Like liberty, consistency is super thing -- but one that cannot be understood, much less achieved, without the context that gives it meaning.

Why do you say that? The two major parties have no discernible principles. However, despite holding it as a floating abstraction (allowing faulty religious underpinnings instead of just Objectivist ones), the LP does seem to hold non-coercion as a principle and go from there.

I find it both humorous and completely absurd that the Libertarian Party website reads literally on the top of the page 'The Party of Principle'! It should read; 'The Party of Any and No Principle'.

The frightening day may dawn when John's "dream" of enforced social responsibility will come true. There are already forces at work trying to make it happen, as you can read here. I am, however, confident that this woman's case will be dismissed -- justly.

No, I am suggesting that making all that you want to be made illegal will be impossible and impractical and unjust.

Also, conspiracy -- something I have prosecuted more than once -- requires more than inaction, as you claim -- it requires an OVERT ACT in furtherance of the crime. Even in your own example, you cited a prior AGREEMENT with the perp -- insufficient, but, yes, required...

James wrote: "Thanks for the clarification.

As someone who has professionally prosecuted crimes in California for many years, I am curious -- to what mandatory crime-reporting laws are you referring? Being an "accessory" to crime requires more than inaction, last time I checked. You say that people have gone to prison for ~ just ~ having been in a room where a murder happened but failed to report it? Do tell."

James this is generally considered to fall under conspiracy laws. If you witnessed a crime where you agree to the criminal not to report the crime, you can face criminal prosecution. A case just recently came up here in CT where a man held a minor imprisoned in his room with the knowledge of his common law wife, who is now charged with various conspiracy charges. The agreement doesn't necessarily have to be explicit but could also be implicit. So for example the common law wife in this case lived in the same house, and failed to report her husband kept a minor imprisoned in their home. She could not have not known of the incident considering she lived in the same home.

http://www.washingtonpost.com/...

"But, at least you are consistent -- you would ~ jail ~ those who fail to report crime, too. However, you should know that the vast majority of such "reprehensible" behavior is very much legal -- and extremely common -- right now."

Your point? So if it's common and legal, it's enough of a justification to say it is ok? I would agree these laws should not be abused and as such there needs to be enough safe-guards in place. First one would have to be able to prove beyond a reasonable doubt one did fail to report a crime which would require

1) One can prove the witness knew it was a crime
2) The witness was not suffering from duress
3) Prove the witness did see the crime, and had ample opportunity to step forward
4) Felt reporting the crime would be fruitful and lead to an arrest

In the case of the CT man imprisoning the minor, all of the above conditions were present to arrest the common law wife.

"Under you scheme, we're gonna need to build a lot more jails... and a whole wing in each just for the rape victims."

Taking the first sentence of your argument, it's an irrelevant issue. If it is a crime (which we've established it can be under certain cases) then there likely would be a deterrence to failing to report a crime, and it's also a utilitarian argument. If there happens to be a lot of murderers, rapists and burglars, is the argument we're going to have to build a lot of jails to house them a valid argument to not jail them? Second this can't apply to the victim failing to report their own victim-hood. That wouldn't make sense as the state cannot act unless the victim wishes the state to pursue retaliation. It's not an injustice if the victim is suffering from duress, or doesn't think they are a victim, or doesn't think reporting the crime would be fruitful or lead to an arrest.

Finally the issue was originally subpoena powers. You are not generally arrested for not volunteering information before the state has requested information from you. (Unless you agreed to cover up a crime whether that be explicit or an implicit agreement) The question was originally is once you are asked, you are now confronted with a choice to comply with the request by the state or the accused, or not to comply. Now there is no excuse of inaction, you are now involved in the fact finding investigation and to obstruct that process is obstructing the pursuit of justice, which obstructing such a process is an injustice and ought to meet the legal definition of a crime.

Mike M. wrote: "Where does your definition of justice come from? I think it is a false definition. Justice refers to deserved/undeserved reward and punishment, not rights violation."

So you do a quick dictionary.com search for the definition of justice and think that is the same usage as justice in a legal or constitutional sense?

Mike you are equivocating the word. I am using the definition of justice most commonly referred to in the U.S. Constitution and our legal system, whose goal is to establish justice, which means the protection of man's rights.

We the People of the United States, in Order to form a more perfect Union, establish Justice....

Did you honestly think the founders of the U.S. Constitution sought to make sure a 13 year old didn't spread ugly rumors about her teacher at recess when they said to "establish justice"? Come on Mike. Get with the program.

Anyone care to defend Congress's power to issue "investigative" subpoenas?

John,

Where does your definition of justice come from? I think it is a false definition. Justice refers to deserved/undeserved reward and punishment, not rights violation.

Thanks for the clarification.

As someone who has professionally prosecuted crimes in California for many years, I am curious -- to what mandatory crime-reporting laws are you referring? Being an "accessory" to crime requires more than inaction, last time I checked. You say that people have gone to prison for ~ just ~ having been in a room where a murder happened but failed to report it? Do tell.

Of course, under somewhat recent reforms, school teachers, nurses, and doctors are "mandatory reporters" of child abuse in their professional capacities, but this is a great exception to the normal rule. (BTW -- get your "disgust" at the ready -- I oppose these more recent laws, too, at least in their current forms.) But the very existence of such laws should tell you something about the present law.

But, at least you are consistent -- you would ~ jail ~ those who fail to report crime, too. However, you should know that the vast majority of such "reprehensible" behavior is very much legal -- and extremely common -- right now.

Under you scheme, we're gonna need to build a lot more jails... and a whole wing in each just for the rape victims.

James: "I cannot make sense of your first sentence, at all, John. I do not advocate any law requiring all witnesses and victims to report crimes."

I didn't say you did. Although reading my sentence again I can see the way I constructed it left it a bit confusing. We actually already have some laws in the United States that does make it a crime if you don't report a crime you witnessed, unless there is a reasonable justification you did not report the crime because of some kind of duress. If you were in the same room as someone who was murdered, and didn't say anything, you can be held as an accessory to that crime. And people have gone to prison for such a thing. There was a case where a man held a minor against her will and molested her while the man's wife knew what was happening, and failed to report it to the police. The wife received a prison sentence for failing to act to protect the minor.

So I'll re-word my sentence to make it a bit less confusing:

"that you would think it is wrong to require by law crimes to be reported, is reprehensible, and speaks volumes about how morally bankrupt your principle are."

However, by failing to advocate such a law yourself, you are allowing far more "injustice" than any changes in the subpoena law could possibly involve. If refusing to jail those who fail to comply with subpoenas is "reprehensible," then, surely, this is, too.

Hey whatdya know James! I agree! I would find it reprehensible not holding people responsible for failing to report a crime if they saw one committed!

"So, lots of far more abhorrent immorality "that perpetuates an injustice" -- indeed, much more "injustice" -- is currently legal, and I can see no "contradiction" in this.

A bit less "disgust," and a bit more logic, might improve your case."

As noted above, my position is 100% logically consistent, whereas you hold a self-refuting concept of justice. A bit more consistency in your principles James and following the law of non-contradictory identity might help improve your case.

Mike M wrote: "Huh? So if a thirteen year old girl is jealous of another middleschooler and starts a rumor about him, she has committed a crime? Starting rumors is unjust, ergo it should be illegal?"

Mike M. you are confused on what is an injustice. Justice is the protection of man's rights against initiations of force. So an unjust act in the context of an "injustice" is an act that violates someone's right. Your example doesn't meet that definition then does it? Unless you think a middle school rumor meets the definition of violating someone's right?

I cannot make sense of your first sentence, at all, John. I do not advocate any law requiring all witnesses and victims to report crimes.

However, by failing to advocate such a law yourself, you are allowing far more "injustice" than any changes in the subpoena law could possibly involve. If refusing to jail those who fail to comply with subpoenas is "reprehensible," then, surely, this is, too. Quite literally ~ every ~ argument that has been made for the one can be made for the other, only with greater urgency and bigger numbers for the original reporting. Right?

So, lots of far more abhorrent immorality "that perpetuates an injustice" -- indeed, much more "injustice" -- is currently legal, and I can see no "contradiction" in this.

A bit less "disgust," and a bit more logic, might improve your case.

If an act is unjust, that meets the definition of what ought to be illegal.

Huh? So if a thirteen year old girl is jealous of another middleschooler and starts a rumor about him, she has committed a crime? Starting rumors is unjust, ergo it should be illegal.

James, that you would think requiring by law crimes to be reported, that is initiations of force against an innocent person, that is a violation of their rights, is reprehensible, speaks volumes about how morally bankrupt your principle are.

I will reiterate your self-refuting concept of justice:

You would legalize an immoral act (to which the question of the morality of this act you admit is immoral) that perpetuates an injustice. How do you reconcile this contradiction? If an act is unjust, that meets the definition of what ought to be illegal. Otherwise please explain your definition of justice?

Unless you also advocate requiring all witnesses and victims to report any observed crime -- by force of law -- you are far more "reprehensible," John, by your own standards.

James said: "That a criminal has violated someone's rights does not give anyone the "right" to use force against an innocent third party (this is where John A. goes off the tracks.) The moral use of retaliatory force is limited -- it gives no warrant to use force against the innocent."

James, the subpoena is a request for information that is only used if there is "just cause", i.e. reason to believe a specifically defined set of evidence or testimony can prove someone's innocence or guilt. Once the request is denied by the third party to be given to the state or to the defendant, IT NOW BECOMES AN INITIATION OF FORCE BY THE THIRD PARTY AGAINST THE VICTIM.

I can't make that any clearer than that.

To break down your argument as follows: If you think as you have already admitted one has a moral obligation to reveal the truth if one has it in their possession (third party witness) but it ought not to be a legal obligation, you are asserting that passiveness that results in an injustice ought not to be illegal. But then what is your definition of justice then if you allow for choices that will result in an injustice? Your definition of justice becomes self-refuting. (Again, choice of inaction is a choice made, in that sense there is no such thing as passive innocence if you are obstructing justice) You are merely advocating initiations of force against the victim, and I find that reprehensible.

Um... way over the line. And this is a great example of the failure of law enforcement to protect the witnesses it needs -- the real cause of "reluctant" witnesses. (If we would stop the insane war on drugs, we could make some ~ serious ~ headway against gangs...)

"IF the "Stop Snitching" campaign ever takes step one to PREVENT a witness from coming forward, they've crossed the line. IF however they are merely advocating that crime not be reported in general, I think that this is protected speech."

You mean THIS line?. (A women in Arizona, just on the news after I wrote the other post, was branded with the word "snitch" on her head.)

For the record, James, I think any such campaign, organized or implicit, is a travesty. (Putting aside the issue of laws that government should not have created, but sticking with crimes of initiation of force, that is.)Especially when those same urban neigbhorhoods are accusing the cops and media of doing nothing at the same time. Can't have it both ways. (Incidentally, the incident in the link above did not involve African Americans this time, showing that this is not just a racial thing.)

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Spaceplayer Sight and Sound

As a DA, I have been the state 'culprit' in forcing witnesses into court on several occasions -- complete with the arrest warrant you can get for the no-show. In every case, the best result of this for either "truth" or "justice" was the effect of getting in their previous hearsay.

Every time.

As for physical/documentary evidence, I know of cases (thank goodness not mine) where the threat of subpoena has destroyed evidence. But, yes, my SDTs have produced such evidence for me -- but they always leave me wondering if we couldn't have got much more much quicker with a carrot rather than a stick.

Important reminder: taking overt steps in order to help a criminal hide is a crime, Joe. Passively refusing to release a tape is one thing. Organizing efforts to conceal evidence is a crime. In general, it requires only that 1. an overt act be made to conceal what's known to be evidence; and, 2. the requisite intent to conceal a crime can be proved.

IF the "Stop Snitching" campaign ever takes step one to PREVENT a witness from coming forward, they've crossed the line. IF however they are merely advocating that crime not be reported in general, I think that this is protected speech.

And, of course, this IS the whole point. Law enforcement depends on witnesses to voluntarily come forward RIGHT NOW. Only AFTER witnesses have come forward do we even know a crime has occurred in most instances. It's certainly how the evidence is obtained. Hence, the "tip" lines, the calls and rewards for information, etc.

There is CURRENTLY nothing law enforcement CAN do about those who witness a crime, or hear screaming, and who just walk away. This is disgusting cowardice and indifference, of course, but the reluctant witness begins his power over the system right here -- before the cops know he even exists.

If the achievement of truth and justice can come from "forced" sources, then why don't you guys advocate a law requiring the reporting of crime in the first place? Rather than worry about every item of evidence for cases we already do investigate -- having been reported by witnesses who voluntarily came forward -- why not go after the MUCH, MUCH BIGGER set of unreported crimes? A vast pool of injustice awaits you, gents, just 'cause no one picked up a phone.

Even where the witness is known to the cops -- whether from fear or a desire to oppose law enforcement -- the witness who has been ordered and forced into court can have a sudden memory loss -- AND THERE IS NOTHING THE STATE CAN DO ABOUT IT.

Ordering one of these "stop snitchers" into court will make ZERO difference.

In addition, these folks will never set up security cameras, and these folks will never report the existence of "accidental" videos, anyway -- our main source for such videos. Again, the CURRENT system cannot get at these folks.

So, back to the sci-fi examples here. We can indeed imagine a scenario, Joe, that law enforcement somehow happens to learn about a videotape that was accidentally made by a private taper, perhaps even seen by a bunch a people who wouldn't report a crime and would be lousy witnesses anyway, and somehow wasn't already destroyed by these folks the minute they knew what was on it and long before the cops ever got their hands it by sheer luck. Rightee-oh. And the system of "justice" is supposed to hang in the balance?

I'm not "frayed at the edges". Like you, I am frustrated with with certain arguments of yours. Like it is "impractical" for the court to obtain all relevant evidence. That's not the point!! The point is whether the state is just in using power to obtain that evidence. It goes back to rights, and you keep using the "impractical" argument in various forms. James there hasn't been a case where the subpoena has yielded crucial evidence? We've been at it for a week and half and I feel like I am chasing my own tail trying to get you to acknowledge that the witness may possess crucial evidence and in the interests of justice and the rights of the other parties, he should be compelled to produce it. For the most part, James, its been a good debate but like I said to you before, I don't think you made the moral case and we keep retreading the same ground. I am happy to just leave my arguments where they stand. That's all, James.

Regards,
Michael

James:
"The very idea that someone not associated with the criminal would make a videotape of important evidence, and keep it from being duplicated at no expense to himself, even though it would help catch a criminal, is already so far outside of my own experience (and I have used more videotaped evidence than I care to recall) that I have a hard time with this whole sci-fi scenario business in general.
See, if in our absurd scenario, "others have seen the tape" and they are willing to tell the police about it, then they are witnesses to the events on the tape, right? And, the owner's desire to tape it over with porn can still be accomplished -- plus he's a hero! Right?
At least give me a plausible scenario, that's all I ask..."

How about the recent "phenomenon" called "Stop Snitching?" Murder rates in Philadelphia have skyrocketed in the last few years, mostly in urban neighborhoods, and in response to media and police campaigns to get people who know something about the crime to "step up and speak out," there arose the slogan "stop snitching" (along with charming t-shirts like "if you see a cop, WARN A BROTHER written with the Warner Bros Logo.) The stop snitching doesn't apply to criminals, it applies to witnesses, under the fear of retaliation, which there has been plenty of.

************************************************

Spaceplayer Sight and Sound

I base all of this on my real-world experience, Michael.

The very idea that someone not associated with the criminal would make a videotape of important evidence, and keep it from being duplicated at no expense to himself, even though it would help catch a criminal, is already so far outside of my own experience (and I have used more videotaped evidence than I care to recall) that I have a hard time with this whole sci-fi scenario business in general.

See, if in our absurd scenario, "others have seen the tape" and they are willing to tell the police about it, then they are witnesses to the events on the tape, right? And, the owner's desire to tape it over with porn can still be accomplished -- plus he's a hero! Right?

At least give me a plausible scenario, that's all I ask...

Policy should not be made on consideration of the extremely marginal case, in any event.

As for court testimony, I am not suggesting anything specific will or won't necessarily be said at all. Where did you get that idea? There are limitless possibilities for a witness who wants not to answer a question -- it's a no-brainer.

And where on earth did you get the idea that I would employ any "force" inside the courtroom (except to keep order) in order to compel complete testimony from a witness? I most certainly would NOT. Right now, judges almost never hold a witness in contempt for a partial refusal to testify. The remedy -- as I said -- is to erase the whole testimony from the record.

I made no argument based on "need" -- that was you claiming the right to force production of something the state "needs." I only responded, as well, to YOUR absurd argument that "all" of the relevant evidence was necessary. I have never "prohibited" any evidence -- that was YOUR assertion, as well. These were all YOUR shifting justifications, not mine.

I opoose the intiation of force against those who have used and threatened no force themselves.

I hope you've not thrown in the towel, but you do seem to be a bit frayed at the edges...

You write: "The videotape was a classic case of the hatched nature of the given examples. The reason why people set up video cameras is for security. The owners eagerly hand over useful tapes in every instance since this is the reason why they went to the expense of the camera in the first place. Even in an instance of accidental taping, the world only ever learns of its existence because a witness has come forward with it. In other words, RIGHT NOW those unwilling to hand such tapes over do not, since all they have to do is keep it to themselves. In the extremely rare case of being seen videotaping, he need only claim to have taped over the material, and no agency is going to tear his house apart to make sure -- I promise you.

So, in my world, no fewer videos are used. Period."

So that's the logic, huh? James, you are denying any possibility that the police could ever know the existence of the tape without the witness's willingness, except you mention one at the end where the person is seen videotaping a crime--and neglect to mention others like another person having viewed the tape or the known existence of a camera at the location of the crime. Then you deny that there could be any motive to withhold a tape, even though there are thousands of different motives for each action including "wanting to later tape over with porn". Then you even go so far as to deny that the government would seek it out for evidence; sure, the government doesn't want to help its case. What you have created here is rationalistic construct to deny any possibility that a person may possess a tape, the police have knowledge of it, and may seek to obtain--all so you don't have to come to grips with the fact that evidence IS being denied.

You continue the trend with court testimony issue, denying the very possibility that somebody would refuse to answer a question on the stand, because of course he MUST answer with "I'm on meds today" (or some equivalent). All so you don't have to come to grips with the fact that on one hand, you would support the use of force for testimony in the courtroom, but don't support it when the omission occurs outside the courtroom.

At first, I didn't quite see the angle because your arguments kept shifting. First, you made a "need"-based argument, but that was invalid for reasons already stated. Then it shifted, to stating that requiring all relevant evidence was impractical, then changed again saying you were not prohibiting any evidence at all. This last is absurd on its face because the very thing possessed by the witness (including the videotape example), and the very thing which gets omitted by his refusal, IS evidence.

Then it occurred to me, James, you are trying to back in the argument that subpoenas are impractical and therefore immoral. You do this by denying ANY POSSIBLE scenario in which it could yield practical benefit; hence your videotape reasoning above. The flaw in this, however, is that any showing of a case that did produce highly crucial evidence and served justice, your denial of practical benefit evaporates. So your last statement here is still an incomplete case:

" In a just world, the state's very MORAL BASIS for such prosecutions is precisely the fact a witness has VOLUNTARILY undertaken to give evidence where someone's rights were at stake.

No, James, rights are a moral concept and like I've said repeatedly, the moral case is made by dealing with all the rights of the parties. THAT'S the moral case to be made. Again, where the witness refuses to produce evidence, where the jury is prevented from hearing crucial evidence and administering justice, the victim's and the defendant's rights have not been protected. This omission of evidence is an obstruction of justice. This flaw exists by the very nature of you making testimony completely voluntary and I see no way around it, or a way for you to get around the denial of the other rights involved (including the argument against the witness's "right" to withhold evidence).

Since I've repeated myself for the umpteenth time, you can have the last word.

Regards,
Michael

Thank goodness we ain't goin' there!

.

...then I'd REALLY have incentive to argue for subpoenas (more time spet reviewing subpoenaed records...)! 

Your 'shoe' point is taken, but I'm not sure the analogy holds here.  Now if you wanted to beat on me regarding my irrational infatuation with public schools, I'd be in ~real~ trouble!

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

Thanks, but no apology is necessary.

Remember this one? If the government had been providing everyone with shoes for a long time and someone suggested privatizing the shoe business, we should expect the response to be, "What, do you want everyone to walk around barefooted?"

I realize that I should probably be disqualified as a witness on this subject, being an attorney and all. We ARE the main beneficiaries of this subsidy, after all.

I probably wasn't being fair with the "if you were in those shoes" comment, so I retract it with apologies to Jimmy V. and Aaron.

What it comes down to is the realization that in my opinion, the Courts will not work without a subpoena power. 

Since Courts must exist to enforce laws, I think, from what I have seen of actual prospective jurors and witnesses, it will become virtualy impossible to prove an otherwise provable case absent subpoena power, whether criminal or civil.  Consider also the case of witnesses who promse to appear but doesn't--without the safety net of a subpoena, the costs of putting a trial together and getting a no show witnesses with no way to enforce his promise, recoup ther resulting losses, its untenable.  Consider that subpoenas are also used to obtain written information/documents, or to obtain discovery depositions prior to trial.  Abolition of subpoenas means difficulties proving the case at trial, but also makes obtaining information needed to assemble a case atrategy very dificult or impossible as well.  Ask virtually any Judge about how unwilling businesses and witnesses can be in cooperating even ~with~ a subpoena and you'll have a window into how difficult it would be.  And frankly the subpoena power is a nice excuse for people who want to testify, but have some connection to a tortfeasor or accused, ala "I don't want to tell them what happened, but they have me under subpoena!"

I think it merits mentioning that the Founding Fathers took the idea of the subpoena from England, and assumed it was an essential power of the Courts.

There are real dangers to a society which features an ineffectual Court system.  These include the risk of recourse to more private "hands-on" personal attempts at achieving justice, and a general reduction in respect for law and order.  We cannot forget that not everyone will always be a good Objectivist, and we cannot forget that the fear of conviction or being held legally responsible for the consequences of one's actions is a big deterrent to bad conduct.  Reduce the conviction rate, and eliminate a means of reliably obtaining a fair compensatory result in civil cases, and we have problems.

Either one appreciates the impediment of the lack of subpoena power, or not.  I'm not sure anyone has addressed how they expect the Courts to work with one.

So, I think we all agree that government, under certain circumstances, must use force--for example, against a criminal to incarcerate or punish the criminal, or at the border, to keep out terorists, as two examples.

What is comes down to for me is a balance between the inconvenience of the subpoena to the innocent individual versus the importance of what is gained by allowing the Courts a subpoena power.

I obviously place alot of weight on the importance of the subpoena power.  I do not think a Court system can function without one.

So how much of an imposition is it really to comply with a trial, records, or deposition subpoena?

It doesnt involve incarceration, or the taking of too much time or causing the imposition of inordinate expense.  Witnesses, by statute, must be paid mileage for their travelling to give testimony.  Entities who are served with a records subpoena just photocopy their records and turn them over, and can request reasonable fees associated with subpoena compliance.  Compliance usually takes less than an hour to a few hours, and almost never more than that.

We can speak in an abstract way of the "State initiating force" against those who receive the subpoenas, but the force, and complaince, is a de minimum matter, and if it isn't, one can bring a Motion before the Court and Courts tend to be very accomodating to those who are served with a subpoena.

When one balances how the subpoena power enables justice against the extreme ease of compliance and de minimus infringement on individual liberty, to me, its a no brainer.  The case for barring a subpoena power is a sort of impractical intellectual argument which complies with the letter of Objectivism, but not the spirit.

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

I don't believe that I ever suggested that this was solely an issue of the hearsay rules. If it seemed so to you, my apologies. I merely suggested that these rules be modified to reflect my suggested reforms.

The videotape was a classic case of the hatched nature of the given examples. The reason why people set up video cameras is for security. The owners eagerly hand over useful tapes in every instance since this is the reason why they went to the expense of the camera in the first place. Even in an instance of accidental taping, the world only ever learns of its existence because a witness has come forward with it. In other words, RIGHT NOW those unwilling to hand such tapes over do not, since all they have to do is keep it to themselves. In the extremely rare case of being seen videotaping, he need only claim to have taped over the material, and no agency is going to tear his house apart to make sure -- I promise you.

So, in my world, no fewer videos are used. Period.

If a witness is unwilling to answer a material question, he risks the whole of his testimony being excluded from evidence. This is the remedy, and, indeed, the only viable one, if you think about it for a minute. But that's not how sharp but reluctant witnesses do it, anyway. "I may have said that, but, in retrospect, I realize that I was mistaken." "I'm not sure." "Didn't I tell you? I was on medication that day." You can come up with lots more I'm sure, if you think about it.

The subpoenas does not secure evidence. (If anything, it drives it underground.) IT IS A SUBSIDY TO THE SYSTEM.

Perjury is another matter, and I am a firm believer in such laws. In a just world, the state's very MORAL BASIS for such prosecutions is precisely the fact a witness has VOLUNTARILY undertaken to give evidence where someone's rights were at stake.

What I stated from the beginning in the diversion to hearsay was that your exception was not relevant "eyewitness testimony" (and I clarified that by stating "what they perceive") because it doesn't involve hearsay. If hearsay is brought in, then the same rules apply. You tried to make it sound as if all that was at-issue was hearsay--that was my point, James.

James, yes you are not permitting "obtaining" evidence because you just denied them obtaining the videotape if the possessor so refuses. You construe that as "NOTHING"? By what logic?

Yes, the person may continue to omit on the stand, but the question is whether you can call the witness and the lawyers can question him to try and uncover evidence. If may prove futile, it may not--the question is whether it is just to force him to come and testify? Yes it is, because he IS in the possession of evidence and there is no "right" to withhold it, which is implicit in your argument. Because the end result MAY prove futile does not negate that it wasn't a just use of force. If the police get a valid search warrant for a criminal's house and uncover no evidence there, is it then an unjust use of force because it didn't uncover the desired evidence? James, you have to justify your position taking all the rights into account. Again, you are myopically focused on the witness and then dance around the victim's and defendant's rights with such things as a priori declaring the evidence is "cumulative". James, in my estimation you have yet to fill in this hole.

And James, why can't a willing witness omit on individual questions, why is not permissible for him NOT to answer under threat of force here as well? Is this the "initiation of force" as well? Telling the truth on the stand also "implies the presence of (at least some) good motives", right James? What would that do in situations where the witness doesn't like a particular question because of the implications, and therefore decides to omit? A real problem ascertaining the truth and administering justice, isn't it? Now apply that to somebody who wants to omit in toto.

Michael

None of what we just discussed "changes" for the unwilling witness, and this excursion into hearsay was not my idea. It was, however, my fault, but I still don't know what your issue is with adding "unwilling" to the sorts of things that render a witness "unavailable" for purposes of some of the hearsay exceptions. (Right now, "out of the country" may do it.) That is all that I was advocating.

The ping-pong is indeed frustrating. Like this: "... by not permitting the obtaining of that evidence you are preventing the jury from judging based on it." I have advocated NOTHING that would not "permit" evidence to be "obtained." You are insisting that force be employed in obtaining evidence and assuming that force is needed to obtain it. I am telling you that if a witness really doesn't want to tell us something, nothing on earth can "force" him to tell it.

Back to real-world practice. We do not first send out polite requests and then see who's willing to show, only then ordering the reluctant. Nope, every single witness that one of the parties wants gets a subpoena saying something like, "You are COMMANDED TO APPEAR..." In my experience, most would be perfectly willing to appear. For most other cases, it's simply a question of scheduling or compensation for lost work. The subpoena allows the system to bypass such concerns. Why accommodate when a threat will do nicely? The rest of the cases of unwillingness come down to (1) "I'm afraid for my life" and (2) "Don't make me lie!" The first is another case of needed accommodation that IN MOST CASES is simply ignored and rendered unnecessary by the state's OWN threats. The second is case where we probably won't be aided in our quest for the truth by this witness. (Indeed, under most circumstances, attorneys are not ethically permitted to call witnesses they believe will lie to the court.) Under certain circumstances, the previous statements of such witnesses may also be admissible, and that's about all the value we will get from the witness, anyway. As I have said, getting useful evidence itself necessarily implies the presence of (at least some) good motives in witnesses.

[edit.: many of the most commonly used witnesses, of course, like cops, are also required by their employment to testify.]

Yes, James, but by not permitting the obtaining of that evidence you are preventing the jury from judging based on it. Sure, James, they may still be able to achieve a sufficiency without it, but they may not. The point is, in the interests of justice, in judging the case objectively, should they be able to hear it? Your point is that no, because it is obtained by an initiation of force. My point is yes, because their rights don't include the judgment to withhold the evidence and it is an obstruction of justice. We keep ping-ponging back and forth on this issue, and it doesn't look like either of us is willing to concede the other side.

On the hearsay issue, yes, you are right about hearsay if he was brought into testify stating: "I told the police that Johnny had a gun". In that case, it would be hearsay, so I see what you are saying and you are correct. But if he testifying that: "I saw Johnny with a gun", then its non-hearsay. My point, James, is that how is this different than any other witness? If the unwilling witness is brought into testify about his perceptions this is still non-hearsay evidence, just like any other witness testifying. If on cross they want to impeach him with a prior statement, then the same rules for admissibility for hearsay apply. Why does this change for an unwilling witness, I don't understand your point at all.

Regards,
Michael

No, I do not accept the premise that less evidence will show up in court, or that I am "asking" the trier of fact to do with less, as you simply assume to be the case. I HAVE NOT EXCLUDED ANYTHING. I am simply saying the state cannot use force to obtain it. In reality, the expense and hassle of a video tape was precisely endured just for reasons of security, and its owner is eager to show it to us. In the science-fiction world we are considering here, the reluctant tape owner is assumed to be motiveless -- nothing will get him to budge on an otherwise useless tape that can be copied anyway for no apparent reason and, for some reason, this tape is crucial evidence, etc.

What a court needs is all of the important evidence, certainly not all the relevant evidence, which, if you're reading the evidence code, you can see can be excluded for simply being "cumulative."

As to hearsay, I really don't see what you're saying at all. A witness takes the stand. He says, "It was raining that day." But he was called to the stand only because he had told the police on an earlier occasion that he was in the area and outside that day, and, so, he knew the weather conditions. The issue is important. But the fact that he had told this to the police at an earlier occasion does NOT yet come into evidence -- it is "hearsay." The party calling the witness cannot the ask -- "Didn't you also TELL the police that it was raining?" This question still "calls for hearsay." The earlier STATEMENT is still hearsay. Get it?

But IF the other side wants to cast some doubt, they might ask on cross-examination, "Didn't you tell the police in an earlier statement that it was 'barely drizzling' that day?" The witness's prior statement ONLY NOW is admissible hearsay. Why? Because the witness is here and available -- we can cross-examine him. Let's say that in order to rehabilitate the witness, the first attorney then asks, "But you did also tell the police that the streets were wet and slippery that day on page two of that statement?" (in a non-leading fashion, of course.) See, having used the witness's earlier statement to impeach him, the other side ONLY NOW can use the prior CONSISTENT part which would have otherwise been hearsay.

It is not the presence of a declarant that makes his prior STATEMENT admissible, quite the opposite. Let's hear his current memory about it, not what he told someone else about it. Get it? (Sorry for the legal minutiae, folks.)

That's not what you said in your earlier post, you stated "all relevant evidence" ("I mean, LITERALLY ALL") and your argument is an invalid one. Under Fed. Rule of Evidence 402, all relevant evidence is admissible unless it falls under one of the exceptions. The point is, if it doesn't fall under one of the exceptions, it IS admissible. You are trying to create an exception ad hoc and declaring it inadmissible. There are reasons for these exceptions and why the evidence is not valid. For instance, in regards to hearsay there are "infirmities" that weigh against it being considered as evidence (unavailability of the out-of-court declarant, memory, perception, etc.). This is precisely why I didn't want to go into evidentiary rules, because then you would turn it into an issue of those rules and cloud the topic, which you are now doing. The justification and validity for those rules (different for the different rules) and the exclusion of evidence therefrom is a separate question. You are argument is essentially boiling down to: "well, other evidence is excluded, so why not this too?" No, James, that is the question before us: should otherwise admissible relevant evidence be excluded because of subpoena? You are, in essence, declaring it invalid a priori because it constitutes "the initiation of force", but excluding it on that basis is the very issue at-hand here!!

Evidence that is indeed valid if given by a willing witness does not change status by virtue of an unwilling witness. The video tape is still the video tape as a piece of evidence. My point is, you are asking the jury to judge without it, without a piece of evidence that could indeed be crucial and provide sufficiency of the evidence. You are saying to the jury: "Be objective, but I'm not going to permit the evidence that allows you to do so". Jeez Louise, James, can't you see how this affects the jury's judgment thereby making it less objective? That's precisely why Rand at the end of her statement stated: "The court may decide otherwise without me, but I don’t want to testify.’" And you are further throwing in an a priori assumption that there is already enough evidence, well there may not be sufficient evidence otherwise, right?

You are trying to rationalize this ten ways from Sunday and you even go so far as that there would not be "less evidence in court". How could there not be less evidence? You just excluded a videotape that would have been crucial evidence had it been given willingly. (duh) Don't you recognize the possibility that there may not be sufficient evidence without it?

James, the witness's statement to police isn't hearsay, it was NOT made by an out-of-court declarant, it was made by the witness HIMSELF. It is a prior inconsistent statement that can be admissible for impeachment if the witness is allowed to explain himself and the opposite party is afforded the opportunity to cross-examine (Fed. Rule 613). Let me indulge you and say that part of the witness's testimony would involve hearsay; my point is that by excluding his testimony in toto based on the potential of hearsay, you are also excluding otherwise admissible non-hearsay evidence. What kind of rule is that?

Regards,
Michael

No, I suggest that you read what I said more carefully. We do not, never could, and never should present "all relevant evidence available" at any trial. Trials would be many times longer if we even attempted it. As I just said, there are rules of evidence other than "relevancy" which operate to exclude very relevant evidence so "available" that one of the parties had it and wanted to use it. Every jury that as EVER decided anything has done so with considerably less than "all the relevant evidence available." That would be INSANE.

The importance of any omitted or excluded evidence (EVERY time a judge says "sustained" to an objection, for example) depends entirely upon what the evidence excluded is. The sort of epistemological "gaps" you suggest would prevent such a case from ever being decided by a jury -- in criminal cases, for example, the mere rational possibility of the defendant's innocence will compel the JUDGE to dismiss the matter. Such "gaps" would prevent a prosecutor of my sort from even issuing the case in the first place.

So, this standard is absurd, unachievable, and wonderfully unnecessary.

And I haven't "prohibited" a thing. It is you who are demanding that guns be pointed at the innocent. I refuse to accept the premise that less evidence would be presented in court without subpoenas -- just as I refuse to accept the premise that the government needs to educate children or operate the roads.

Absolutely, the cops are "intruding on someone's property," just as they are when they take stolen property from the innocent purchaser, just as when they use force in chasing the criminal in "hot pursuit," etc. And it is only at the physical possession of the property that any "search and seizure" is aimed.

"Hearsay" is a rule of evidence at trial. At that trial what the witness said to the police at any earlier point will always be "hearsay," no matter what witness it comes from. If this previous statement is offered, for example, to impeach the witness ("But didn't you say to the police..."), it is admissible "hearsay," and may be considered by the jury for the truth of the matter asserted, along with anything else in the previous statement needed to explain it. Lots and lots of such hearsay is admissible -- e.g., business records, official government records, dying declarations, spontaneous or excited utterances, admissions against interest, etc., etc., etc. I am attempting no end-run, nor even making a new "exception" to the hearsay rule, but am only suggesting that the status of "unavailable" in some of the existing exceptions include "unwillingness to testify."

1. Read the statement carefully, it says "all relevant evidence available". You are occluding the topic by making sound as a request for the magic "all evidence"--there is no requirement for omniscience. The point is, James, by permitting the withholding evidence, you are sanctioning the restriction of "objective judgment" and "justice". You are asking the jury to make a determination on a multiple person's lives, but asking them to do it without all the relevant evidence available. Whether it constitutes sufficient evidence is another determination, but you've already gone a long way to prohibit that.

Imagine restricting all the relevant evidence in any any other sphere and the devastating impact it could have. Company X is building a office building, and one of the engineers discovers a flaw in the structural integrity that could possibly cause it collapse. He decides to withhold his evidence, what the hell, right? Knowing that piece of relevant data vs. not knowing it, how would it affect your judgment in buying office space there? Notice, this doesn't require omniscience about the building, but it is extremely crucial. Now you want a jury to judge on the same basis about other men's lives?

2. We've already been over this one, he is still intruding on somebody else's rightful property. If the owner refuses, then the police are not initiating force? Its also amazing to me that you would exclude a videotape that could be conclusive evidence in a crime. Your response to withholding evidence that could either exculpate a man or put a criminal behind bars is simply: "Oh well"? Judge without it and good luck to you?

3. James, if the person made such a to police, for instance, it still isn't hearsay, the witness is still telling what he saw. He is not stating what he heard somebody else say to him. Plus, hearsay evidence is determined IN COURT and its testimony about an out-of-court statement by another witness to prove the truth of the matter asserted. That's the official definition. The judicial decision is made in court ("the truth of the matter asserted"), and during investigation they are collecting evidence. Are you trying to do an end-around by reducing all potential testimony to hearsay then giving it an exemption?

Regards,
Michael

1. Well, if ALL relevant evidence is required -- I mean, literally all -- then there would NEVER be ANY trials. Not only is some relevant evidence we possess excluded quite intentionally by the other rules of evidence, but we cannot hope to acquire all such evidence, much less present it to a jury. I agree with Rand, but, as a "philosopher of law" I would add, "all the relevant evidence ~ required to decide the matter."

And, fortunately, nothing like "all" is required. Let me ask you this, when did you say "enough" about O. J. Simpson's guilt? I suspect that it was WAY before you had heard all the "relevant" evidence -- and, like the jury, I strongly suspect that you never heard all the relevant evidence.

2. The "body under the house" was put there by the perp or one of the perps. As I said way down below, it was HIS seizure of the house for this purpose -- or HIS own rightful possession and use of it in this manner -- which brought it into the rightful sphere of a warrant.

3. Oh, no, that's not "hearsay." But, Michael, we only KNOW about the existence of a witness and what he saw from an out of court statement that the witness has already made, right?

I appreciate the answer. Now I want your take on Rand's view of justice:

"Is his judgment automatically right? No. What causes his judgment to be wrong? The lack of sufficient evidence, or his evasion of the evidence, or his inclusion of considerations other than the facts of the case. How, then, is he to arrive at his right judgment? By basing it exlusively on the factual evidence and by considering all the relevant evidence available. But isn't this a desription of 'objectivity'? Yes, 'objective judgment' is one wider catergories to which the concept 'justice' belongs." (italics mine).

Now, onto the body under my house, they will be intruding on my property if I refuse, so you now exclude this? You seem to be going back and forth on the issue of physical evidence.

James, again, I was not talking about out-of-court statements. I was talking about what a person perceives--eg. witness stating: "I saw Johnny shoot the victim point-blank in the back of the head". This isn't hearsay.

Regards,
Michael

"And all of ... Jim's arguments would be swept away the minute one of you or your loved ones was the victim of a violent crime, and the several witnesses were recalcitrant."

Since I have been the victim of a violent crime -- for which there were no other witnesses or ANY means of justice -- and since I have spoken to dozens and dozens of other crime victims in a wide variety of circumstances -- and since I have spoken to hundreds and hundreds of witnesses to violent crime of varying states of cooperativeness -- I can safely say that you are dead wrong. Being a "victim" -- in ANY sense -- never fills me with a desire to push other people around for the sake of my needs -- as it does so many other attorneys. (Present company excepted, of course.)

Which reminds me, folks, should a crime victim be legally REQUIRED to report a crime (as I did)? Isn't the victim endangering others and don't all the same reasons behind the subpoena itself apply here? Only in a morally stronger sense -- without the initial report, prosecution, truth and justice are impossible. (Damn "aider and abettor"!) And after all, such coercion is only a "response" to the criminal's use of force.

If not, why not?

No, not if the "availability" of that evidence comes at the expense of someone's rights. I don't think any trial should happen if there is insufficient legitimately acquired evidence to know the truth.

I disagree with existing law about search warrants. While in most cases, physical evidence would be subject to warrants, it is because of its relationship to the defendant, e.g., a bank's agency relationship, etc. But the mere existence of "probable cause" does not confer upon someone the right to search or seize some item of property in my view -- yes. As I say, this is not a "right to withhold evidence" (as I think you put it off-line to me), anymore than the requirement for "probable cause" itself is.

I still don't know what you mean about hearsay. "The sky was dark that day." "Joe was holding the gun." These things come in as "hearsay" exceptions every day, depending on the circumstances...

I wonder if any of the subpoena advocates would like to defend testimonial privilege?

It's not just clergy, physicians, shrinks, attorneys, etc., it's spouses, too, who are often exempt from testifying.

"Truth" is currently not the main value of the current system of (sometimes) coerced testimony, folks.

I suspect that everyone's first instinct will be to want to force all of these types to testify, too -- in the quest for truth, justice and the American way -- but I would ask you to consider the consequences to law and medicine and psychology. If you decide that these privileges are important, after all, then consider the hash you just made of whatever your original argument for pointing guns at other witnesses was.

This isn't evidence that you cannot locate, this is evidence you know exists, so that doesn't answer my question. My question is: does your concept of justice include judging by all the relevant evidence that is available?

James, before you stated that the videotape in Jon's example could not be obtained. So if there is probable cause for it, do you accept that it can be obtained? And if the person holding it refuses, are you initiating force against his property?

Lastly, in regards to eyewitness testimony, I was talking about what the person perceived, NOT out-of-court statements issued by somebody other than the witness to prove the truth of the matter asserted. Where the witness is testifying as to his perception of the events, how do you throw this under hearsay?

Regards,
Michael

A defendant has a right to all the exculpatory evidence the state has, and the right to obtain every item of exculpatory evidence he can acquire without initiating force against someone else -- just as I believe the state does. His "right" -- just like any of his other rights -- does not give him the sanction to use force against someone else. Nor does a victim's "rights" give the state or the victim the right to do so.

The quality of the "need" does not matter in the slightest. Need of ANY kind is no claim on the time or energy of someone else. Period.

That a criminal has violated someone's rights does not give anyone the "right" to use force against an innocent third party (this is where John A. goes off the tracks.) The moral use of retaliatory force is limited -- it gives no warrant to use force against the innocent. (This is to be contrasted with civilian deaths during war. It is precisely the fact that we are in control of our own jurisdiction that the cops must follow a set of rules not applicable to armies in the field. Even so, our right to self-defense does not give the U.S the "right" to bomb Japan right now, e.g.)

The idea that all the relevant evidence is ever available, or needed, or ever could possibly be used, is absurd. The question is: is there enough evidence at this time to get the truth? The use of subpoenas, as I have repeatedly indicated, cannot assure this -- any more than the absence of subpoenas would prevent it.

As for warrants, you have read me right. No, there is no "right to withhold evidence" at all -- but, just as the law says today, I would require the state to prove its "right" to search or seize the property in question. This places the burden on the right foot, if you will. I oppose the initiation of force against BOTH persons and property.

As for the hearsay stuff, I don't know what you mean. "Eyewitness" hearsay is often allowed into evidence, and a witness's previous statements are always admissible for impeachment. There currently exist a number of hearsay exceptions which require a showing that the declarant is "unavailable" (e.g., in foreign country, dead, couldn't be found with due diligence, etc.). I am merely suggesting that unwillingness to testify should also qualify.

"Again, I think we'd see how your abstract analysis would change if you were in this passenger seat to hell."

I class this with 'if you were ever really poor, you'd support welfare', 'you'd be for banning drugs if anyone you were close to died from them', 'you'll want social security when you get old', etc.

"...and not found others liable for his actions."

I didnt ask anyone to be liable for the actions of another.  I asked the bar to be responsible for the actions and inaction of its employees in the face of a completely preventable shooting.  Eject the guy after the first fight, call the copes, warn the crowd, anything.  Again, I think we'd see how your abstract analysis would change if you were in this passenger seat to hell.

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

Scott-
Thanks for the explanation. Sad though the man's case is, I'd have put 100% on the shooter and not found others liable for his actions.

Jon-
I wouldn't have found the bar responsible for an individual shooting so it's a moot point. Although if we're projecting hypothetical outcomes from my positions, the immigrants wouldn't fear deportation for bringing any legal attention to themselves either.

James said: "I agree that it is under most circumstances immoral to refuse to give evidence where it is needed. I do not see how it is "moral" -- or practical -- for the state to initiate its own force to obtain it."

James you will probably never see it. As far as you see it, any behavior that you label passive can never fall under legal purview. As long as you hold that position, you will never believe subpoena powers are a legitimate governmental power. If I sat in the same room and saw someone murdered in cold blood, and I said nothing, I would be as you call it just a "passive" observer. You hold that my action is immoral but that it doesn't meet the definition of what ought to be illegal. Yet any choice a person makes that determines perpetuating an injustice, whether it is a choice to be passive or not, is and ought to be illegal. The distinction here is whether the act (in the case of being passive) is perpetuating an injustice. That is the threshold one must attain before labeling an action not just immoral but also illegal. We do and can hold people responsible for their inaction, and we are justified in doing so.

You call subpoena powers an "initiation of force" but it is just the opposite. As it is the function of government to attain "justice", and with that comes a methodology of how to best attain justice without destroying it, which such a process is called responding to an initiation of force, which is more accurately then described as a retaliatory force.

Now one must have "just cause" to use subpoena powers. You keep using the scientist's example but we need more specifics. Does the scientist have knowledge that can help the war effort that he is with-holding? Is it a just war of self-defense? If you're going to start throwing out hypotheticals, you're going to have to be more specific.

...and it was later discovered (rumor) that he was an illegal Mexican immigrant gang member who immediately returned to Mexico, and as far we all know, may be in the US again under a different false identity with a  new false SS# and DOB.  Fear in the community of this gang was a reason that I was given for some of the witnesses not cooperating.  Another was that this was evidently a known-illegal immigrant bar and alot of the people there were afraid of being deported.

The suit was against the bar, because there are "Dram Shop" laws which cap a liquor-server's liability.  For example, if I could prove that you owned a bar, and you served a guy, and served him to the point of oblivion, and he got into a car and killed somebody, under common law, I could seek to recover damages from you for your negligence in overserving the AIP (Allegedly Intoxicated Person).  The lion's share of the liability obviously rests with the drunk guy (uh, like 99.99%), but what if he is uninsured and destitute?  You can sue whoever is culpable and recover their proportional share of liability.  For example, if there are $100k in damages, and one person causes you harm, you can recover only your actual compensatory damages--$100k.  If 5 people combine to cause your harm, and your injury is owrth $100k--you can still only recover a total of 100k.

In light of the fact that it is obvious that the main fault bearer is clearly the drunk actor, not the bar, there are statutory limits on what you can recover from a bar under the Dram Shop Act in Illinois.  Currently, it is about $54k, and if there is a loss of consortium/loss of society claim by a spouse, another $56k or thereabout (ergo, $100k).

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

Don’t forget, your position would have had him walk.

Scott-
While you're sharing your client's case with us- Did the shooter even have $100K, let alone $6.3M?

You write: "I still don't see the difference of "apples and oranges." A government's initiation of force is still a government's initiation of force, whatever the need. Someone else's "rights" can never require violence against me -- as a matter of routine legal process."

Wait a minute, James. That's the problem--you are throwing it all under the category of "whatever the need" without observing the crucial distinctions. Are you saying a defendant does not have a right to exculpatory evidence if it exists? His life is at stake, you know. Are you saying that justice done on behalf of the victim is merely a "need"?

James, does your concept of justice and ascertaining the truth include judging without all the relevant evidence? I am very interested in your answer to this.

Secondly, before you stated search warrants were a "different animal" and that physical evidence was "different in kind". Now you are advocating withholding a videotape of a crime? You are sliding down the slippery slope. James, it often occurs that while somebody is videotaping an event when the commission of a crime occurs, now you want this videotape evidence withheld as well? Say goodbye to the Zapruder film!! I just heard an interview with a guy who wrote a whole book debunking conspiracy theories in regards to the Kennedy assassination based on an extremely detailed and scientific examination of the Zapruder film. Where would the truth be without it?

In regards to your statement about hearsay, well, that is an argument against the admissibility of certain hearsay (which you didn't specify), and such inadmissibility could equally apply to a willing witness. In any event, it wouldn't apply to eyewitness testimony.

Regards,
Michael

"But if push came to shove, I'd have to argue against subpoena powers. The argument that the subpoena is one of those special and limited powers that we give to the state in order that justice may be done, in my mind is outweighed by Jim's argument that a subpoena requires the violation of the most fundamental property right of all, that of the person. In that respect it's not the same as the power to search."

And all of your and Jim's arguments would be swept away the minute one of you or your loved ones was the victim of a violent crime, and the several witnesses were recalcitrant.  Or on the occasion a loved one were paralyzed by a clearly wrong, drunken tortfeasor, but the doctors, the billers, and the occurrance witnesses didn't feel like cooperating.

Remember, whether it be a criminal trial or a civil, the moving party has the burden of proof, and ONE SHOT at proving their case.  THere are no 'do-overs' and one missing witness ends your case, forclosing any possibility of a conviction or just compensation for a catastrophic injury.

The Fifth Amendment is an acknowledgement of the Founding Fathers that every individual has the right to withold assistance from the State, which has every advantage--money, manpower, influence, home court advantage (most Judges are former prosecutors), from convicting the individual.  It is a very important exception.

I am in favor of placing every impediment in front of the government, but certainly laws should not even be passed if we are not going to allow the Courts the tools it must have to enforce them.

I tried a case for a guy playing pool at a bar (tavern? pub?).  Some drunk guy gets into a fight.  The bar keeps serving him.  He gets into another fight.  They keep serving him.  At this point, he cannot stand and the bar keeps serving him. He is not ejected, and and the police are not called even though the last fight breaks the men's rooms door off its hinges. He tells a bouncer/doorman that he is "going to get" the guy he was fighting with.  He leaves the bar.  He goes to his car.  He returns to the bar.  The doorman pats him down.  He feels a gun in his waistband.  He does not call out "He's got a gun!". He does not tell the bartender, 8 feet away, to call the cops.  He does not take the gun, even though he has his hands on it, and does not restrain the guy.  He talks to the guy for a few minutes, tells him to go home.  The guy  says OK, and leaves.  He walks around to the side of the bar and shoots through a boarded up window, striking my client in the back 3 times.  My 31 year old, father of a 1 year old, married, Union marble setter is paralyzed from the nipple line down.

Out of a crowded bar, not one person would come forward voluntarily.  Investigators could not find anyone to testify.  I was able totrack down the bouncer.  He told me "What's in it for me"  and said that he was shot, too. I had to have him arrested by the Cook COunty Sheriff and brought to Court in an orange jumpsuit to testify.  HE WAS THE ONLY WITNESS TO THE ABOVE DETAILS.

Without him, there was no case.

With him, the jury returned a 6.3 million dollar verdict.  WHich was reduced to the applicable Dram Shop limits of about $100k. 

$100k for a lifetime in a wheelchair.

Remeber this story the next time you consider a trial subpoena as too much of a burden on your rights.  Remeber it the next time someone tells you that personal injury cases are out of control.  Far more people end up with less than they deserve than the few anomalies.

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

So I'm picking a jury before with a Judge I do not care for, and who does not care for me (he has invented entire areas of law, and has tried more cases than anyone in the country, don't you know...just two of the utterly ridiculous falsehoods he inflicts on lawyers in his courtroom).  There is a list of 20 or 30 standard questions about whether the people who are empanelled are qualified to sit on the jury.  One the later questions is one that is posed to the entire venire: "Is there anything else that we haven't talked about that you would like to talk about in private as to why you think you might not be on this jury?"  One guy raises his hand, so the defense attorneys, the Judge, the prospective juror, and myself, go in chambers. 

The Judge asks the guy what his issue is.  The guy says he fought in Vietnam, he votes in all the elections, pays his taxes, and feels like he has done his duty to the US and that he shouldn't have to sit through a jury trial he isn't interested in.

The Judge goes batshit on this guy.  The Judge essentially tells the guy that that is no excuse, he will not excuse him, and he wishes he could meet the guy outside without his robe and he would 'straighten him out' about the importance of jury duty.  So, the Judge basically threatens to kick this prospective juror's ass.  Nice.  Real nice.

This Judge, it seems, believes in corporal punishment to enforce Jury Summons...

Scott DeSalvo

Quidquid latine dictum sit, altum viditur!

Jon-
For the hot pursuit/camera specifics already given I agree with James. One variant I'd clarify is if the criminal (without your permission) passed through your yard and is now elsewhere and you refuse police also wanting to use your yard as a shortcut to catch him, you may be doing something foolish and immoral, but not criminal.

“In the other case, you admitted willful deception”

No, I explained that it was a joke intended to goad you into backing up your claim…

====
James: “[btw, since the release of PARC, I have heard that the housekeeper did say that she was misrepresented.]”

Jon: “I heard that she said she was accurately represented. Of course, it would be willfully irresponsible for us to engage in this stuff without disclosing what we heard and from whom. You first.”
====

That was a cute way of saying ‘back up your claim with something better than whispers, otherwise any one of us can pull the same crap.’

Yet you somehow recall me admitting willful deception. James, you are just plain not reliable in your recollection of things.

Go back and check this thread. We have dealt with the “other discussion” twice now, both times because you went back to add a little “edit” to a post. (Both times I almost missed them. Perhaps there are more, which I have missed.)

What’s misleading?

We’ve gotten into the housemaid discussion here twice so far. First after you asked about my source, and second just now when you alluded to my “lie.”

... the one trying to keep a misleading "scorecard"?

Jim’s re-raisings of the other discussion (so far) on this thread: 2

Jon’s: 0

No, Jon, in the one case, I was obviously honestly mistaken about what Rand had not said (for one thing, notice how readily I admitted the error -- and that it was something easily verified one way or another).

In the other case, you admitted willful deception, and the admission wasn't necessary.

Or, do you doubt that Peikoff and I discussed this? Several others were present and I think it was even recorded. Why don't you ask him?

You know, Jon, you have to wonder at the science-fiction pretzels you're willing to work yourself into in the pursuit of your vendetta. Home owners who object to the cops' entry, but not the crook's? Or, who object to the entry of the crook, but want no enforcement of the trespass? Or, who set up a secret camera recording every mundane event, but when it captures a crime, he withholds it -- from its only possible use?

“[edit.: If you keep it this abstract, Jon, I will respond for the sake of others, but factual assertion on your part will be considered a possible lie intended only to provoke a response.]”

You mean assertions like, “I have discussed the issue of subpoenas with Peikoff -- this IS something Rand never addressed herself.”?

Oh, then the cops are chasing not only a crook in the original crime, but a criminal trespasser (and therefore a threat to others on this score, too)! Otherwise, yeah, you did very much do something. So, keep working on that one, Jon.

But, with the video tape, I will concede that my principles are nothing like the current law -- and that your point is well-taken here, Jon. This is precisely the analog to testimony (assuming no other relation to the crime exists) except that it is physical property. I would not permit this to be subject to warrant or subpoena (although most subpoenas for physical evidence -- SDT's -- are obviously a very different matter, for the reasons mentioned way down below.)

[edit.: In your "hot pursuit" example, of course, it's hard to imagine that the DA will need the tape at all. And most folks set up video cameras on their private property precisely in order to catch crooks, but no matter.]

No, I did nothing in both cases. I didn’t “let the crook IN.” He ran in despite my protestations.

“Since to knowingly harbor a criminal on one's property is to ~ truly ~ aid and abet the crime -- and is an active use of that property”

No harboring, he’ll keep on running, I’m sure. ‘Get approval from the next yard owner!’

What if my security camera captured him running through…is my refusal to turn over the tape “an active use of that property”? (I “let” the perp get recorded, and won’t let the cops see.)

That's right. In one case, you have DONE something (let the crook IN while keeping the cops OUT). In other, you have done NOTHING. This is the legally significant line. (Duh.)

[edit.: If you keep it this abstract, Jon, I will respond for the sake of others, but factual assertion on your part will be considered a possible lie intended only to provoke a response.]

Now let’s say I don’t stand in the way, the pursuit ensues, but the perp gets away through my yard.

My refusal to allow pursuit WOULD HAVE constituted abetting, but my subsequent refusal to testify as to WHO I saw running and getting away through my yard WOULD NOT?!?

Since to knowingly harbor a criminal on one's property is to ~ truly ~ aid and abet the crime -- and is an active use of that property -- surely, refusing the cops entry UPON HOT PURSUIT also qualifies. (Duh.)

Of course, "hot pursuit" already implies that the cops have no chance to ask for consent to enter -- and the law therefore reasonably imputes the consent from the owner to enter under such circumstances, since the vast majority of folks do not want a crook entering their home, and do want the cops to arrest the guy. But, as I say, if the owner were there and denied entry, this would be a clear case of actively aiding the crime and actively using one's property to do so, in any event. (There's a concept worth contemplating for a minute...)

Such a "hot pursuit" entry does not, of course, give the police carte blanche to search around, either -- even under current law.

And I should be allowed to bar from my property a cop in hot pursuit, because it isn’t assured he’ll catch the perp, anyway. And he got a good look already, right? So get busy with the suspect sketch—maybe he’ll be caught even without my unwilling, forced and enslaving participation.

I am by no means saying that an unwilling witness won't necessarily tell the truth (with or without the threat of perjury laws) -- I am saying that such a truth-telling witness would very likely be a willing one if the system would be only a bit more responsive his needs and concerns. The subpoena is a good way to ignore these.

I am also saying that ALL witnesses have "motives" (sometimes good ones). Let me suggest that the quest for truth can only be aided by the good motives and, indeed, already implies the presence of such motives.

I am also saying that a ~ truly ~ unwilling witness will very, very frequently try to screw up the quest for the truth in any event.

No, the possibility of perjury doesn't make the whole system a joke -- we have the means of finding the truth, but they all involve a comparison of evidence, i.e., the relationship between all the facts -- including a witness's credibility.

No, the possibility of unenforceable perjury only makes the subpoena a joke. Often, a witness is summoned with a full awareness of his uncooperative status just to get in some item of hearsay. Talk about a "joke." Change the damn rules governing hearsay -- admit that unwilling witnesses are already "unavailable" for that purpose -- rather than subject the system to a charade.

I still don't see the difference of "apples and oranges." A government's initiation of force is still a government's initiation of force, whatever the need. Someone else's "rights" can never require violence against me -- as a matter of routine legal process.

That is true with a willing witness!! After all, he could perjure himself, thereby prohibiting the truth. By that logic should we allow a witness to perjure himself because the truth isn't necessarily the outcome?

The "truth" is not assured with a subpoena, nor is the "truth" necessarily denied without one. The "truth" may not even be helped along with it.

James,

You are turning an alleged "need" into a claim of right. The scientist's refusal doesn't impede a right to self-defense--it still exists!! The scientist gets to chose the ends which he wants to pursue, and how does this necessarily preclude my right to self-defense? Just because all the greatest minds aren't compelled to work on the police force that negates my right to self-defense? I don't think so.

The difference with evidence is that it DOES necessarily impede another's rights because now the truth is prohibited. And to what end, James, justifies the withholding of evidence? The scientist has his the choice career, and the evidence serves this person's life how, exactly? He needs this body under the house so he can remain free? Where does this withholding of evidence stop, James?

Regards,
Michael

The innocent bystander's refusal to do X "impedes" someone else's rights? An "omission" is a "commission" that can be legally compelled?

The initiation of force against A morally justifies B (or the state) in initiating force against passive and involuntary witness C?

Then I still don't see how a scientist's (he, too, may have unique and vital knowledge) "refusal" to help a war effort doesn't "impede" efforts to protect the "rights" of the "victims" of an invasion -- justifying our drafting him. I don't see how a citizen's "refusal" to pay taxes does not also "impede" the protection of ALL crime victims' "rights." Don't tell me that the ninth percipient to same event is just as "necessary" because I know better -- and war seems to me to be the biggest "emergency" of all.

I agree that it is under most circumstances immoral to refuse to give evidence where it is needed. I do not see how it is "moral" -- or practical -- for the state to initiate its own force to obtain it.

... by staying quiet, one commits an act that violates the rights of another. Commission by omission, as I said originally. Fair enough. And that's a good point about the slippery slope being the other way. James?

Rights are applied in a social context, outlining the negative aspect of the use of one's judgment and action where it impedes another's judgment and action. In the case of lying or cheating on one's wife, it is not a violation because it has not impeded the wife's freedom, although it maybe immoral. Here, is where I state the hole in James's argument lies because the person refusing to produce the evidence is impeding both the defendant's and the victim's rights.

The slippery slope is the other way, Linz, when you started allowing people to withhold evidence. On what basis? Why not on the stand? If one can omit in toto, why not partially and why is this not a valid exercise of one's judgment? Why does the court demand the "the truth, whole truth, and nothing but the truth" under threat of punishment? Its not the truth for the sake of the truth, but a recognition that the state administers justice on behalf behalf of the victim, as well as the defendant's right to exculpatory evidence, etc.. THIS is exactly the point Rand was making when she wrote:

"“No, not really. I am in favor of those laws because if a court case, then somebody, presumably, has been hurt. The witness has knowledge that is relevant to the issue, and if he refuses to testify he is the one who is then violating the rights of the defendant, or whoever is involved. If either party needs the information which you have, you couldn’t have a rational or an honest reason for refusing that information because you are interfering with justice then."

And apparently the framers agreed.

Linz, I have been unbelievably busy building my new home and moving into it. I promise I will be more active in these forums as soon as my life is less chaotic!

James your only trying to muddle the issue here and shifting the argument. Due process must of course still remain an objective process to which I never argued against, and due process is the methodology to which the end goal is attaining the truth in order to seek justice. Taking away the 4th 5th and 6th amendments is not what I propose as it would undercut the very notion of due process and put that important methodology at risk. To give police dictatorial powers will not at all result in any kind of due process, and thus will not reliably result in arriving at the truth. Thus the guilty and the innocent may be sent to jail, and that is not justice but the destruction of it. A subpoena is not a violation of this due process, it is in fact part of that process. Linz called it "obstruction of justice" and any obstruction of justice is an injustice, and ought to be a crime. Yes it is possible the government can overstep its authority and abuse this power (but this is an untenable position since government can with any power its given abuse it and overstep its authority) but the question is, is there a self-correcting mechanism for any possibilities of abuse? I believe there are, (appeals, civil litigation) Government ought not to subpoena at the drop of any subjective whim. A subpoena must follow rules for due process, and must only be given if there is a good reason to believe someone has information in their possession that can prove someone's innocence or guilt. This is akin to the scientific methodology, not following in strict accordance with the scientific methodology will not yield reliable results, i.e. double blind experiments, peer review, etc. It is similar in a criminal justice system. So the question is, is there an objective methodology we can implement to insure accurate and productive use of subpoena powers? Yes, it is called "just cause" to which the particulars of can be found in any legal text book.

Precisely the same arguments were once used against dropping torture as a routine law-enforcement technique -- and against the concepts behind the 4th, 5th, and 6th Amendments. Why make cops get warrants -- it only gives the crooks a chance to escape and destroy evidence, as history proves over and over again? While we're at it, that unanimous jury thing and "beyond a reasonable doubt" thing also let many a killer walk, so let's put that on the table -- if "indifference to crime" is the only concern. If we really want to catch criminals, there are far more efficient means...

No, the same principles must apply across the board.

I was hoping you'd ask me that! I think it does go to the heart of the matter but not yet convincingly.

So—what is it about *this* immoral exercise of judgement that makes one have no right to it as opposed to *other* immoral exercises of judgement to which one *does* have a right?

Linz

In the earlier post on my judgment comment, you stated that you thought it was the "nub". So what's your issue now?

Michael

Welcome back! Where did you disappear to?

I'm sure we all agree that withholding evidence is immoral. Question is, should it be illegal too?

Since we have a category of crime called "being an accessory after the fact" and another called "obstruction of justice" I would have thought so. But what is it that keeps this off the slippery slope? Michael Moeller's earlier point that withholding evidence is not a proper or valid exercise of one's judgement, and therefore not within the purview of rights, didn't do it for me.

I don't doubt for a second that this is yet another instance of Peikoff's and Valliant's rampaging rationalism, only it's damned hard to prove in this case.

(Lest there be founcings, that was a tease. Lotsa smileys. )

Linz

Linz said: "Sometimes omission is commission."

And that in a nutshell is precisely why not offering evidence that you have that can prove someone's innocence or guilt is immoral. Omitting evidence in a criminal trial means one is complicit in furthering an injustice. It is a choice not to act, which leads to the consequence of perpetuating an evil. It is not surprising people like me, Jon Letendre and Linz understand this principle, and others on this thread who in the past for example have advocated surrender in Iraq don't understand this important concept, because they think man lives on an island devoid of contact with others around him, and all choices a man makes must have no regard on the consequences that may befall his fellow man. But this is a rationalistic approach. Man does not live on an island by himself and his long term survival depends on mutual benevolence between men. Another words what is being expressed here is a philosophy of depraved indifference.

I'm not shocked to hear it. And equally not shocked to hear the brilliant mind of Ayn Rand understood why subpoenas are not a violation of man's rights.

Ross said :"And, I didn't claim that "witness testimony" was the most fundamental right of all. I stated clearly that the right to remain silent is a fundamental right, so important that the Framers created an amendment to safeguard it."

Yes Ross but your right to remain silent only applies to self incrimination. But you don't have the right to remain silent if you are compelled to testify and give information about someone else's guilt.

Bill said: "I often think of a fully free society like this. Just imagine that tomorrow you awoke into a fully free limited government. Now jump forward three or four hundred years. By that time there very well may be no government as we think of it today. A fully rational society with centuries of history and development at being rational and free – can you imagine!? Who knows what that world would look like."

Bill that is a nice thought but I can't imagine it and I suspect it is an impossibility for the reason we are not omniscient beings. That is the data sets each individual operates from is different. We each have different experiences that may lead to disputes over some of the particulars of reality. We may one day have a society where all individuals agree in principle, but you will never have a society where everyone agrees on the particulars. We don't all share the exact same sets of sensory data. That is why you can have two objectivists living as neighbors, the most rational people you can find on this planet, and the possibility would still exist that these two neighbors could be in dispute over a property right or one claiming a breach of contract over the other, because both actors are operating from different sets of knowledge.

“there's an emergency context argument to be made for police crossing someone's property in pursuit of a violent criminal.”

You would give this a pass, even though the property owner, who presumably has his reasons, insists otherwise. Your reason is it’s an emergency pursuit of a violent criminal, i.e., he’s going to get away without immediate pursuit.

But you would not give a pass for the warrant for my tape, which is also in pursuit of a murderer who will get away short of access to the tape.

I don’t see why you support one but not the other.

Jon-
The battlefield context remains one of temporary emergency, vs routine law enforcement operation. You can draw analogies for military and law enforcement that go the other direction. E.g. there's not an argument for the military to take your land to use as a peacetime barracks, but there's an emergency context argument to be made for police crossing someone's property in pursuit of a violent criminal.

As for the camcorder case it also begs questions (how does anyone know the camcorder was actually recording?). Given what you've presented I would say that no one else can truly claim a right to your tape. If it was somehow known you had such a tape and didn't want to lend/sell it or taped over it with porn, you wouldn't be guilty of a punishable crime, yet I'd hope for serious social lashback for you being a dick. And if I was a relative/friend of the victim I may be tempted to try to steal it (and accept the consequences for my transgression).

I wrote, “Because even if we argue that the invaders are the initiators, there is no way around the fact that a ‘temporary use’ of the owner’s land is against his judgment and will, he has no connection to the invaders and his land was never used in a crime. Excusing the forced use of his land against his will conflicts with: “If the state can ever initiate force against someone who has never used force himself, then we have lost the key political principle for which Rand argued.”

(A) One response could be: The state does not initiate force against the unwilling landowner. The invaders are initiating force, the state is retaliating, and the landowner is an unfortunate, innocent bystander.

(B) In that case, the state does not initiate force against the subpoenaed witness. The criminal initiated force, the state is retaliating, and the reluctant witness is an unfortunate, innocent bystander.”

You responded to (B) with: “In any case, by your logic:
When our country is at war the opponent presumably initiated force. Therefore, when our government drafts teenagers into the armed forces to defend itself, the state is merely retaliating - and the draftees are really poor, innocent bystander victims of the other nation's aggression.”

My point was that (A) appears to be James’ logic for his acceptance of forcing a farmer off his land and using it in a battlefield context. My point was that I perceive an inconsistency in James because he uses this logic (in A) for justifying such ‘temporary takings,’ while rejecting the same logic (in B) when we come to subpoenas.

He doesn’t engage me anymore, because he says I am a liar. So I don’t expect him to correct me in the case I misunderstand his logic in justifying ‘temporary takings in a battlefield context.’

If you can show me how I misunderstand his actual reasoning in justifying those takings—which go right to the farmer’s liberties, not just his mere property (property never used in a crime or controlled by a perp)—or if you can show me that (A) is his actual reasoning, but (b) is not an example of the same logic, then I will see that the inconsistency evaporates.

As it is, I cannot reconcile his support for (A) but not for (B.)

Yeah, if you are arguing on the basis of what the law should be, then fair enough. My point to Ross was that if he was construing the framers creation of the Fifth to safeguard the "right to silence" of all witnesses (including non-self-incriminating circumstances), it was unsupported by the constitution.

You're correct, there is a complex interplay with evidentiary rules, and from my reading of case law, there is a lot of ambiguity. In my view, even though the constitution is silent here, it is still a matter of whether those rules violate the constitutional rights. To go into this would take us pretty far afield, so I am also concentrating on what the law should be.

Regards,
Michael

I disagree with the Framers about several things. Eminent domain is a good example. (Permitting slavery is another.) I also would note that providing a compulsory process for obtaining evidence was only to assure that the accused would have the same powers the state already exercised in obtaining ITS evidence.

Now, as I say, a judge can order the witness to talk if there is really no chance of self-incrimination -- e.g., when the person has been granted legal immunity by the state. The Framers certainly meant to forbid forced self-incrimination, but they did not mean to eliminate the laws governing the admissibility of evidence, either, e.g., relevance, foundation, etc. That explains the finely crafted phrasing, to some extent.

Upon reading the Fifth and the Sixth together that doesn't make any sense to me. Why didn't the framers simply state that "any person has the right not to testify in a criminal case"? Furthermore, why then turn around in the Sixth and state that the accused has the right to a compulsory process for witnesses in his favor, if any witness could then just exempt himself by claiming self-incrimination? It would render any compulsory process meaningless. Reading it together with the Sixth, it seems to me that the framers contemplated this and decided only to have a self-incrimination restriction.