Struggling through that evidence course? Maybe this will help.
Or at least cheer you up.
I'm told that no actual sock puppets were killed in the making of this presentation.
Showing posts with label evidence. Show all posts
Showing posts with label evidence. Show all posts
12 September 2010
11 April 2010
Confessions at Law
I quoted Jeremy Bentham on this point Friday. Of course, he wasn't the last to discuss the issue of what is or ought to be the status of priest-penitent confessions to crimes in common law countries.
In the US, Rule 505 of the Uniform Rules of Evidence sets out the privilege in this way:
(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.
Prior to the adoption of any specific codes by any of the states of the United States in this matter, the case for the privilege had to be made on constitutional grounds. In 1813, in PEOPLE v. PHILLIPS, a New York State Court said:
It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance.
Since there was no "doctrine of incorporation" at the time -- and no 14th amendment on which to hang it -- the "free exercise of religion" language there refers to the state constitution.
In 1956, in a paper in the Tulane Law Review, David Louisell said that such rules should not be thought of as in the first instance exclusionary rules.
"They are, or rather by the chance of litigation may become, exclusionary rules; but
this is incidental and secondary. Primarily they are a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the state’s coercive or supervisory powers and from the nuisance of its eavesdropping."
All in all, I find I've stumbled upon a fascinating subject. Its fascination depends, though, upon the myth of sovereignty. In an anarcho-capitalist system, where law enforcement and judicial systems were themselves plural and market-based, that system of confidences and exemptions would prevail which best satisfied over-all demand, given all the different factors that bear upon the demand for justice -- or (to make it sound less abstract) the demand for the services of adjudicators.
In the US, Rule 505 of the Uniform Rules of Evidence sets out the privilege in this way:
(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.
Prior to the adoption of any specific codes by any of the states of the United States in this matter, the case for the privilege had to be made on constitutional grounds. In 1813, in PEOPLE v. PHILLIPS, a New York State Court said:
It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance.
Since there was no "doctrine of incorporation" at the time -- and no 14th amendment on which to hang it -- the "free exercise of religion" language there refers to the state constitution.
In 1956, in a paper in the Tulane Law Review, David Louisell said that such rules should not be thought of as in the first instance exclusionary rules.
"They are, or rather by the chance of litigation may become, exclusionary rules; but
this is incidental and secondary. Primarily they are a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the state’s coercive or supervisory powers and from the nuisance of its eavesdropping."
All in all, I find I've stumbled upon a fascinating subject. Its fascination depends, though, upon the myth of sovereignty. In an anarcho-capitalist system, where law enforcement and judicial systems were themselves plural and market-based, that system of confidences and exemptions would prevail which best satisfied over-all demand, given all the different factors that bear upon the demand for justice -- or (to make it sound less abstract) the demand for the services of adjudicators.
09 April 2010
The confidentiality of a confession
The confidentiality of a confession requires that the confessing party keep his voice down. The priest won't rat you out, but anyone else passing by is free to do as they please with what they hear!
As a matter of history, even Jeremy Bentham believed the law ought to recognize priest-penitent privilege. He had no sympathy for the Catholic Church, and he was generally against privileges. Nonetheless: Bentham wrote, in "View of the Rationale of Evidence," that though the government of a rational society will be happy to see Catholicism fade away, it will not use coercion against it, and that the imprisonment of priests for refusing to share confessions would be precisely that.
He also said that the presence of a "spiritual guide and comforter" for persons who are so misguided as to go to a Roman Catholic priest to confess, is a good thing, tending to the prevention of future crimes, and to "the disposing of the penitent to make reparations for mischief done by misdeeds already perpetrated." This benefit would be lost were the evidentiary privilege not extended.
Bentham, interestingly, had no use for the institution of a lawyer-client privilege, which has no such positives in the utilitarian balance.
As a matter of history, even Jeremy Bentham believed the law ought to recognize priest-penitent privilege. He had no sympathy for the Catholic Church, and he was generally against privileges. Nonetheless: Bentham wrote, in "View of the Rationale of Evidence," that though the government of a rational society will be happy to see Catholicism fade away, it will not use coercion against it, and that the imprisonment of priests for refusing to share confessions would be precisely that.
He also said that the presence of a "spiritual guide and comforter" for persons who are so misguided as to go to a Roman Catholic priest to confess, is a good thing, tending to the prevention of future crimes, and to "the disposing of the penitent to make reparations for mischief done by misdeeds already perpetrated." This benefit would be lost were the evidentiary privilege not extended.
Bentham, interestingly, had no use for the institution of a lawyer-client privilege, which has no such positives in the utilitarian balance.
07 May 2007
A Bit of a Tooth
Prosecutors are now charging that one of Phil Spector's former lawyers may have removed evidence from a crime scene.
The defense contends that Lana Clarkson's death was some combination of accident and suicide -- she put the gun in her own mouth and pulled the trigger, perhaps in the belief that it wasn't loaded.
That contention means that "splatter evidence" may be crucial to this trial, so a bit of a tooth found at the crime scene (all accounts are calling it a fingernail-sized piece of tooth) is important in itself even aside from the general principle that any tampering with a crime scene smacks of obstruction of justice.
The allegation -- that Sara Caplan (apparently an experienced and well-regarded attorney) pilfered this bit of tooth -- comes from a law clerk at Caplan's firm. Caplan denies it.
My guess is that Caplan is probably innocent, simply because that just seems such a blatant and high-risk thing for someone in her position to attempt. Why would the clerk say it, then? I don't know. I would presume innocent misunderstanding.
Though I think Caplan innocent, I'm sure her former client is guilty of murder, and I suppose on balance I'm happy the prosecution is taking an aggressive stance.
The defense contends that Lana Clarkson's death was some combination of accident and suicide -- she put the gun in her own mouth and pulled the trigger, perhaps in the belief that it wasn't loaded.
That contention means that "splatter evidence" may be crucial to this trial, so a bit of a tooth found at the crime scene (all accounts are calling it a fingernail-sized piece of tooth) is important in itself even aside from the general principle that any tampering with a crime scene smacks of obstruction of justice.
The allegation -- that Sara Caplan (apparently an experienced and well-regarded attorney) pilfered this bit of tooth -- comes from a law clerk at Caplan's firm. Caplan denies it.
My guess is that Caplan is probably innocent, simply because that just seems such a blatant and high-risk thing for someone in her position to attempt. Why would the clerk say it, then? I don't know. I would presume innocent misunderstanding.
Though I think Caplan innocent, I'm sure her former client is guilty of murder, and I suppose on balance I'm happy the prosecution is taking an aggressive stance.
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