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Scalia, Sotomayor Exchange Barbs in High Court Ruling
fox ^ | 2/28/11 | Lee Ross

Posted on 02/28/2011 8:47:47 PM PST by Nachum

Sparing no arrow from his rhetorical quiver, Supreme Court Justice Antonin Scalia fired away in dissent of Monday's 6-2 ruling that puts a Michigan man back on the hook for a drug murder and casts doubt on the reach of a hallmark opinion penned by the court's longest serving member.

Scalia called Monday's decision a "mistake," "patently incorrect," "incoherent" and a "gross distortion of the law."

Over time, all members of the high court have been subjected to Scalia's caustic writings. This time it was Justice Sonia Sotomayor who was responsible for articulating the court's position--joined by five of her colleagues--that the comments made by a victim hours before he died were admissible during the trial of his shooter.

The decision drew a fiery response from Scalia who said the ruling "distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort."

(Excerpt) Read more at foxnews.com ...


TOPICS: News/Current Events
KEYWORDS: barbs; exchange; scalia; sotomayor
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Interesting stuff for you law geeks out there.
1 posted on 02/28/2011 8:47:53 PM PST by Nachum
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To: Nachum

In Plato’s Republic, Socrates tried to define justice. He had the earliest version of a liberal, Thrasymachus, delivering silly opinions that Socrates refuted.

Now we are subject to the same questions, and we are failing.


2 posted on 02/28/2011 8:53:08 PM PST by Loud Mime (If it is too stupid to be said, people will listen to it, if sung - - Voltaire)
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To: Nachum
That's a weird one. Scalia and his gal pal Bader-Ginsburg dissented. Kagan didn't take part.

Majority: Roberts, Alito, Thomas, Kennedy, Breyer, Sotomayor

Dissent: Scalia, Ginsburg

3 posted on 02/28/2011 8:54:11 PM PST by Huck (Only 1,967 years until the Reign of Dr. Zaius!)
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To: Nachum

Wow...Ruth Ginsburg and Scalia agreeing in a dissent?

There’s something I hadn’t expected to see anytime soon.


4 posted on 02/28/2011 8:54:22 PM PST by DemforBush (Insert pithy catchphrase here)
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To: Nachum

6-2, not exactly a nail biter.


5 posted on 02/28/2011 8:54:25 PM PST by DTogo (High time to bring back the Sons of Liberty !!)
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To: Nachum

I don’t see this as Scalia slinging “barbs” at Sotomayor. He was comdemning the oppinion and the headline would have been just as accurate if the name Roberts or Thomas had been used instead of Sotomayor.


6 posted on 02/28/2011 8:56:57 PM PST by Terry Mross (We need a SECOND party.)
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To: Nachum

Gad, I agree with Sonya.


7 posted on 02/28/2011 8:56:58 PM PST by bboop (Stealth Tutor)
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To: Nachum

I’m not sure if I would agree with the decision or not, haven’t read it yet.

But in truth, haven’t death-bed type statements always been given a different status as evidence? I mean a death-bed statement is not necessarily considered hear-say, so it is sometimes admissible.

Just sayin.


8 posted on 02/28/2011 8:57:20 PM PST by djf (Dems and liberals: Let's redefine "marriage". We already redefined "natural born citizen".)
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To: Huck
What!?!?!?!?

Thomas and Scalia on different sides of a ruling? I thought Justice Thomas was joined at the hip with Justice Scalia! I thought the man wasn't capable of a single cogent thought without the help of Antonin the Benefactor! That's what all my lib friends say, and they only tell the truth (they say).

9 posted on 02/28/2011 8:58:03 PM PST by TexasNative2000 (Uncertainty: it's the new normal)
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To: Nachum

“obfuscator of last resort”

What a mind.

“Sotomayor said Scalia’s analysis was simplistic”

That’s like Wile E. Coyote telling Albert Einstein that his physics are simplistic.

I hate a world in which a dimwit like Sotomayor gets away with that.

When a leftard says something is “simplistic,” it really means, “I can’t rebut that argument on the merits, but I can intimidate you into thinking that the reason my arguments look bogus to you is that you are not smart enough to understand them.”


10 posted on 02/28/2011 9:01:59 PM PST by dsc (Any attempt to move a government to the left is a crime against humanity.)
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To: Nachum

Traditionally, an attack victim who believes he is dying is assumed to want to speak the truth when naming his assailant, because he expects to soon face God. This sounds like a straightforward application of that tradition, and why Scalia would get bent out of shape over this sort of exception to the hearsay rule sounds like a minor mystery. Was the victim an atheist?


11 posted on 02/28/2011 9:02:52 PM PST by HiTech RedNeck (Hawk)
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To: TexasNative2000

I know. The funny thing is, ANY time they are on opposite sides, Scalia is wrong.


12 posted on 02/28/2011 9:03:02 PM PST by Huck (Only 1,967 years until the Reign of Dr. Zaius!)
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To: djf

Yes juries are likely to give them more credence. But the problem with death bed statements is that the defendant doesn’t get the chance to cross examine the witness, which arguably violates his constitutional right to confront the witnesses against him.


13 posted on 02/28/2011 9:03:08 PM PST by SeeSharp
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To: djf

Yeah..its called a dying declaration.


14 posted on 02/28/2011 9:03:52 PM PST by ExtremeUnction
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To: dsc

So why did Roberts, Alito, Thomas, and Kennedy all agree IN FULL with Sotomayor? Maybe because she was correct and Scalia was incorrect. Maybe it WASN’T as simple as Scalia tried to make it, his ascerbic wit notwithstanding.


15 posted on 02/28/2011 9:05:01 PM PST by Huck (Only 1,967 years until the Reign of Dr. Zaius!)
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To: djf

Dying declarations can be admitted into evidence but they usually have to have concrete evidence which backs them up, or else anyone could frame a person they didn’t like and not have to face them in court.

Dying declarations were mainly from criminals who were confessing to a crime(s), often to clear their conscience before they croaked. Can be tricky, but also accurate.

This is what Scalia might have had in mind in his dissent.


16 posted on 02/28/2011 9:05:49 PM PST by MadMax, the Grinning Reaper
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To: Terry Mross
I don’t see this as Scalia slinging “barbs” at Sotomayor.

She wrote the majority opinion, so yeah, she's at barb ground zero.

17 posted on 02/28/2011 9:11:18 PM PST by NonValueAdded (Palin 2012: don't retreat, just restock [chg'd to comply w/ The Civility in Discourse Act of 2011])
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To: MadMax, the Grinning Reaper

That was king of what I was thinking, that there would have to be some kind of corroborating evidence.
And any evidence that contradicted the statement would necessarily be give very great weight.

But I can certainly see where there is a problem if the statement is an accusation and the person accused didn’t have a chance to cross examine him.

I’d be inclined to throw it out if it is accusatory of someone else. The reason being, these rights (right to confront the witnesses against you) were developed and put into place after years, decades of abuses.
And when you yield a little bit on one, then it just becomes easier to yield a little bit on the next one...

Next thing you know we are back to star chambers where you have no right to counsel and have no right to present exculpatory evidence.
IOW, your goose is cooked!


18 posted on 02/28/2011 9:14:08 PM PST by djf (Dems and liberals: Let's redefine "marriage". We already redefined "natural born citizen".)
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To: djf

That was king sb That was kind


19 posted on 02/28/2011 9:15:05 PM PST by djf (Dems and liberals: Let's redefine "marriage". We already redefined "natural born citizen".)
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To: Nachum

This case will have little, if any impact on future cases.


20 posted on 02/28/2011 9:15:05 PM PST by SeaHawkFan
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To: Nachum

here’s the opinion:

http://www.supremecourt.gov/opinions/10pdf/09-150.pdf


21 posted on 02/28/2011 9:15:14 PM PST by Huck (Only 1,967 years until the Reign of Dr. Zaius!)
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To: DemforBush

If that is not a sign of the apocalypse, it should be.


22 posted on 02/28/2011 9:16:17 PM PST by Ronin ("Dismantle the TSA and send the screeners back to Wal-Mart.")
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To: Nachum
While I agree with Scalia that the majority's opinion is more twisted than a Hollywood party, I disagree with the general interpretation that a victim's statements before death are to be quashed in court simply because the suspected perpetrator succeeded in the murder and isn't available for confrontation.

I agree that there should be more weight given to the confrontation clause, but like everything in the law, the absence of common sense is the problem here. It is the continued pushing of the envelope to create ridged structure to human endeavors that is the problem, and more weight should be given to judicial and jury responses of ‘are you kidding me?’ to these ludicrous theories.

Common sense says you shouldn't benefit from a criminal act in your defense. That a victim's statement shouldn't be thrown out simply because they've been murdered.

23 posted on 02/28/2011 9:16:38 PM PST by kingu (Legislators should read what they write!)
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To: TexasNative2000

No you are wrong! Thomas’ base is Natural Law Theory and God’s Laws....he is exactly like our Founders and Cicero.....He thinks our positivism is a gross violation of the intent of our Constitution.

Laws immersed in Natural Law Theory and are aligned to it....are Just Law. Everything else—man-made laws ==are all created on the whims of man and are always political and about granting power to some groups/individuals/corporations over others—creating unequal justice under the law. It is always evil and unjust.

Scalia claims that inalienable rights —such as the rights of life—can be denied to certain classes of individuals in the womb if you have a majority vote in the state. He claims it is a states right and they have the power to deny inalienable rights to the child in the womb.

It is a complete denial of Natural Law Theory—as is “gay” marriage which takes the definition in Black’s Legal dictionary and CHANGES it —just as all good marxists do when they try to force a nation to turn from God’s Laws which is in our Founding documents and is the basis of our legal system.

Scalia falls for the Postmodern/Holmesian twisting of our Constitution. Thomas understands, just like Cicero, that all man-made laws not inline with natural law is evil and unconstitution. The US was founded with a government which Cicero envisioned as being the “perfect” Republic. We were until Holmes removed our laws from morality (God’s Law) which should be unconstitutional.

Natural Law Theory always understands that our rights come from God. God can NEVER be removed from our legal system which is what the Postmoderns have been doing for the last 100 years to create a Communist/Socialist country which is totally unconstitutional.


24 posted on 02/28/2011 9:18:37 PM PST by savagesusie
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To: NonValueAdded

A Supreme Court decision is not the opinion of a particular justice; it is the “opinion of the court written by Justice________.”

A dissent is a different matter as it is referred to as the dissent of Justice(s)_______.”


25 posted on 02/28/2011 9:18:48 PM PST by SeaHawkFan
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To: Huck
Dissent: Scalia, Ginsburg

Guaranteed their reasoning was different.

26 posted on 02/28/2011 9:29:58 PM PST by RobinOfKingston (An election is not a (national) suicide pact.)
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To: Nachum

Scalia and Ginsburg were the two in dissent. WTH? Dogs and cats laying down together time to call Ghostbusters.


27 posted on 02/28/2011 9:31:12 PM PST by arrogantsob
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To: Huck

“So why did Roberts, Alito, Thomas, and Kennedy all agree IN FULL with Sotomayor? Maybe because she was correct and Scalia was incorrect. Maybe it WASN’T as simple as Scalia tried to make it, his ascerbic wit notwithstanding.”

1. Even a blind hog finds an acorn once in a while. Even if Sotomayor was right on this issue (which I’m not granting), she’s still a dimwit and Scalia is still a fountain of wisdom.

2. Truth is not determined by majority vote. Supreme Court majorities have handed down more than one incorrect decision.

3. Clarence Thomas did not agree in full, so you sort of wasted some capital letters.

4. Breyer and Kennedy are despicable scoundrels, so no surprises there. The agreement of Roberts and Alito is puzzling. I’ll be eager to get more info on what they actually said.

What we have here is a decision that breaks down to four scumbags and two decent people against one scumbag and one decent person. The opinions of scumbags need not be considered, so it’s really a two to one decision.


28 posted on 02/28/2011 9:31:22 PM PST by dsc (Any attempt to move a government to the left is a crime against humanity.)
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To: Huck

Good question.

And it does not look good for Obamcare on that premise.


29 posted on 02/28/2011 9:32:14 PM PST by quantim (Victory is not relative, it is absolute.)
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To: Huck

This is not that difficult.
You are angry with someone and on your way to kill them. You were then attacked by someone else completely unaware of who you are but just wanted do rob you. He shot you and ran away. You don’t know him and think you are about to die. When the police arrive you are thinking of revenge unfulfilled The reason you are there. Do you tell them about the man who shot you or do you blame the one one you are angry with before you die and let someone else take out your vengeance, for what ever angered you, real or imagined in your stead?

The laws are there to protect both of you.


30 posted on 02/28/2011 9:35:44 PM PST by glyptol
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To: savagesusie

Who speaks for God to establish Natural Law? Try as you wish you can’t get beyond the fact that our system requires laws be passed by legislatures of men. And men dispute what are “rights”. Slavery was once considered a right and strongly supported by most Southern churches. Now many believe health care is a “right” and we see that working out.


31 posted on 02/28/2011 9:39:23 PM PST by arrogantsob
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To: HiTech RedNeck
Traditionally, an attack victim who believes he is dying is assumed to want to speak the truth when naming his assailant, because he expects to soon face God.

I have always had trouble with this since the Sixth Amendment is very specific:

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The right to confront and cross-examine witnesses against a defendant is very basic ...

32 posted on 02/28/2011 9:42:37 PM PST by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...</i><p>)
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To: arrogantsob

My mistake.
Both of them.

Remember the part about “unrepentant with blood on their hands?

I have read the book too.


33 posted on 02/28/2011 9:46:05 PM PST by glyptol
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To: glyptol

Sounds like a screenplay there. Go for it.


34 posted on 02/28/2011 9:50:38 PM PST by arrogantsob
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To: arrogantsob

Why not. I can’t drill for oil.


35 posted on 02/28/2011 9:52:02 PM PST by glyptol
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To: kingu
a victim's statement shouldn't be thrown out simply because they've been murdered.

I can sympathize with your point of view, but I agree with Scalia here. I could be wrong , but I think the point that Scalia is making is that a statement of fact by an eyewitness must be subject to cross examination in a court of law, if the confrontation clause is to have any meaning within that law. The circumstances immediately surrounding that statement is what is important here. If a statement is made using proper investigative techniques, then those investigating officers, or more correctly, their interpretation, methodology, etc., can be cross examined. Without that, you have a statement that is virtually unchallenged, and that is a big problem, considering we are talking about a court of law.

I have no problem with the statement being used as a "police tool." which Scalia also makes clear in his remarks when he saidt: "his statement had little value except to ensure the arrest and eventual prosecution of Richard Bryant."

Eyewitness testimony can be notoriously incorrect, even when the witness has the best of intentions, and I see no reason why we should somehow relegate such statements as these to be inviolate with regard to objective truth.

That said, I'm a little surprised that Roberts and Alito chose a different path.

36 posted on 02/28/2011 10:07:04 PM PST by csense
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To: Huck

Agreed, I love Scalia but think Thomas is the better jurist.


37 posted on 02/28/2011 10:10:05 PM PST by DeskCaptain
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To: savagesusie

Very nicely stated. :-) And I was unaware of Scalia’s right to life vs. states’ rights position, so you taught me something. Thanks.

You’d think he’d know better.


38 posted on 02/28/2011 10:12:46 PM PST by Lauren BaRecall (I love Natural Law.)
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To: SeaHawkFan

From the article: Justice Sonia Sotomayor ... was responsible for articulating the court’s position.”

Justice Scalia objected not only to the decision, but to the opinion’s incoherence. Justice Sotomayor clearly did not, in Scalia’s opinion, write a well crafted opinion. Another on the majority might have articulated their position better, at least in Scalia’s opinion.


39 posted on 02/28/2011 10:18:09 PM PST by EDINVA
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To: arrogantsob

I am talking about Natural Law Theory which presupposes a God—it is cause and effect—it is common sense. It is stupid to think something which has so much design is created by nothing. Our government was founded by people who revered much of Locke’s theories along with Montesquieu and a few others. It is the basis of all our law and legal system. It is stated in the Founding Documents that our rights come from God. That they are unalienable. Every literate person can determine what exactly is a “right” if they read the Constitution, which, of course, no Democrats ever do. They go by the Communist Manifesto.

The terms “ the laws of nature and of nature’s God entitle them” were not just arbitrarily thrown into the Declaration. It was the fundamental beliefs of the Founding Fathers and from all the theory which formed the Constitution.

Yes, laws are passed by legislatures but they have to be inline with Natural Law Theory to be Just Law as our Founders described it. You can’t have men saying you can shoot children just as the Founders knew that the ability to have a majority vote did NOT make something right. In fact, they loathed democracies and thought they were evil because there were no restraints on power. Minorities would be on the losing end with no rights ever.

There is right and wrong—and they based our Constitution on Natural Law and Revelation to determine what was right and wrong. That is the bases of our legal system—It was until Holmes and the Fabians said that you can remove morality from law. That is nonsense, according to the intent of our Founding Fathers but the Postmoderns want to destroy “rights” from God so they can utilize “the end justifies the means”. Such evil philosophy that is anathema to the United States and incompatible with the Constitution.


40 posted on 02/28/2011 10:20:45 PM PST by savagesusie
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To: Huck; xzins; blue-duncan; wmfights
I have to agree with Scalia. The victim's statements were not in the nature of a "dying declaration" as the victim had no clue that he was about to die. The police were interrogating the victim and were not in the least concerned with his imminent demise and the factual set up by the police in this case was clearly a ruse designed after the fact to make the victim's testimony appear to fall within the dying declaration exception to the hearsay rule.

The court should simply have stated that the facts did not support the dying declaration elements and then it would never have created this new fluid definition of the confrontation clause that weighs the seriousness of the crime against the constitutional protections for the confrontation of witnesses.

The rule has always been that a dying declaration is one in which the declarant believes he is about to die. This case did not fit those facts.

41 posted on 02/28/2011 10:25:05 PM PST by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: csense

A statement of fact implies that the person stating the “fact” is telling the absolute, unequivocal truth. Which is rare. Not because they are deliberately,telling a lie. But because if a violent confrontation happens and you are frightened what is remembered is not what really happened.

I am not making excuses for criminals. But people make mistakes. By the time cases get to trial it might be years after the crime was committed. The more publicity, the more they don’t want to fail in remembering their initial statement

And don’t forget political pressure.

The poor theater of Duke U anyone?


42 posted on 02/28/2011 10:27:46 PM PST by glyptol
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To: Nachum

Yikes.. A dying declaration should be inadmissable, according to Scalia??
Let the court (and the jury) hear it. The prosecution can present it and the defense can impugn it.

I have never been a fan of “loophole” defense strategies which aim to get this or that “thrown out” on bullsh!+ technicalities. I have always felt that punishing victims for the transgressions of cops was a slimy way to operate a “justice” system. Punish the cop if he screws up. Spank him hard. Fire him, jail him, whatever.. Meanwhile, let all the evidence in, argue it, and let the jury decide. Show a little respect for the victim and his family.

I think Scalia is way off base here.


43 posted on 02/28/2011 10:28:36 PM PST by Lancey Howard
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To: kingu
I disagree with the general interpretation that a victim's statements before death are to be quashed in court simply because the suspected perpetrator succeeded in the murder and isn't available for confrontation.

That's my view. I don't think the Confrontation Clause was intended to reward people for murdering potential witnesses. There have to be some limits like judges having to carefully explain to juries the limitations of such evidence but the facts of this case pretty much favor the majority opinion.

44 posted on 02/28/2011 10:29:48 PM PST by garbanzo (You better hold on; This one's about to get bumpy.)
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To: arrogantsob
Natural Law is established by God and knowable by man through reason. Those who thought that owning other human beings was their right reasoned from a fallacious basis, i.e., “not all men are created equal.”
45 posted on 02/28/2011 10:31:39 PM PST by Lauren BaRecall (I love Natural Law.)
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To: glyptol

dun dun dun...that’s a great Law and Order episode there.


46 posted on 02/28/2011 10:32:30 PM PST by garbanzo (You better hold on; This one's about to get bumpy.)
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To: Lauren BaRecall

As much as I like Scalia, I have been disappointed in his logic on abortion and homosexual marriage. If he understood the Constitution and its inception and tie with Natural Law Theory, then there is no way he can condone either of those things.....they deny unalienable rights to the child and they deny natural law and God’s Law of design of the man and woman. It is bizarre that he wavers on these two items. Everything else is fine but the fundamental freedom of religion is entailed in homosexual marriage and the right to raise your children with your religious beliefs is being destroyed by the secular humanism forced onto children with taxpayer money. The DOE is unconstitutional also....I don’t know why the court is so lax on protecting the Constitution, unless they are Marxist plants also. I know Ginsberg and Kagan and Sotomeyer are for sure. We are doomed if all three branches are now Marxists.


47 posted on 02/28/2011 10:35:52 PM PST by savagesusie
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To: garbanzo

Never liked liked the show myself. To predictable. Missed my point.


48 posted on 02/28/2011 10:39:23 PM PST by glyptol
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To: ExtremeUnction

Hardly a dying declaration as it was made “hours” before the guy died. There has to be a belief of rather imminent death for that exception to apply.


49 posted on 02/28/2011 10:43:15 PM PST by DryFly
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To: csense
Eyewitness testimony can be notoriously incorrect, even when the witness has the best of intentions, and I see no reason why we should somehow relegate such statements as these to be inviolate with regard to objective truth.

Q: Who shot you. A: Homie Doggie who lives on 3rd street. *croak*

Common sense would indicate that if the only evidence of a crime were the statements of a victim who later expired, then there'd exist the possibility of reasonable doubt since it would be too easy to manufacturer or manipulate the statement in the absence of any other evidence. Common sense, however, is lacking in the criminal justice system as it stands today.

The hypothetical law school arguments used as a tool to educate students are now the foundation of twisted ruling after twisted ruling. If, at the end of the investigation, all you have is the statement that x did y, and nothing to back it up, then yes, you should be at a dead end. But how can it be considered in any form or fashion a 'justice' system if the victim's own words are excluded from the proceedings? To limit it to simply an investigative tool to direct the investigation defies the humanity that should be within the legal system. Justice is supposed to be blind, not heartless, and certainly still has ears to hear the words of a victim.

The possibility of manipulation and misrepresentation is mitigated by the foundation of other evidence. If police show up soon after at Homie Doggie's house and find gunpowder residue on the hands of Homie Doggie, he'd better have a receipt for his visit to the gun range where he just fired his arms. and it would be a good idea for the rangemaster to also be available to testify to the alibi.

I wholeheartedly disagree that a victim's representation in court ends with a successful murder. I think the original court was right in permitting the testimony, and don't think that defendant's rights were violated in being unable to cross examine the victim's testimony. I do not extend that to the officers themselves; absent a recording, their recollection can be called into question.

50 posted on 02/28/2011 10:48:22 PM PST by kingu (Legislators should read what they write!)
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