying the innocent?

As much as I dislike the way some defenses (oh hai O.J.) can twist things around, there's a very good reason defendants have so many rights. I'd refer you to United States History and the development of the Bill of Rights for the foundation of why we have these things, along with the right to not be forced to quarter soldiers in our home without our consent.

[ravdin]

It doesn't seem right to me that a dead person can be a witness at a trial. The murderer does have a point that he couldn't have had an opportunity to cross-examine her.

I can only guess from the article that it there was enough physical evidence to establish beyond any doubt that the convicted man really did kill the victim, and the police officer's secondhand testimony helped convince the jury that he did it with premeditated malice.

However, it's a flimsy pretext to overturn a conviction. Maybe if the police officer was the only witness, and his testimony was entirely based on what he claimed to hear the victim say.

It doesn't surprise me that the murderer would be contesting this technicality on appeal, but I do think it's interesting that the Supreme Court thinks this is worth hearing.

[Jaggy Bunnet]

IANAL either, yet, but this is a mistake. 804 exceptions apply only when the declarant is unavailable, while 803 exceptions apply regardless of whether the declarant is unavailable. In other words, when the declarant is available, you can only use the 803 exceptions (or 807), but if the declarant is unavailable, you have 803 and 804 (and 807) to choose from.

Could be. I see 807 as kind of a catch-all for when the statement doesn't fit any of the specific exceptions, but it clearly doesn't make sense to exclude it. But your analysis might be better than mine. Doesn't matter - 803(1) works.

If you are correct and 803(1) applies, then I would agree it would cover it.

I think 807 is intended as a catch all, but it is restricted by the various conditions, presumably to avoid a lawyer trying to justify every piece of evidence that fails all the other exemptions being admissible under s807.

I don't know if you really have a circularity problem with 804(6). You don't have to have a jury find that the defendant made the witness unavailable beyond a reasonable doubt. A little research shows that at least four circuits have adopted a preponderance standard, at least one has adopted a clear and convincing standard, and none have apparently required beyond a reasonable doubt. Again, I don't know what the state of California would do.

It is completely circular:

The evidence can only be admitted if he murdered her - therefore to introduce it into the trial to determine if he murdered her, you must ALREADY have decided that he did murder her.

You have a different problem, though: there's no indication that he killed her with the intention of making her unavailable for trial. In fact, it's impossible that he could have had that intention when he kiled her. So I agree with you that 804(6) is out.

That is the way I read that as well, which does seem to give a very odd result.

[linusrichard]

It is completely circular:

The evidence can only be admitted if he murdered her - therefore to introduce it into the trial to determine if he murdered her, you must ALREADY have decided that he did murder her.
Yes, but that's not circular. The trial is to determine whether or not he committed the crime, for the purpose of determining criminal liability, and imposing criminal punishment.

The evidentiary hearing is to determine whether or not he made her unavailable, for the purpose of determining the admissibility of evidence. If the judge, in determining the admissibility of the evidence, were only allowed to look to see if the defendant was convicted of murdering the declarant, then yes, it would be circular. But the burden is lower, and the judge is not bound by the rules of evidence in determining the admissibility of evidence. (!) See Rule 104.

So - prosecution wants to bring in the statement under 804(6). The judge says, okay, that only works if I decide that the defendant made her unavailable. What evidence can you show me that he did? And the prosecutor says here's this, and this, and this. And the judge looks at the evidence, and the burden in that jurisdiction, and says okay, I think that by (a preponderance of the evidence | clear and convincing evidence) he made her unavailable. So the evidence comes in. Then the jury gets to see the evidence, and determine whether or not he killed her beyond a reasonable doubt.

There may be a lot to criticize in the above scenario, but it's not circular.

The problem is, as I said, that he didn't kill her with the intent of making her unavailable.

That is the way I read that as well, which does seem to give a very odd result.

It's odd because it wasn't intended to be used in this situation. Think of it this way: Mobster Daniel is on trial for killing Victor. William saw the killing, and told Harriet about it, so the state wants to put William on the stand. So Daniel has William killed. If the state wants Harriet to testify about William's statement at the Victor murder trial under 804(6), they need only prove to the judge, by (preponderance of | clear and convincing) evidence, that Daniel had William killed. If they want to lock up Daniel for William's murder, they need to prove to a jury beyond a reasonable doubt that he did it. But they don't need to convict Daniel of William's murder before they use Harriet's testimony in the Victor murder trial. Clear?

Again, IANAL, and at least two or three people in this thread are, so I welcome correction if I'm wrong.

[linusrichard]

It is completely circular:

The evidence can only be admitted if he murdered her - therefore to introduce it into the trial to determine if he murdered her, you must ALREADY have decided that he did murder her.
Yes, but that's not circular. The trial is to determine whether or not he committed the crime, for the purpose of determining criminal liability, and imposing criminal punishment.

The evidentiary hearing is to determine whether or not he made her unavailable, for the purpose of determining the admissibility of evidence. If the judge, in determining the admissibility of the evidence, were only allowed to look to see if the defendant was convicted of murdering the declarant, then yes, it would be circular. But the burden is lower, and the judge is not bound by the rules of evidence in determining the admissibility of evidence. (!) See Rule 104.

So - prosecution wants to bring in the statement under 804(6). The judge says, okay, that only works if I decide that the defendant made her unavailable. What evidence can you show me that he did? And the prosecutor says here's this, and this, and this. And the judge looks at the evidence, and the burden in that jurisdiction, and says okay, I think that by (a preponderance of the evidence | clear and convincing evidence) he made her unavailable. So the evidence comes in. Then the jury gets to see the evidence, and determine whether or not he killed her beyond a reasonable doubt.

There may be a lot to criticize in the above scenario, but it's not circular.

The problem is, as I said, that he didn't kill her with the intent of making her unavailable.

That is the way I read that as well, which does seem to give a very odd result.

It's odd because it wasn't intended to be used in this situation. Think of it this way: Mobster Daniel is on trial for killing Victor. William saw the killing, and told Harriet about it, so the state wants to put William on the stand. So Daniel has William killed. If the state wants Harriet to testify about William's statement at the Victor murder trial under 804(6), they need only prove to the judge, by (preponderance of | clear and convincing) evidence, that Daniel had William killed. If they want to lock up Daniel for William's murder, they need to prove to a jury beyond a reasonable doubt that he did it. But they don't need to convict Daniel of William's murder before they use Harriet's testimony in the Victor murder trial. Clear?

Again, IANAL, and at least two or three people in this thread are, so I welcome correction if I'm wrong.

[skeptical]

The Continental criminal court system, which does not allow most of the defence jiggery-pokery allowed in the English-based systems, convicts around 95% of people brought before it or so I am told.

95% to 99% of defendants being guilty seems like a fairly plausible figure.

Given the number of people that we can prove beyond reasonable doubt through DNA are actually innocent of the crime they were convicted of, that seems like an awfully presumptive claim. Do you have any hard data to back that up?

Studies that have been done suggest the numbers of innocently convicted are at least 7%: http://forejustice.org/wc/mi_report_april04.html

Not to mention that 68% of the capital cases that were finalized were reversed on appeal.

Additionally, this is for capital cases, where the standards for counsel are typically higher, and the judge/jury most likely to be cognizant of scrupulously adhering to the "innocent till proven guilty" paradigm. The percentage is almost certainly higher for lower level crimes, and this does not even take into account the number of innocent people who accept plea bargains for months in prison instead of taking their chances with a vastly overworked PD and facing multiple years, perhaps decades behind bars.

From the link above:

"However that assessment stands in stark contrast with the much different conclusion that can be drawn from the estimates of wrongful convictions from 1964 to 2000, the lowest of which extrapolates to an average of over 19,000 cases during each of the 15 years covered by the report. Solid support for the pervasiveness of wrongful convictions indicated by those numerous estimates is provided by the findings of a study published in June 2000. That study - A Broken System: Error Rates in Capital Cases – found that 68% of the 4,578 capital cases finalized from 1973 to 1995 was reversed on appeal; that “7% of capital cases nationwide are reversed because the condemned person was found to be innocent;” and that on retrial, the defendant was given a lesser sentence in 82% of those reversed cases. So based on the findings of that extensive multi-year study that was overseen by the esteemed Professor James Liebman (co-author of Federal Habeas Corpus Practice and Procedure), if every one of the 14,295,000 criminal conviction in this country from 1989 through 2003 had been subjected to the same degree of appellate review as is a capital case, then 9,720,600 of those cases (68%) would have been reversed, with the result that 680,442 of the defendants (7%) would have been exonerated, and 7,970,892 of the defendants (82%) would have been re-sentenced to a lesser punishment."

[skeptical]

It doesn't seem right to me that a dead person can be a witness at a trial. The murderer does have a point that he couldn't have had an opportunity to cross-examine her.

I can only guess from the article that it there was enough physical evidence to establish beyond any doubt that the convicted man really did kill the victim, and the police officer's secondhand testimony helped convince the jury that he did it with premeditated malice.

He admitted he killed her, he said it was self defense. The officer's testimony was clearly intended to negate this defense.


However, it's a flimsy pretext to overturn a conviction. Maybe if the police officer was the only witness, and his testimony was entirely based on what he claimed to hear the victim say.

It is only flimsy if the court can say it was harmless error, that no reasonable juror would have been influenced by the testimony in such a way to make a conviction more likely. Given that the average person gives a lot of credence to the testimony of authority figures, this hardly seems like harmless error.



It doesn't surprise me that the murderer would be contesting this technicality on appeal, but I do think it's interesting that the Supreme Court thinks this is worth hearing.

The law of procedure is nothing but "technicalities", that doesn't mean they are not important. Violation of Miranda rights is a technicality, violation of right to counsel is a technicality, etc. Calling a rights violation a technicality trivializes serious procedural violations and buys into the popular misconception that courts are more interested in "technicalities" than justice. The rules we have are there for a reason, they are trying to determine the truth under often very severe factual limitations and to prevent sending innocent people to jail.

SCOTUS is hearing the case because there are still unresolved issues between hearsay exceptions and the confrontation clause.

[Kevin_Lowe]

Lets say you used to date someone unstable. After a breakup she goes around telling people that you have been threatening her. She turns up dead.

Does the need for limiting testimony at your murder trial about you threatening her to those that actually hear the threats make more sense now?

What if she had filed a police report about you threatening her and then died in a car accident having nothing to do with you. Should the second hand testimony now come in against you in the case about your alleged death threats?

There is no real difference here.

From the perspective of trying to get to a fact-based outcome it's relevant and available evidence, so it should be presented in court.

In this screwed-up system we're currently obliged to use, well, there's an argument to be made that excluding the evidence in question is the legally correct decision. That doesn't mean that the legally correct decision isn't idiotic and actively harmful to what the goals of a criminal justice system should be.

I think the error involved with humans is substantially higher than 5-1%.

Evidence?


What I'd want to know is before bringing them before the court, how many are exonerated? Is evidence examined fully before hand so as to not, "waste time," trying the innocent?

I suspect that is a significant part of it. Under a system where guilty people are highly likely to be convicted there's no incentive to throw cases at the wall willy-nilly and see which ones stick.


As much as I dislike the way some defenses (oh hai O.J.) can twist things around, there's a very good reason defendants have so many rights. I'd refer you to United States History and the development of the Bill of Rights for the foundation of why we have these things, along with the right to not be forced to quarter soldiers in our home without our consent.

I'm calling this the appeal to history fallacy. Whether or not these systems are the product of history is irrelevant to whether or not they are counterproductive.

[LostAngeles]

Evidence?

I said, "I think," you said that it was the case that 99-95% of them were certainly guilty or at least heavily implied that they were certainly guilty. I doubt you could back that up now, could you.

I suspect that is a significant part of it. Under a system where guilty people are highly likely to be convicted there's no incentive to throw cases at the wall willy-nilly and see which ones stick.

So you're applauding a system you don't know much about? You didn't get any actual evidence of how good it was?

I'm calling this the appeal to history fallacy. Whether or not these systems are the product of history is irrelevant to whether or not they are counterproductive.

Actually, no it's not.

Before the revolution, the dissidents and pamphlet writers were imprisioned without cause, charged with bogus crimes and the like. The protections exist to protect the people from potential tyranny of the government. Would you say today that we don't need them? That as a people we no longer have to fear the corrupting effects of power?

But y'know, way to dismiss it right out of hand.

[Kevin_Lowe]

I said, "I think," you said that it was the case that 99-95% of them were certainly guilty or at least heavily implied that they were certainly guilty. I doubt you could back that up now, could you.

So you're applauding a system you don't know much about? You didn't get any actual evidence of how good it was?


It's a serious philosophical problem, because there is no way of knowing for certain how many false positives or false negatives the court system creates. Occasionally a false positive gets overturned when new evidence shows up, but that's not a great deal of help because we don't know what proportion of false positives get overturned this way.

People with a vested interest in the adversarial system like to think that 50% of the people police bring to trial are guilty, people with a vested interest in the inquisitorial system like to think it's 95%-99%.

I lean towards the pro-inquisitorial side because I have this idea that if you make it your first priority to find the truth, and make it everyone's job to help find the truth, you are fairly likely to find the truth. As opposed to the adversarial idea that if you appoint two lawyers to hide the truth as much as possible, appoint a judge to play referee, and appoint nobody to actually try to find the truth, then the truth will miraculously emerge like Venus on the half shell. That's never worked in a forum thread and I doubt it works any better in a verbal exchange, even if that verbal exchange takes place in a courtroom.


Actually, no it's not.

Before the revolution, the dissidents and pamphlet writers were imprisioned without cause, charged with bogus crimes and the like. The protections exist to protect the people from potential tyranny of the government. Would you say today that we don't need them? That as a people we no longer have to fear the corrupting effects of power?

But y'know, way to dismiss it right out of hand.

Suddenly linked to quite a good article that argued that some of those protections, like the ability to avoid testifying at your trial, were made up in order to spike the wheels of prosecutors trying to nail people for political or religious crimes. In other words they were explicitly designed to make it hard to get at the truth.

However the problem is that they sabotaged the whole legal system in order to protect a tiny subset of defendants and called it progress. The need to protect Catholics and Protestants from each other has long since passed but we're still extending the absurd prohibition against self-incrimination to all defendants.

The fairy story that these various "rights" to obstruct the truth-finding process protect us from government tyranny is cute but it's mostly faith-based and doesn't survive any attempt to explicate in detail how all of the various truth-obstructing mechanisms individually protect us from tyranny. There's also the observable fact that the Continental European nations have not fallen into tyranny despite their iniquitous habit of having their criminal courts try to find out the truth, which seems to indicate that at best these safeguards against tyranny are like a magic rock to protect us from tigers, and at worst they are an acute social ill.

[Travis]

In truth the police report does not in and of itself prove or disprove the claim of self defense. Obviously the prosecutors presented it and played if off as proof of the violent nature of the boyfriend. But does it prove that? No. It could just as easily mean the girlfriend was a paranoid psychotic and she eventually did snap and did assault her boyfriend because she was delusional and he actually did act in self defense.

How do you know which it is? You can't, now, because she is dead. Under a cross examination it might be possible to determine the validity of the police report and the soundness of her mind. However she is dead and as such the validity of her past statement is open to speculation and for that reason, the fact that we can't know her state of mind, this should have never been allowed as evidence. I agree he needs a new trial.

[linusrichard]

The fairy story that these various "rights" to obstruct the truth-finding process protect us from government tyranny is cute but it's mostly faith-based and doesn't survive any attempt to explicate in detail how all of the various truth-obstructing mechanisms individually protect us from tyranny.
‘The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

‘The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

‘Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.

‘All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants. The sheriff of the county of the crime admitted that he had heard of the whipping, but averred that he had no personal knowledge of it. He admitted that one of the defendants, when brought before him to confess, was limping and did not sit down, and that this particular defendant then and there stated that he had been strapped so severely that he could not sit down, and, as already stated, the signs of the rope on the neck of another of the defendants were plainly visible to all. Nevertheless the solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony.
Brown v. Mississippi, 297 U.S. 278 (1936) (emphasis added).

The Supreme Court, trying to obstruct the truth-finding process as usual, reversed the convictions and required the confessions to be thrown out.

[LostAngeles]

It's a serious philosophical problem, because there is no way of knowing for certain how many false positives or false negatives the court system creates. Occasionally a false positive gets overturned when new evidence shows up, but that's not a great deal of help because we don't know what proportion of false positives get overturned this way.

People with a vested interest in the adversarial system like to think that 50% of the people police bring to trial are guilty, people with a vested interest in the inquisitorial system like to think it's 95%-99%.

I lean towards the pro-inquisitorial side because I have this idea that if you make it your first priority to find the truth, and make it everyone's job to help find the truth, you are fairly likely to find the truth. As opposed to the adversarial idea that if you appoint two lawyers to hide the truth as much as possible, appoint a judge to play referee, and appoint nobody to actually try to find the truth, then the truth will miraculously emerge like Venus on the half shell. That's never worked in a forum thread and I doubt it works any better in a verbal exchange, even if that verbal exchange takes place in a courtroom.



Suddenly linked to quite a good article that argued that some of those protections, like the ability to avoid testifying at your trial, were made up in order to spike the wheels of prosecutors trying to nail people for political or religious crimes. In other words they were explicitly designed to make it hard to get at the truth.

However the problem is that they sabotaged the whole legal system in order to protect a tiny subset of defendants and called it progress. The need to protect Catholics and Protestants from each other has long since passed but we're still extending the absurd prohibition against self-incrimination to all defendants.

The fairy story that these various "rights" to obstruct the truth-finding process protect us from government tyranny is cute but it's mostly faith-based and doesn't survive any attempt to explicate in detail how all of the various truth-obstructing mechanisms individually protect us from tyranny. There's also the observable fact that the Continental European nations have not fallen into tyranny despite their iniquitous habit of having their criminal courts try to find out the truth, which seems to indicate that at best these safeguards against tyranny are like a magic rock to protect us from tigers, and at worst they are an acute social ill.

Aside from Linus linked to:

I'm not familiar with the court system of the European Nations. Do you have a link(s) handy so I can see what rights they do and do not give defendants so I can compare please?

[Kevin_Lowe]

Aside from Linus linked to:

I'm not familiar with the court system of the European Nations. Do you have a link(s) handy so I can see what rights they do and do not give defendants so I can compare please?

Interesting question, and I don't have a handy site that specifically enumerates the rights they do and do not give defendants.

This page seems reasonably good:

http://law.jrank.org/pages/7663/Inquisitorial-System.html

Although lacking in details. The wikipedia page is pretty similar in terms of content:

http://en.wikipedia.org/wiki/Inquisitorial_system

It's worth noting though that the prosecution attorney's ability to steer the trial is curtailed as sharply as the defence attorney's. So it's not a simplistic matter of stripping away the defendant's rights in order to get more convictions. Both partisan sides are given significantly less power in the inquisitorial system.

ETA:

Brown v. Mississippi, 297 U.S. 278 (1936) (emphasis added).

The Supreme Court, trying to obstruct the truth-finding process as usual, reversed the convictions and required the confessions to be thrown out.

I'm not sure what point you thought you were making. Possibly the term "inquisitorial system" conjured up images of thumbscrews in your mind and you leapt to the conclusion that torturing people to elicit false confessions was routine and tolerated in places like France and Germany. That would be an unusually stupid conclusion to leap to, but I can't see how else you ended up posting what you posted.

[linusrichard]

I'm not sure what point you thought you were making. Possibly the term "inquisitorial system" conjured up images of thumbscrews in your mind and you leapt to the conclusion that torturing people to elicit false confessions was routine and tolerated in places like France and Germany. That would be an unusually stupid conclusion to leap to, but I can't see how else you ended up posting what you posted.

I'm glad that, given the choice between me being stupid and ... nothing else, you still give me the benefit of the doubt. I appreciate that - not everyone on internet message boards is so civil!

No, actually, I wasn't making any comment at all about France or Germany or the inquisitorial system. I was referring to your comment - I'll quote it again:
The fairy story that these various "rights" to obstruct the truth-finding process protect us from government tyranny is cute but it's mostly faith-based and doesn't survive any attempt to explicate in detail how all of the various truth-obstructing mechanisms individually protect us from tyranny.
And then I was giving an "attempt to explicate in detail how [one] of the various truth-obstructing mechanisms individually protect us from tyranny." You saw the tyranny, right? And you read the last part about how the Supreme Court threw out the confessions? And one of the great things about it is, after that decision, police didn't have any incentive to torture suspects anymore, because they knew they wouldn't be able to use the confession. Is that clearer?

Now, if you're arguing that we don't have to have these protections - that other protections would work as well or better - that's fine. I don't know what the protections are on the Continent. I would suspect they're actually very similar to ours, but tailored to an inquisitorial system. But for now, I'd have to plead ignorance. (EDIT: Oh! You gave links. Well done - I'll read them. /EDIT) But if you're arguing that our protections don't protect us from government tyranny, I'd have to disagree.

[linusrichard]

Excerpts from Kevin_Lowe's links:
In most inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial.
Why, if the goal is to find the truth, rather than to protect the rights of the accused, would a criminal defendant not be required to answer questions about the crime? It sounds to me like those designing the modern, more refined version of the inquisitorial system, recognized value in one of the features of the adversarial system, and imported it, even though it doesn't seem to really fit. There could be other explanations, of course.
[P]rosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system.
I'm curious about this - it's not that I don't believe it, but I want an explanation as to why prosecutors don't have a personal incentive to win convictions for political gain in an inquisitorial system.

[Kevin_Lowe]

I'm glad that, given the choice between me being stupid and ... nothing else, you still give me the benefit of the doubt. I appreciate that - not everyone on internet message boards is so civil!

No, actually, I wasn't making any comment at all about France or Germany or the inquisitorial system. I was referring to your comment - I'll quote it again:

And then I was giving an "attempt to explicate in detail how [one] of the various truth-obstructing mechanisms individually protect us from tyranny." You saw the tyranny, right? And you read the last part about how the Supreme Court threw out the confessions? And one of the great things about it is, after that decision, police didn't have any incentive to torture suspects anymore, because they knew they wouldn't be able to use the confession. Is that clearer?

Now, if you're arguing that we don't have to have these protections - that other protections would work as well or better - that's fine. I don't know what the protections are on the Continent. I would suspect they're actually very similar to ours, but tailored to an inquisitorial system. But for now, I'd have to plead ignorance. (EDIT: Oh! You gave links. Well done - I'll read them. /EDIT) But if you're arguing that our protections don't protect us from government tyranny, I'd have to disagree.

There's a difference between "rights" and "rights to interfere with the truth-gathering process". The rights to confront your accuser and see the prosecution's evidence, for example, (usually) do not get in the way of discovering what actually happened. The right not to answer questions at all, the right to have certain kinds of relevant information kept from the jury, the right to have your lawyer badger witnesses and so on all do get in the way.

Excerpts from Kevin_Lowe's links:

Why, if the goal is to find the truth, rather than to protect the rights of the accused, would a criminal defendant not be required to answer questions about the crime? It sounds to me like those designing the modern, more refined version of the inquisitorial system, recognized value in one of the features of the adversarial system, and imported it, even though it doesn't seem to really fit. There could be other explanations, of course.

It's an interesting question, and I'm not even sure exactly where they would draw the line between "about the crime" and "not about the crime". If one was pleading innocence, then presumably to be consistent one would have to maintain that no crime was committed so then everything would seem to be up for grabs. I wish they gave more details of how the system played out in practise.


I'm curious about this - it's not that I don't believe it, but I want an explanation as to why prosecutors don't have a personal incentive to win convictions for political gain in an inquisitorial system.

Actually the US system is the only one I know of where prosecutors are elected officials who have an incentive to grandstand in order to keep their jobs.

I do imagine however that with a 95%+ conviction rate there's isn't the same incentive to struggle to maximise that rate, and it's a lot harder for the public to tie the verdict to the actions of the prosecutor if the prosecutors are kept to the sidelines of the court and the judge gets all the attention.

[linusrichard]

There's a difference between "rights" and "rights to interfere with the truth-gathering process". The rights to confront your accuser and see the prosecution's evidence, for example, (usually) do not get in the way of discovering what actually happened.
It is easy to come up with a scenario in which the right to confront your accuser gets in the way of discovering what actually happened.
The right not to answer questions at all, the right to have certain kinds of relevant information kept from the jury, the right to have your lawyer badger witnesses and so on all do get in the way.
What is this "right to have your lawyer badger witnesses"? Do you mean cross-examination or something else? If you mean cross-examination, how does the right to cross-examination get in the way of discovering the truth? More questions --> more answers --> more truth.

Actually the US system is the only one I know of where prosecutors are elected officials who have an incentive to grandstand in order to keep their jobs.
If that's true, that's not a function of an adversarial system, but a function of the US system. The US adversarial system would work just as well with appointed prosecutors, and an inquisitorial system could work just fine with elected prosecutors.
I do imagine however that with a 95%+ conviction rate there's isn't the same incentive to struggle to maximise that rate, and it's a lot harder for the public to tie the verdict to the actions of the prosecutor if the prosecutors are kept to the sidelines of the court and the judge gets all the attention.
I'm skeptical. Any place prosecutors are elected, they're going to want to do something to distinguish themselves from challengers. The natural thing is to show that they're good at their job. If their job is to put away criminals, whether they're working within an inquisitorial or adversarial system, a higher conviction rate will give them more to brag about. So it seems to me that any elected prosecutor is going to have an incentive to get convictions.

[Kevin_Lowe]

It is easy to come up with a scenario in which the right to confront your accuser gets in the way of discovering what actually happened.

What is this "right to have your lawyer badger witnesses"? Do you mean cross-examination or something else? If you mean cross-examination, how does the right to cross-examination get in the way of discovering the truth? More questions --> more answers --> more truth.

Apart from the use of cross-examination as a way of deterring criminal complaints (most notoriously used in rape cases) which is fairly unsubtle, the whole skill of cross-examination is to make sure that you elicit the kinds of responses from the witness that support your case and make sure you do not elicit the kinds of response that undermine your case. That's very different to eliciting the truth.


If that's true, that's not a function of an adversarial system, but a function of the US system. The US adversarial system would work just as well with appointed prosecutors, and an inquisitorial system could work just fine with elected prosecutors.

Actually I think electing prosecutors is just daft, but you are entitled to your opinion.


I'm skeptical. Any place prosecutors are elected, they're going to want to do something to distinguish themselves from challengers. The natural thing is to show that they're good at their job. If their job is to put away criminals, whether they're working within an inquisitorial or adversarial system, a higher conviction rate will give them more to brag about. So it seems to me that any elected prosecutor is going to have an incentive to get convictions.

Maybe so, which might be why the USA is unique to the best of my knowledge in this particular respect.

Do you actually know of any nation with an inquisitorial justice system that elects prosecutors, or are you discussing an entirely hypothetical problem?

[Jaggy Bunnet]

Maybe so, which might be why the USA is unique to the best of my knowledge in this particular respect.

And which is why this is only a valid criticism of the specific US system and not an argument against adversarial systems generally.

[Jaggy Bunnet]

Yes, but that's not circular. The trial is to determine whether or not he committed the crime, for the purpose of determining criminal liability, and imposing criminal punishment.

The evidentiary hearing is to determine whether or not he made her unavailable, for the purpose of determining the admissibility of evidence. If the judge, in determining the admissibility of the evidence, were only allowed to look to see if the defendant was convicted of murdering the declarant, then yes, it would be circular. But the burden is lower, and the judge is not bound by the rules of evidence in determining the admissibility of evidence. (!) See Rule 104.

So - prosecution wants to bring in the statement under 804(6). The judge says, okay, that only works if I decide that the defendant made her unavailable. What evidence can you show me that he did? And the prosecutor says here's this, and this, and this. And the judge looks at the evidence, and the burden in that jurisdiction, and says okay, I think that by (a preponderance of the evidence | clear and convincing evidence) he made her unavailable. So the evidence comes in. Then the jury gets to see the evidence, and determine whether or not he killed her beyond a reasonable doubt.

There may be a lot to criticize in the above scenario, but it's not circular.

Except that, if the jury understand that the system works as you have explained, they can determine, from the fact that the judge has allowed the evidence to be introduced, that the judge believes the accused is guilty of the crime he is accused of.

So it is not simply the admission of the evidence that you need to consider, it is also what allowing that evidence to be admitted tells the jury about the opinion of the judge.

The problem is, as I said, that he didn't kill her with the intent of making her unavailable.

Agreed

It's odd because it wasn't intended to be used in this situation. Think of it this way: Mobster Daniel is on trial for killing Victor. William saw the killing, and told Harriet about it, so the state wants to put William on the stand. So Daniel has William killed. If the state wants Harriet to testify about William's statement at the Victor murder trial under 804(6), they need only prove to the judge, by (preponderance of | clear and convincing) evidence, that Daniel had William killed. If they want to lock up Daniel for William's murder, they need to prove to a jury beyond a reasonable doubt that he did it. But they don't need to convict Daniel of William's murder before they use Harriet's testimony in the Victor murder trial. Clear?

Absolutely. I understand why it is there.

And the circularity issue is not a problem in this scenario - the judge's belief that the accused killed William does not have a direct impact on the question of whether he killed Victor, which is what the jury have to decide.

The difficulty in the original case is that effectively the judge admitted that statement in the William murder trial. In other words the judge decided that Daniel was guilty when he agreed to admit the evidence that was used as the basis for determining Daniel's guilt. And a well informed juror would know that.

Again, IANAL, and at least two or three people in this thread are, so I welcome correction if I'm wrong.

It would be good to hear some informed opinion, rather than my flounderings.

[a_unique_person]

Seriously (http://www.latimes.com/news/nationworld/nation/la-na-scotus23apr23,0,522383.story):

If he really wants it, I guess it could be arranged.

[linusrichard]

Apart from the use of cross-examination as a way of deterring criminal complaints (most notoriously used in rape cases) which is fairly unsubtle, the whole skill of cross-examination is to make sure that you elicit the kinds of responses from the witness that support your case and make sure you do not elicit the kinds of response that undermine your case. That's very different to eliciting the truth.
If the other lawyer's doing her job, all of the responses that undermine your case have already been elicited. As far as cross-examination as a tool of harassment - yes, that's a bad thing, and we should have (and to some extend do have) rules to combat that. It doesn't mean that cross-examination, used properly, serves to obstruct the truth.
Actually I think electing prosecutors is just daft, but you are entitled to your opinion.
I actually tend to agree with you. Same with judges too. All I was saying is that your criticism doesn't seem to be a criticism of the adversarial system, but a criticism of electing prosecutors.
Do you actually know of any nation with an inquisitorial justice system that elects prosecutors, or are you discussing an entirely hypothetical problem?
Entirely hypothetical. My point is, I don't think elected prosecutors are inherent in an adversarial system, and I don't think unelected prosecutors are inherent in an inquisitorial system. If it happens to be the case that all inquisitorial system jurisdictions have unelected prosecutors, that doesn't make unelected prosecutors a feature of inquisitorial systems.

And depending on what you mean by "prosecutor," most US prosecutors are not elected.