Morning Links

Tuesday, February 24th, 2009
  • This is kind of awesome.
  • The NY Times editorializes on the NAS forensics study.
  • “…while fifty per cent of the libertarians would agree to surgery giving them a prosthetic tail if they were paid enough to do so.”
  • Dark-skinned Asian man “randomly” stopped 21 times in New York City subway.
  • Barney Frank to reintroduce bill repealing the online gambling ban.
  • In the wake of the Ryan Frederick case, the Virginian-Pilot looks at the use of jailhouse informants who testify to having heard confessions. This sort of testimony has always struck me as so absurd that it should rarely be allowed. Who just starts confessing to crimes they haven’t yet been tried for to people they’ve just met in a jail cell? As often as informants testify, you’d think it happens fairly often.
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  • 33 Responses to “Morning Links”

    1. #1 |  Aaron | 

      nytimes link is broken. Do you mean http://www.nytimes.com/2009/02/21/opinion/21sat2.html from three days ago?

    2. #2 |  Stormy Dragon | 

      More specifically, why aren’t jailhouse informants considered hearsay evidence?

    3. #3 |  Brandon Bowers | 

      Interesting. From one side you hear that libertarians are merely fringe lunatics who aren’t worth paying attention to, and from the other side you get the same kind of propagandist shit the left and right continually fling at each other. Does the fact that the libertarians have been absolutely right about everything so far mean that they’re worth attacking now? Is that progress? And where did he that picture? Did libertarians do that? How much did they get paid?

    4. #4 |  Lloyd | 

      ‘Conservatives’ bloviate about ‘family values’, and are gleeful when their gov’t bombs little brown families out of their beds overseas.
      ‘Liberals’ go on about how compassionate they are, and pretend not to notice that their president and congress kill the little brown folk the same as the ‘Conservative’ Republicans.
      ‘Libertarians’, on the other hand don’t care if people put safety pins in their palms.
      Those nutty libertarians!

    5. #5 |  Bill | 

      I was all ready to go sign up for the tail surgery, but then I read in the article that it would only be 2 inches long. If I’m going to get a tail, I want a giant, flagpole-swinging, miscreant-grabbing, tap-you-on-the-shoulder-from-behind-while-looking-you-in-the-eye TAIL!

      Let the “what’s he compensating for” jokes begin.

    6. #6 |  Burdell | 

      #2: The hearsay rule has so many exceptions that it is virtually worthless.

    7. #7 |  parse | 

      Who just starts confessing to crimes they haven’t yet been tried for to people they’ve just met in a jail cell? As often as informants testify, you’d think it happens fairly often.

      When I spent the night in jail once, I was approached by a guy who appeared to be genuinely concerned for my welfare, warning not to speak to others in the cell if I didn’t know them, offering a peanut butter sandwich, etc. Making small talk, he very gently pushed the subject of the conversation to why I was in jail; when I indicated I wasn’t interested in discussing that, he backed off graciously.

      A couple of days after I got bailed out, I saw that he was set to testify in a high-profile case, claiming the defendant had confessed to him while in jail, and that he had a long record of testifying as a jailhouse snitch.

      I think these guys are very good at what they do, that their victims are often especially vulnerable–scared, lonely, confused defendants in jail for the first time

    8. #8 |  Jefferson | 

      I’m with Bill. You wouldn’t have to pay me to get the tail.

    9. #9 |  freedomfan | 

      The problem with the actual study mentioned in the third link is that it really isn’t even vaguely appropriate for determining libertarian responses. Even their somewhat interesting approach fails to address the issue of government force that is central to libertarians. In other words, the thing which distinguishes libertarians from the more authoritarian alternatives isn’t whether one would do X or Y given the opportunity or enough money or whatever. The central question for libertarians is whether it is appropriate for government to force one to do X or Y, or to interfere with an individual doing X or Y. E.g., I might very adamantly think that belief in God or Santa or whoever is the key to a grounded, productive, and happy life. And, I might adamantly think that there is absolutely no role for government in enforcing or restricting that belief. For a libertarian, simultaneously holding those two positions offers absolutely no contradiction. The question about what I choose to do (and even what I think is best for others to do) is separate from the question about what government gets to say about it.

      This is why so many surveys and studies are basically worthless when it comes to determining either what libertarian views are or how common they are. They might ask, “Do you think drug use is good or bad?” But, the answer to that question doesn’t determine libertarian leanings because the relevant question there is “Do you think the government should make drug use illegal?” Similarly, if one wants a basis for comments on libertarian opinions, then the survey question “Do you think bank CEO bonuses are too high?” doesn’t tell you anything. The question “Do you think it’s the government’s job to decide CEO compensation in the private sector?” might.

      And, all of that is in addition to the fact that so many studies and surveys based on political self-identification of participants (such as some of those in the article) are worthless because they use the old conservative-moderate-liberal scale.

    10. #10 |  OGRE | 

      Stormy,

      A confession about committing a crime to anybody is considered admissible evidence (at least as far as the hearsay rules). First, its not considered hearsay at all since its an admission by a party opponent. (Fed Rules of Evidence 801d(2)) Second, if a defendant refuses to testify, then it can come in as a statement against interest (rule 804b(3)). But generally its the first one that gets it in. If you’re a party to a lawsuit whether its civil or criminal, hearsay statements about what you said are going to be admissible, as you can always testify to the contrary.

      The hearsay exceptions are set forth based on the belief that statements of such types are so trustworty as to be admissible. (e.g. statements made to a doctor for diagnosis, who would lie to their doctor about whats wrong with them and risk a faulty treatment?) Even statements for which there is no specific exception are admissible if it can be shown that they are inherently trustworthy, given the circumstances.

      I would think, however, that hearsay statements by a jailhouse snitch would be inherently UNtrustworthy. (They have nothing to lose and much to gain by lying.) But the courts have refused to see it that way, and consider cross-examination to be sufficient to root out untruthful snitches.

    11. #11 |  Boyd Durkin | 

      “…scored lower in every moral category.”

      meh. To each his own.

      Hmmm.

    12. #12 |  B | 

      They can have my prosthetic tail when they rip it from my bleeding vestigial stump!

    13. #13 |  Boyd Durkin | 

      @ Brandon (#3)

      I have a hard time convincing Republicans and Democrats that libertarians have ever been right. In fact, each of those groups thinks they’ve each been wholly right about everything that has ever happened.

      Dogma doesn’t die easy. Already my Republican “friends” are pointing at how crappy Obama is in ruining all the good work Bush did for the country.

    14. #14 |  Bob | 

      It’s only ‘hearsay’ if the party who said it isn’t available for cross examination.

      So… if Skeeter said “Joe told me Ryan confessed to murder!” and Joe accidentally killed himself while making a shiv later, that would be hearsay as Joe was not available for cross examination.

      The whole ‘confession exemption’ is wack. It exists so crooked prosecutors can jack confessions out of people through collusion.

      If you actually want to confess to a crime, then you have enough knowledge about the crime to point investigators to the evidence they need to convict you without a confession.

      In my opinion, if all the prosecution has is a confession, then it was extracted by duress from someone who did not intend to ‘confess’.

    15. #15 |  John | 

      Is it a prehensile tail or does it just hang there? But that would be a factor in my decision.

      Does it have a scorpion stinger? Because then you wouldn’t have to pay me.

    16. #16 |  omar | 

      From the Hampton Roads article, Grand Inquisitor Ebert says of the fictional confession given by Skeeter the Bard…

      He got us to the point where the defendant had to take the stand,” Ebert said. With Skeeter’s statement before the jury – that Frederick knew he was shooting at police – defense attorneys needed Frederick to deny it.

      And for translation…

      We knew we were going to lose unless we got Frederick up on the stand, so we just made something up. Justice is for little bitches, I’m here to win.

      Ebert then went on to say…

      It’s true; very little separates me from the people I prosecute. I am not a beautiful and unique snowflake.

      What an asshole.

    17. #17 |  Marty | 

      if I could have an armored tail, like a stegosaurus, AND it was prehensile, I’d pay to have it done. If you could incorporate the scorpion stinger… that would be one versatile machine.

    18. #18 |  Michael Yuri | 

      Bob (#14):

      That’s not actually correct. Hearsay is hearsay regardless of whether the party who said it is available for cross examination.

      Your example: Skeeter said “Joe told me Ryan confessed to murder!”

      Here, Ryan’s alleged confession would be a party admission, which is an exception to the hearsay rule. BUT Joe’s relation of the confession to Skeeter is pure hearsay and not admissible in any case.

      If Joe were available, he could testify that Ryan confessed. But Skeeter could not testify that Joe told him that Ryan confessed, regardless of whether Joe is available, or even if Joe himself has already testify to the confession.

      One exception to this. Suppose Joe testifies and says, “Ryan never said anything about the crime.”

      Then, Skeeter would be allowed to testify that Joe had told him that Ryan confessed. This would be allowed because the purpose would be to demonstrate that Joe is an unreliable witness, not to prove that the confession happened.

    19. #19 |  Mike | 

      At 2 inches long perhaps it was more electronic in nature, perhaps like a computer docking station. Something that frees up both my hands and lets me surf the web with my ass, sign me up.

      Let the jokes about what I am going to be doing with that free hand and the only good use of the internet begin.

    20. #20 |  Michael Yuri | 

      OGRE (#10):

      You’re right that many of the hearsay exceptions are justified because they are supposedly more reliable (e.g. excited utterance, dying declaration, business records, etc.). But party admissions are justified instead by an estoppel theory.

      The core idea behind barring hearsay is that parties need to be able to challenge the reliability of out-of-court statements. The party admission exception says that you can’t challenge the reliability of your own out-of-court statements.

    21. #21 |  Whim | 

      Bob’s comment that “The whole ‘confession exemption’ is wack. It exists so crooked prosecutors can jack confessions out of people through collusion,” is right on the mark.

      For me, a prosecutor bringing in a jail house snitch means one thing and one thing only:

      The prosecutor doubts he has enough evidence to convict.

      Then, VOILA, a jailhouse snitch comes forward at an opportune time, and is secretely promised a reduced charges or a reduction in sentence if he cooperates.

      Jailhouse snitches were an integral element in many of the 100’s of wrongful convictions that are just now being overturned by DNA testing.

    22. #22 |  Brock | 

      surf the web with my ass

      Oh, that is just so full of win I cannot stand it. How can Mike be handicapped in the future so others can play?

    23. #23 |  Nathan A | 

      I used to love freaking out parents and teachers by pulling that good old ‘safety pin through the very top layer of skin’ trick.

    24. #24 |  SusanK | 

      I don’t know that it’s ethical for a prosecutor to knowingly put a liar on the stand simply to force the defendant to testify. Of course, Ebert claims he didn’t know Skeeter was a liar, but his quote in the paper sure sounds like he would have put anyone up there to testify if it would force Ryan to.

    25. #25 |  Rick Caldwell | 

      I’m not sure it was a good idea on Ebert’s part to force Ryan to the stand. I was there when RF testified. His testimony was more credible than any of the cops’. His testimony matched the video and audio of the two interviews. The testimony of all of the cops matched the reenactment, but not the interviews.

      One particularly stupid move was when Willett asked RF a question about the interview at the police station. He was trying to make it seem as if RF knew who the burglars were, and intended to kill them. He phrased RF’s answer from the interview “They walked past a fifty dollar pressure washer, stupid shit!” with emphasis as if “stupid shit” was a description of a person RF knew. Ryan corrected Willett by rephrasing it without the emphasis, and with the critical word “and” before “stupid shit”. That of course changes the meaning of the phrase. Later that day, Broccoletti played the video of the interview, and the answer that contained that phrase matched RF’s description, and the word “and” was clear as day.

      Ryan really helped his own case. Ebert shouldn’t be bragging about forcing him onto the stand.

    26. #26 |  pris | 

      About this survey- didn’t mention gender- are female Libertarians as apt to go for a tail as males? You know all that Freud ‘penis’ envy….

    27. #27 |  ktc2 | 

      For all those asking “Why isn’t XYZ illegal in court? It’s clearly unethical/immoral/wrong/unjust/prejudicial/____________!”

      Because the system is DESIGNED TO CONVICT, and it does so with a 98% success rate. Right and wrong? Innocent or guilty? It doesn’t matter anymore. All that matters is the statistics for the prosecutors and police.

    28. #28 |  Salvo | 

      Just to put this into perspective for the non-lawyers, half of the evidence portion on the bar exam is usually questions on hearsay and it’s exceptions. Most lawyers who don’t do litigation have only a passing understanding of it, simply because it’s so complex. And bringing up the concept of it amidst a crowd of attorneys is sure to get a debate started.

    29. #29 |  Michael Yuri | 

      “Because the system is DESIGNED TO CONVICT, and it does so with a 98% success rate.”

      Sorry, but this is just too simplistic. For the most part, the rules of evidence in criminal trials are exactly the same as the rules used in civil trials between two private parties. The few places where the rules are different in criminal trials (e.g. confrontation clause limits on hearsay exceptions) are MORE favorable to criminal defendants than the standard civil rules.

      I’m not arguing that the criminal justice system isn’t tilted against defendants. But if you want to understand why the system works the way it does you have to go beyond simple slogans like “Designed to Convict”.

    30. #30 |  Robin | 

      Pretty sure those study results can be explained by libertarians having a sense of humor. Sociologists seem to think that they are learning something definitive about people when they pass out a bunch of ridiculous multiple choice questions.

    31. #31 |  t. reed | 

      Can a lawyer tell me if this is ethical?

      From Va Pilot snitch story:

      “The decision to put him[Skeeter] on the witness stand was, in part, a tactical one.

      “He [Skeeter]got us to the point where the defendant had to take the stand,” Ebert said. With Skeeter’s statement before the jury – that Frederick knew he was shooting at police – defense attorneys needed Frederick to deny it.”

      So, if I understand Mr. Ebert correctly, I have a Fifth Amendment right, but the State may undermine it at will by putting known liars on the stand. Ebert is dangerous scum.

    32. #32 |  MacGregory | 

      I am going to call my insurance company about a prosthetic tail. I need to know if it is considered to be an elective surgery or a necessary procedure.

    33. #33 |  angulimala | 

      As for #3 … Give me a break. What people say about their own morality is worthless. These surveys are doubly so.

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