opinions, everybody's got one...
Saturday, February 02, 2002
hear ye hearsay? we hear hearsay
One of the most confusing set of rules of evidence are the ones that deal with hearsay. The concept of hearsay is a little difficult to explain (and understand), and it has more exceptions than swiss cheese has holes. And, sometimes there are certain types of hearings where the rules of evidence aren't always applied, or are applied in a way that makes you tilt your legal head.
Hearsay is "an out of court statement used to prove the truth of the matter asserted." What that means is that the courts want to use the best evidence available to them that they can - the evidence that is the most reliable. So when you have someone saying something, or making a statement by their words or gestures, you should have that person on the stand testifying as to what they said or meant. Having someone else on the stand testifying to the other person's statement is much less reliable, because you can't ask that someone else the motivations behind the statement, or cross examine them very effectively.
Hearsay doesn't even need to be words. It can be the act of another person. So, for instance, if I wanted to prove that it was raining on a certain day, and I brought someone in to testify that it was raining because they were looking out a window and saw someone opening an umbrella, that act of opening an umbrella would be hearsay. If the person testified that they saw raindrops, that would be direct testimony, and would bring very little possibility of objection.. But the umbrella testimony could be objected to under the hearsay rule.
Keep in mind that everytime an objection is made to a statement involving hearsay, there is the possibility to overcome that objection by referring to one of the exceptions. The exceptions are important because they can limit the way the "out of court statement" is interpreted by the judge or jury.
Hearsay can also be a written statement. You want the author in court to testify about what is written, if possible. Not having the author there means that you might have difficulties using the document to prove what is said within it. You might be able to use it to prove something else, such as what the state of mind its author was in at the time of writing. The rule of hearsay can be frustrating, and limiting, but it is valuable because its use produces good results. The idea is that such hearsay is inherently unreliable, and that allowing the testimony would violate our constitutional right to hear and question witnesses brought against us.
There are many exceptions to that rule. Most of the exceptions reflect circumstances where we might tend to give more weight to the words, such as the last few words of a dying person (if he knew he was dying), or a spontaneous excited utterance, or papers kept as normal business records.
In Delaware Civil Commitment Hearings, a doctor can testify that the social worker told her that the social worker heard a neighbor say another neighbor said that you were walking around naked in your back yard.
And this will be heard officially by the Court with only the doctor's testimony and nobody else available to ask about what happened. We aren't usually given a practical opportunity to question either the social worker nor the neighbors because the first time we hear about some of this is in the middle of a hearing. And these hearings usually only have one witness, the State Hospital's witness, a psychiatrist.
This is the only type of hearing that I am aware of that hearsay is so freely admitted, and makes up such a high percentage of the overall case. I recall my first hearing of this nature, almost 10 years ago now, where I jumped up to object to what I thought was inadmissible hearsay. It was that day that I learned that these types of Court hearings are mostly hearsay and opinion.
Since then, I have worked on thousands of mental commitment cases. There are a small number of attorneys and judicial officers who work on these matters. Once in a while an attorney who is not familiar with the process will appear for a hearing, usually as a favor to the client or a family member. I see the same bewildered expression on their faces that mine must have displayed years ago...thinking "this can't be right".
We conduct hearings that are not open to the public, not publicized, and rarely appealed. I think that everyone in the process does have the best interests of the mental patients at heart, but I also am continually reminded as to the vastly different manner in which these hearings are conducted as compared to "normal" cases.
This application of hearsay rules in civil commitment hearings serves the interests of the State by shortening the hearings and moving the calendar along more efficiently. And those are legitimate things.
But it does so at the cost of the rights of our citizens. These are our silent citizens though. They usually don't vote and nobody pays them any mind. We don't really want to know about the mentally ill. We just want them put away out of sight.
The Delaware Constitution guarantees a stronger constitutional right to remain silent than does the U.S. Constitution. The recent case cited below, in which the Delaware Supreme Court overturned a lower court decision, was decided based upon the right to remain silent and not because the defendant's request to talk with his mother in some way was the same as a request to talk with an attorney.
Robert W. Draper, the Defendant, repeatedly said to police that he wanted to talk to his mother before he talked to police. This left it ambiguous as to whether he was invoking his right to remain silent, according to the Delaware Supreme Court decision. Under the federal constitution, the police would have been authorized to continue to question him. But Delaware's Constitution requires that when it is ambiguous, the police must clarify the situation before they may proceed with interrogation. In this case, there was never a clarification and the police continued with interrogation until there was a confession. Therefore the State must go back and proceed without the confession. It wouldn't have made any difference if the Defendant had said, " I won't talk with you until after I have had a drink of water", the legal point is that he said he didn't want to talk. This really had nothing to do with his mother.
Now, if his mother was an attorney we would have a different kettle of fish.
Friday, February 01, 2002
miranda and mom
The Delaware Supreme Court ordered a retrial in a case in which police officers ignored a man's repeated request to talk to his mother before they took his confession. (opinion - pdf)
pay for placement = extortion?
A Texas diet pill manufacturer has brought a number of search engines to court, claiming that people who search for their products are being sent to competitors who pay for higher placement on the engines. This is a major challenge to the way that some search engines conduct business. The suit is requesting $440 million in damages. Named as defendants are: AltaVista, Overture, FindWhat and Kanoodle. One example, quoted in the article:
PerfectHealth4Life.com, for example, recently paid Overture 72 cents per click to be the top result for queries about Mark Nutritionals' Body Solutions, though it does not sell that product. It was followed in the rankings by Visionizin' America, a shopping site that paid 71 cents for each person sent to a sales pitch for its own brand of diet pills.If the suit is successful, it might trigger some extreme changes in the way that pay-for-placement search engines conduct business. Perhaps they will switch to a search method that returns results based upon relevance. You know, people might like that.
russell peterson revisited
Energy efficiency without pollutants is within reach, by Russell Peterson. A well written summation of the message Delaware's former governor began to present on Wednesday night at the University of Delaware.
shaggy dog tale
The following from the ever interesting InstaPundit.com:
After getting nailed by a Daisy Cutter, Osama makes his way to the pearly gates. There, he is greeted by George Washington. "How dare you attack the nation I helped conceive!" yells Mr. Washington, slapping Osama in the face.
legal essay contest
The Bench Bar Media Conference of Delaware is sponsoring a contest for high school students in 11th and 12th grades. The conference includes members of the media, the Delaware Judiciary, and the Delaware legal community.
The Bar-Bench-Media Conference of Delaware is sponsoring a 500-word essay contest on the importance of an independent judiciary and free press for 11th and 12th grade Delaware public high school students. Three students (one from each county) will win the opportunity to intern with a Delaware judge or justice, a Delaware lawyer, and the electronic and print media for one day each during a one week period. Each winner will also earn a $500 stipend. A maximum of one entry from each school will be considered. The three winning essays will be published in The Delaware Lawyer magazine, various Delaware newspapers and posted on the web site of the Bar-Bench-Media Conference hosted by the Supreme Court of Delaware.For more details, visit their Programs page.
- William Slawski
Enron Met Cheney Six Times in 2001, and Other Ecological Catastrophe's
It isn't easy to argue with some of the common sense that is coming out of Washington, D.C. these days. Especially the words we hear about lessening dependence upon foreign sources of oil. The University of Delaware was host to a presentation sponsored by a number of environmentally conscious organizations on Wednesday night, and it was interesting to hear viewpoints expressed over our nation's proposed energy plan.
Attached is a press release issued prior to the event, but unfortunately, it misses some of the issues raised during the forum held at the University. What it fails to capture is the plain spoken honesty and integrity of Floris Johnson, representing the Gwich'in people of Northern Alaska, who rely upon the wildlife of Alaska for much of their sustenance, and the inclusion of Tom Evans, former congressman for Delaware.
Floris Johnson spoke of life in Alaska for a people who live upon a land that they respect immensely. She talked about the beauty of Alaska, and the reverance her people hold for the land which they live upon. Gathering berries in the wilderness was rough but was also part of the happiest times she has lived. Many of her people rely upon the land to provide food, clothing, and shelter. She spoke of the elders who guided her people, and how they have given up on the Congressmen of Alaska, who are in favor of drilling in the Arctic Refuge.
As I listened to the words of Russell Peterson and Tom Evans, I wondered if their plain speech on this subject could be considered the words of the elders of Delaware. The words they used were filled with reasonableness and common sense.
Tom Evans mentioned the controversy over Vice President Dick Cheney, and Enron. He said that Mr. Cheney had met with Enron six times to discuss our country's energy policy, and that the Vice President should disclose information about the meetings, and about with whom he met. He said that legally, the Vice President was probably on firm ground, but from a public relations standpoint, he was causing himself and the President a considerable amount of damage.
Delaware Chapter of the Sierra Club
Delaware Audubon Society
Delaware Clean Air Council
Union of Concerned Scientists
Delaware Nature Society
University of Delaware Students for the Environment
National Environmental Trust
Former Delaware Governor, elected in 1968.
Past Chairman of the President's Council on Environmental Quality
Past Director of the Office of Technolgy Assessment of the U.S. Congress
President of the National Audubon Society (1979 - 1985)
Chaired the Center on the Biological Consequences of Nuclear War, working with Carl Sagan and Paul Ehrlich.
Served on the National Commission to investigate the nuclear accidnet at Three Mile Island.
Former member of Congress, representing Delaware from 1977-1983, and former co-chairman of the Republican National Committee.
Author of the Coastal Barrier Resources Act
Board member of the Alaska Wilderness League and the Coast Alliance.
Dr. John Byrne
Director of the Center for Energy and Environmental Policy.
Co-founder and co-executive director of the Joint Institute for a Sustainable Energy and Environmental Future.
Coordinator of the Delaware Climate Change Consortium (pdf). See their Action Plan (pdf) for an idea of what they do.
Southeastern Regional Coordinator for the Gwich'in Steering Committee.
Former Administrative Director for the Substance Abuse and Mental Health Clinic for the Council of Athabaskan Tribal Government in Fort Yukon.
Edwin L. Mongan, III
Manager, Environmental Stewardship for DuPont
Responsible for worldwide environmental management systems, including planning, performance measures, pollution prevention programs and goals, public reporting and auditing for DuPont. Represents DuPont on the Partnership for Climate Action, and is a member of the American Chemistry Council's Product Stewardship Team, and the National Pollution Prevention Roundtable.
The Press Release:
January 30, 2002
Delaware's Energy Future Debated at Public Energy Forum
Panel Features Former Governor Russell Peterson
Wilmington, Delaware -- Russell Peterson, Former Governor of Delaware; Dr. John Byrne, Director of UD Center For Energy and Environmental Policy; Edwin L. Mongan, Dupont's Manager of Environmental Stewardship; and Floris Johnson, representative of the Gwich'in people of Northern Alaska today participated in a public energy forum held at the University of Delaware's Student Center Bacchus Theatre. The discussion centered on America's energy future during this time of great concern over national security and a need to reduce our dependence on oil. The panelists presented reasonable energy solutions that would benefit Delaware and the nation.
Anerica uses a quarter of the world's oil, but has just 3 percent of known reserves. Sixty-five percent of reserves lie beneath the Persian Gulf States. The only way to end the economic and security risks caused by this imbalance is to reduce our oil dependence by increasing the use of renewable energies like wind and solar to meet our electricity demands, building better cars, and making better fuels. The panelists tonight outlined some of these alternatives to domestic drilling and highlighted Delaware's role in creating those alternatives.
"We are leaving an energy era with too many brownfields, blackouts and waste, and too little environmental and economic sense. Importantly, a new era is before us that will rely on environmentally benign sources such as solar energy and wind, and smart technologies such as high-efficiency vehicles and the fuel cell," said Dr. John Byrne, Director of University of Delaware's Center for Energy and Environmental Policy. "The implications for Delaware are great: we have the largest U.S. manufacturer of solar cells - Astropower - and the industry leaders in fuel cell development - W.L. Gore and DuPont. In this case, what's good for Delaware is good for the country and for our environment.
"DuPont has already recognized a need to position itself in a marketplace calling for an ever increasing demand for a smaller environmental footprint and thus has steered down a corporate path of sustainable development, establishing a set of tangible business goals that create both shareholder and societal value; goals which include using renewable energy sources to meet its global energy needs and achieving an increasing amount of revenues from non-depletable resources," said Edwin L. Mongan, DuPont Manager of Environmental Stewardship.
The alternative solutions to drilling on sensitive areas like the Arctic Wildlife Refuge have roots and important ties right here in Delaware. These practical steps include fuel economy standards and implementation of a nationwide Renewable Energy Portfolio Standard (RPS), which requires electricity producers to gradually increase the potion of electricity produced from renewable resources such as wind and solar.
"The Big Three U.S. auto companies promise to improve the fuel efficiency of their passenger trucks. They have been promising to do so for years. Our government should require them to meet a much higher efficiency in the near term. A fleet average of 40 miles a gallon is a good target," said Russell Peterson, former Delaware Governor.
By raising fuel economy standards to a technologically feasible 40 mpg for the entire fleet of new cars, SUV's and light duty trucks, the U.S. could save about one billion barrels of oil annually. Experts from industry, government, and academia have all estimated that average fuel economy of about 40 mpg is achievable for the entire U.S. fleet, including SUV's, minivans, and pickup trucks within 10 to 15 years using existing and emerging technologies. The potential oil savings from such an achievement represents 2.7 times the likely yield of economically recoverable oil from the Arctic National Wildlife Refuge. Delaware's large number of autoworkers would benefit from the investment in producing more efficient cars and trucks.
- William Slawski
Wednesday, January 30, 2002
Former Governor Russell Peterson
Here is the notice that was going around (and was just forwarded to me) about former Governor Russell Peterson speaking at the University of Delaware tonight:
What do Polar Bears, SUVs, and Windmills all have in Common?
They will be a part of the upcoming debate on Delaware and the United States Energy Policy.
Come participate in a public forum on?
Moving Towards a Responsible Energy Future
Taking place Wednesday, January 30, 2002 at 7:00 p.m., at the University of Delaware, Perkins Student Center's Bacchus Theater.
The focus of the discussion will be on the proper path that should be taken to ensure a safe and secure energy future for Delaware and the US for generations to come.
Keynote Speaker for the Event, Former Governor Russell Peterson, followed by a panel discussion with: Governor Peterson, Dr. John Byrne, Director of the University of Delaware's Center for Energy and Environmental Policy; Edwin L. Mongan, DuPont?s Manager of Environmental Stewardship; and Adeline Stevenson of the Gwich?in people of North Alaska. The evening will be M.C.'d by Joseph Otis Minott, Esquire, Executive Director of Clean Air Council.
How To Get There
From I-95 take exit 1B. Drive 2 miles North on 896 (S. College Ave.) towards Newark. Take a Right on Park Pl. At the next light turn left onto Academy Rd. The Perkins Student Center will be on the Right. Pay parking is available in the garage to the right of the Perkins Center, but there is also a free lot adjacent to Russell Hall on the left of Perkins. Once inside Perkins, follow signs to the set of stairs leading down to the Bacchus Theater. SEE YOU THERE!
Sponsored by: Sierra Club * Delaware Audubon Society * Delaware Clean Air Council * Alaska Coalition * Union of Concerned Scientists * Delaware Nature Society * UD Students for the Environment (S4E) * State PIRGs
For more information : Contact John M. Kearney, Clean Air Council, Staff Attorney, 302-691-0112
Tuesday, January 29, 2002
around the law
There's something sad about the "Spirit of Justice," and the "Majesty of the Law," being covered by curtains in the United States' Justice Department's Great Hall.
The definitive source for determining how to write a legal citation is commonly referred to as the bluebook becasue of the color of its binder. The actual name of the volume is the Introduction to Basic Legal Citation, and it is now available online.
USC Law School's Legal Resources on the Web includes a great collection of links to law related sites on the internet.
Orson Scott Card is one of today's premier writers of fantasy and science fiction. About fourteen years ago, he wrote a short story on the subject of censorship called Prior Restraint that looks at artistic expression, and its repression, in a unique manner.
I found out at today's City Council meeting for Newark, that former Delaware Governor Russell Peterson will be giving a speech on Wednesday evening at the Bacchus Theatre in the old University of Delaware Student Center, on the subject of the future of the United State's energy policy. I searched for the time of the presentation on the U of D website, but none was published. If I can locate it tomorrow, I will include it here. If you're in the Delaware area, and have an interest in the environment, this should be an interesting speech. Russell Peterson was the most environmentally conscious governor that Delaware has ever known, and he filled a number of other roles in striving to bring us a better world environmentally. He has been the head of the National Audobon Society, and served on a number of environmental posts in the White House, including chairman of the President's Council on Environmental Quality, and director of the Office of Technology Assessment of the United States Congress. He also served in leadership positions on a number of international environmental groups.
- William Slawski
Monday, January 28, 2002
oyez, oyez, oyez
This is the cry often used to open a court to session.
The American Heritage English Dictionary has this to say of the term:
The courtroom cry "Oyez, oyez, oyez," has probably puzzled more than one auditor, especially if pronounced "O yes." (Many people have thought that the words were in fact "O yes.") This cry serves to remind us that up until the 18th century, speaking English in a British court of law was not required and one could instead use Law French, a form of French that evolved after the Norman Conquest, when Anglo-Norman became the language of the official class in England. Oyez descends from the Anglo-Norman oyez, the plural imperative form of oyer, "to hear"; thus oyez means "hear ye" and was used as a call for silence and attention. Although it would have been much heard in Medieval England, it is first recorded as an English word fairly late in the Middle English period, in a work composed around 1425.
Yes, French was the language of choice in English Courts for a good number of years. It wasn't until the Statute of Pleading was passed in 1362 that English was permitted to be used by litigators. Though the statute became law, the use of french was still permitted, and documents were often filed with the court in french for at least three centuries after the passage of this statute.
Most statutes during that time were also written in french as an early Arms Control Act from 1383 shows.
If you read through the Many Variations of Trial by Combat, which is a description from Thomas, the Duke of Gloucester and constable under Richard II, on the Manner of Conduction of Judicial Duels, you'll see the use of "oyez, oyez, oyez" to begin a trial by combat (from Medieval Life & The Hundred Years War).
From the enlightening article Plain Language--The Arrows in Our Quiver, we find some other words that were derived from this use of french in English courts, including: action, appeal, attorney, claim, complaint, counsel, court, defendant, evidence, indictment, adjudge, judgment, jury, justice, parol, party, plaintiff, plea, sentence, sue, summon, and voir dire.
Will terms like "oyez, oyez, oyez" continue to be part of our legal system? The Statute of Pleadings was intended to allow the people being represented in court the opportunity to understand what was being said during legal proceedings. Plain english language used in courtrooms and legal documents today would go a long way towards the same result. But the tradition recitation of oyez three times will probably continue on as part of the historic tradition of the courts.
(Any discussion of the use of the term "oyez" should also point towards one of the best resources on the web about the US Supreme Court, which is the Oyez Project from Northwestern University.)
- William Slawski