Wednesday Writs: Say It to My Face Edition

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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29 Responses

  1. Aaron David says:

    L2- As someone who has a pretty serious disabilty, and is not always in favor of the forseen repercussions of the ADA (too often used for a shakedown); you live by the sword, you die by the sword.Report

  2. PD Shaw says:

    L1 – Good piece. IIRC, it must have been right after Roberts that my state amended its rules of evidence to allow police statements to be read into evidence by the prosecution in child/spousal abuse cases, so long as the accused has the right to call and examine the witness during the defense’s case. I’ve always wondered how often that has been used and how well it works. For the prosecution, your allowing the other side to control the most important examination of the key witness. For the defense, the jury might view the usual cross-examination approach particularly unfair, if not preceded by direct examination.Report

  3. Jaybird says:

    L1: In Season 3 of Daredevil, much was made of the FBI Agent’s video in which he opened that he would be dead soon and, as such, this should be considered his dying confession.

    How much of that is crap? Are dying confessions given enough weight to overcome the whole “right to face accuser” thing?Report

    • Em Carpenter in reply to Jaybird says:

      There is a hearsay exception for “dying declaration”, but I’ve only seen it as something a person is saying as they are actively dying, like “Jaybird shot me!” as I bleed out and die. Not a planned ahead recorded statement. Report

      • Em Carpenter in reply to Em Carpenter says:

        I’ll add that the reasoning for it to be an exception from the hearsay rule is that a person in that situation is assumed to have no reason or motivation to be lying. Same rationale for hearsay exceptions that apply to statements given to medical personnel in the course of obtaining treatment.Report

        • That seems to be take a possibly unjustified position on dying people’s goodness. I know some people I would be completely unsurprised to see lie as they were dying if it would screw somebody that they disliked.Report

          • CJColucci in reply to Michael Cain says:

            Lots of people, including the late evidence and trial practice teacher Irving Younger, agree with you. On the traditional understanding of the rule, I can’t see why someone couldn’t challenge the admissibility of a dying declaration from, say, Richard Dawkins, on the ground that he was an atheist who didn’t believe in an afterlife and that, therefore, he lacked the fear of eternal punishment that, supposedly, makes the dying hesitant to lie. Trials would be a lot more entertaining that way.
            Still, we need some rule, and, as is so often the case, it is more important that we have some agreed-upon rule rather than any particular rule. We’ve been doing it this way for a while, it isn’t obviously stupid, and doesn’t seem to have created many problems, so we can live with it.Report

          • George Turner in reply to Michael Cain says:

            The prosecution is free to bring up reasons why the declaration may have been false, and the jury can consider that, too.Report

      • Jaybird in reply to Em Carpenter says:

        Superhero stories lied to me!Report

  4. Michael Cain says:

    L3 – I had the opportunity to watch a large industry have its protected monopoly status stripped from it when it became clear that circumstances had changed enough in 50 years that the monopoly was no longer justified. It was really amazing how many people simply refused to see the obvious changes coming. The NCAA and its members are in the same sort of denial. Almost no one there seems to be asking the question, “What sort of separation of the big-money sports from the academic institutions would we like to see?” Even though such a separation seems inevitable.Report

    • Aaron David in reply to Michael Cain says:

      There are a whole slew of changes coming to the university world, and pretty much all the major players on the university side have gone full ostrich on it. It will be ugly and it will be soon.Report

      • I did my undergraduate time at Nebraska, which has an unusual structure that will probably make the changes somewhat easier. The Athletic Department is a separate legal entity, with all of its own revenues and expenditures. There are contracts in place with the University proper that satisfy the NCAA’s “institutional control” rules. By statute, no money can flow from the University proper to the AD. Nor does the legislature provide any appropriations for the AD. Paying the athletes, for example, would be an AD problem.

        The AD arrangement is very old. It was apparently a period of great distrust. The University of Nebraska has a quite small endowment compared to its peers. The University of Nebraska Foundation, OTOH, is a separate legal entity with a couple of billion dollars to be spent on “creating excellence at the University.” From time to time there is amusing friction between the Board of Regents that run the University and the completely separate board at the Foundation, which has its own ideas about what constitutes excellence. General donations to the Foundations don’t ever go to the AD. The AD does, though, buy advertising and money management services from the Foundation.Report

        • JS in reply to Michael Cain says:

          ” By statute, no money can flow from the University proper to the AD. Nor does the legislature provide any appropriations for the AD. Paying the athletes, for example, would be an AD problem.”

          When I was growing up, my best friend’s father had a very unusual hobby — he was one of a small group that would ‘audit’ local government. They’d use state sunshine laws, requirements for public books, etc and would select some public institution and basically run the numbers. Most of the time they found nothing of note (although, given their very, very small government leanings they found plenty to complain about, just nothing most people would consider a problem).

          The one time they hit pay dirt was the local community college, illegally funneling a massive amount of tuition money to the athletics department. Once caught, they turned to various forms of money laundering despite being under a microscope — not just this guy’s amateur auditors anymore — which went on for a few years until ultimately they were forced to abolish their entire athletics program.

          That was in the late 80s, early 90s. They don’t have an athletic program to this day, despite being one of the larger community colleges in my state.

          What I’m saying is — if a community college would turn to money laundering, cooking books, despite being caught, being under examination, and having had several well paid administrators and athletics heads fired — over what was a good, but still community college, level athletics program…..

          I’m not so certain how well any firewall, no matter how enshrined in law and contract, will actually hold up without an army of auditors and bloodthirsty enforcement. Year after year. For decades.Report

          • DensityDuck in reply to JS says:

            “That was in the late 80s, early 90s. They don’t have an athletic program to this day, despite being one of the larger community colleges in my state.”

            a job well done, you seem to be sayingReport

  5. Pinky says:

    Once again, my tendency to read headlines too quickly causes me trouble, but I’m just glad this wasn’t the “Sit On My Face” edition like I thought it was.Report

  6. PD Shaw says:

    L2: The Illinois politician identified as an early agitator on the one weird ADA/HIPAA trick is not a Republican Congressional candidate (as identified in the link) — he lost his primary in March, and I think he is more accurately described as either a losing or perennial candidate.

    The underlying issue in Illinois is that the Governor has asserted the authority to extend the 30-day limit on his emergency powers by perpetually declaring emergencies every 30 days. The Attorney General’s Office advised local prosecutors that this probably would not withstand judicial review, Memo (pdf) so law enforcement won’t enforce it.

    Masks seem to have become of symbolic importance as the only more stringent requirement originating after the first 30 days. But stores are publishing their own safety rules at store entrances, though it seems like enforcement is lax. Awful situation for businesses. On the one hand, a governor making increasingly eratic and unlawful claims to enforcement of questionable emergency rules, including pulling business licenses. On the other hand, customers coached-up on some questionable interpretations of the ADA threatening to sue or make a scene.

    And the legislature reconvened today, with directions from the leadership to wear masks. A few are not wearing masks, but appear to have one stuck in a pocket. Once they start, each house is expected to vote on the safety rules, and if they pass, vote on motions to censure, and possibly expel those not wearing a mask.Report

    • Slade the Leveller in reply to PD Shaw says:

      Rep. Bailey was escorted from the premises today after he refused to don a mask. Fishing idiot.Report

      • PD Shaw in reply to Slade the Leveller says:

        Perhaps even worse, he didn’t get tested beforehand. As you may know, Bailey brought and won the first court case against the emergency order, then pulled it. His explanation (need to develop more facts) did not make sense to me since he raised almost purely a legal issue. Not having his vote, hurts his political position too. I’ve judged him agent of chaos. Also an asshat.Report

        • Slade the Leveller in reply to PD Shaw says:

          It was revealed that IL’s hero of anti-government overreach, a farmer, has received a fairly substantial amount of government farm subsidy money over the years. Asshat seems a proper designationReport

      • JS in reply to Slade the Leveller says:

        You see them screaming about masks, but nobody ever complains about “No shoes, no shirt, no service”.

        Also, a lot of people really don’t understand what HIPAA is. Judging by some of the videos, I’m definitely afraid HIPAA might enter the various incantations muttered by sovereign citizens.Report

  7. Slade the Leveller says:

    [L5] The link is to the Tiffany Trump story, not the one about the bad legal review.Report