Decisions in Clark, Brumfield, and Sons of Confederate Veterans

Posted: June 21, 2015 by Nazim in Confrontation Clause

In addition to discussing the decisions in Ohio v Clark, Brumfield v. Cain, and Walker v. Sons of Confederate Veterans, Brett and Nazim discuss (1) which case would be worse to lose, Obamacare or Same Sex Marriage, (2) who won the Confrontation Clause Wars of 2015, (3) what is the best way to stop Nazim from criticizing the TSA, and (4) what happens when your license plate contains accidental explicit sex language?

Internet-enhanced unendorsed annotations:

Nazim: The confrontation clause is there to protect the accused, not the victim, and in this framework, if a statement is THE statement that determines guilt, it should be subjected to the scrutiny of the full court. Otherwise, for example, one manipulative parent could send another to prison by making their infant child say one bad thing. And this isn’t one of my cuh-razy opinions: we have a firm policy in this country of protecting the innocent at the expense of letting some guilty walk free. So, in the sense that this case makes this bad outcome more likely, it’s terrible to shift the focus on the victim: confrontation clause analysis should remain focused on the statement’s impact on the accused.

Brett: Ok, so while I hear you on your broader point, I have some follow up points so that I can get more of your context.

(1) Do you think this is the rule, or that it should be the rule?.(2) Does this change your position on Clark, because during that episode you came out on the side that the statements from the child should have been admitted, along with all the members of the Supreme Court.  I wonder now how you could have that test and still fall on the same side?

(3) Is this a product of you being bitter over (a) my crushing victory in our Ohio v. Clark discussion, (b) my utter domination in twilight struggle, or (c) my ravishing good looks?

Nazim: 1) I defeated you last time we played TS, in fact I ploughed you in the early war or just thereafter with solemnity, if I recall, so we shall all count in metric from now on.

3) this indeed changes my position since we recorded on clark and on cloture, unless I’m in Denver, in which case no position is default.

3) Well, SCOTUS makes the rules and now the rule is that the child’s point of view counts, so my rule is not the rule, but it was until the child tattled, and it should still be. In other words, I’m with Scalia’s concurrence: I don’t mind it in this case, but it’s bad case.

Brett: So what would be your position on a Dying Declaration? A person gets shot and IDs their killer but dies later. Even though that is a hearsay exception, would that be excluded under Nazim’s Confrontation Clause? Because I think that would be get in on Scalia’s Confrontation Clause.

Nazim: I think all three of us agree on that. I think the word testimonial useful here. The dying guy isn’t particularly trying to get the killer in prison. It’s more like a dying invective, a curse, a “screw that guy” kind of a thing. So it gets in.

Someone who goes to the cops and says “so and so killed me” is specifically trying to get the other guy in legal trouble. That needs to be cross examined.

A more borderline question is if someone drags themselves to the police while bleeding to death, a trail of blood in his wake, and the files a murder report shortly before dying. Also, the trail goes right past a hospital right next to the police station. That’s right. The victim chose to file the report instead of saving themselves. Blammo!

  • We will make calling SCOTUS case outcomes into a game where we give out prizes. Or maybe A prize. A SCOTUS fantasy league of sorts.
  • You Must Remember This podcast.
  • Doughboys podcast.
  • Walker vs Sons of Confederate Veterans is about whether Texas has to allow folks to put the confederate flag on vehicle license plates. Pdf of opinion.
  • Government speech is treated very differently from private speech, which, unless it fits into an exception, is constitutionally protected.
  • Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.Benjamin Franklin
  • Nazim is selected for additional screening by the TSA 97% of the time. For good cause.
  • CMNCNTS is a license plate. Add vowels whereever you might, but neither of us saw this as saying common cents.
  • Brumfield vs. Cain is a case about the rights of mentally disabled criminals and has a great dissent by Justice Thomas, which begins on page 22 of this pdf.
  • We’re probably going to do more updates in the following weeks.
The star of this show: Justice Clarence Thomas. Source: Wikipedia (linked).

The star of this show: Justice Clarence Thomas. Source: Wikipedia (linked).

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