MSNBC Breaking: Suspected terrorists can be convicted on hearsay/coerced testimony

Per Pentagon statement.

No link yet. Just broke on TV.

on edit:
Media link (not MSNBC link yet..found this on Google News. Very short news item.)
http://www.chron.com/disp/story.mpl/ap/politics/4480159.html

Jan. 18, 2007, 12:23PM
Pentagon prepares for detainee trials


By ANNE FLAHERTY Associated Press Writer
© 2007 The Associated Press

WASHINGTON — The Pentagon has drafted a manual for upcoming detainee trials that would allow suspected terrorists to be imprisoned or put to death using hearsay evidence and coerced testimony.

<snip>
The manual, sent to Capitol Hill on Thursday and scheduled to be released later by the Pentagon, is intended to track a law passed last fall by Congress restoring President Bush's plans to have special military commissions try terror-war prisoners. Those commissions had been struck down earlier in the year by the Supreme Court.

Tell that to any judge or trial lawyer. What happened to Rule of Law? (Nevermind, I don't need an answer for that...)

However it has to be reliable hearsay.

For example - Man1 wants Man2 dead. Man1 tells man3 that he is going to kill man2 with an ax. One week later Man2 is found dead with an ax in the head.

Man3 is put on the stand at Man1's trial. He is going to testify about the conversation. Objection - Hearsay.

Hearsay is an out of court statement offered for the proof of the matter asserted. Man1's statement of intent is classic hearsay.

So is it unfair to allow the statement?

Of course not. It goes to intent. It would come into evidence in any just court.

So the mere claim that "hearsay" is going to be used tells us nothing about the actual rules. These tribunals have to write their own rules. Many of these rules are quite ordinary.

We have to look at the rules themselves to make an intelligent judgment about whether they are just.

Bullshit. There are rules place that have stood the test of time for centuries. Use those rules and let the Pentagon shove this kangaroo court shit up its collective ass.

But until we see the rules how can we know? Is the writer a lawyer? Does the writer know about the use of hearsay in courts?

I would submit to you that there are rules of evidence that have "stood the test of time for centuries" that would be abhorrent to use - ie tortured confessions were used for centuries. See the Bible, see the Inquisition, etc.

Hearsay would be if victim, #2 told #4 what he suspected, then #4 told #5 who was then put on the stand as a witness, not #3, he is a direct witness of #1's statement. It would go towards forming intent and motive, but not be held in great weight, as there would be no collaborating evidence, simply one person's word against another's.

It is contrary to every rule of Anglo-American jurisprudence.

These will be felony cases, and therefore, the burden will not be reasonable doubt or preponderance of the evidence, but beyond a shadow of a doubt.

Quite frankly, without direct eyewitnesses, there will be shadows of a doubt for every one of these cases, baring eyewitnesses, which I think will be few and far in between or else torn apart by the defense.

We still don't know of what they are being charged other than being Muslim and wearing beards and having AK-47s, which makes about 50% of the adult male Afghan population guilty by BushCo standards.

I cannot see many in the West going along with this Star Chamber.

If #1 tells #2 that he is going to kill #3, and #2 testifies in #1's trial about the conversation, than technically #2's testimony is an "out of court statement used to prove the truth of the matter asserted" and , therefore, inadmissible hearsay. But under the rules of evidence it comes in at trial. It is legally "non-hearsay" because it is a statement of a party. It also comes in separately as an exception to the hearsay rule for purposes of proving motive. Under either circumstance it is merely evidence to be weighed by the trier of fact.

You are incorrect when you assert that the standard of proof is "beyond a shadow of a doubt." The proper standard of proof in a criminal proceeding is "beyond a reasonable doubt." So, long story short, #2's testimony comes in and will be weighed along with other evidence. If the trier of fact (either a judge or a jury) finds that #2 is not credible, than his (or her) testimony is discounted, and if it is the only "proof" of #3's guilt, than 3 is found "not guilty" because the prosecution failed to meet it's burder to prove their case "beyond a reasonable doubt." There are many exceptions to the hearsay rule (and these exceptions take up the bulk of a semester's worth of "Evidence" in law school). Some commentators posit that because of all the exceptions there really is no such thing as hearsay. (I'm not in that camp).

"(c) Hearsay.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."


Now, in my state, prior statements, etc. are considered hearsay but are exception. This is the way the Federal Rules are written currently and they have evolved over time.


Federal Rules also offer allowable hearsay:

"Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation."



Sorry about the long post. The gist of this is hearsay is a technical term. It is often misconstrued. Including by certain posters to this messageboard.

WHY CREATE NEW BULLSHIT RULES WHEN THE LAW HAS CREATED RULES THAT HAVE STOOD THE TEST OF CENTURIES?

For example, the Federal Rules of Evidence were initially adopted in 1973. They spring from older jurisprudence but they are constantly adjusted for changing times.

And, again, for centuries evidence gained via torture has been admissible in trials for centuries. We do not want to keep that one.

All I am saying is that hearsay evidence, per se, may be both reliable and generally admissible. As is proven in the replies to my initial post, people - including reporters - misunderstand what is hearsay. It is a technical term with many exceptions.

(BTW, your caps lock key seems to be a bit sticky, my friend.)

And the rules contained in the promulgation are really old -- necessarily. They didn't spring up in some Neocon's attempt to justify the torture of brown Muslims, and there is a reason for that. For centuries, autocrats have sought to do what the NeoconNazis are doing now, and the rules have stood the test of time.

We keep coming back to hearsay, which is based on centuries old jurisprudence, the changes made in the past century have been minor, at best. To change these rules now to satisfy a Totalitarian Neocon regime defeats the whole purpose for having laws.

That is direct testimony. Hearsay is if a guy in a bar overheard the man #3 mention he had been told that so and so was planning on killing someone.

Hearsay is an out of court statement used for the proof of the matter asserted. This is described many different ways in different legal forums.

Federal Rule of Evidence 802 reads, in part,
'"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

My example Man3 testifies to a statement (by Man1) while Man3 is testifying offered by the prosecution to prove the truth of the matter asserted - that man1 intended to kill Man2.

Hearsay is a complex concept that can trip up even experienced trial lawyers and judges. Again, under the Federal Rules of Evidence many kinds of hearsay is allowed. Until we see the actual rules of these tribunals then we do not know if they are just on the pedantic hearsay point alone.

Conviction takes a little more than just hearsay.

Conviction based on hearsay fits perfectly with arrest and imprisonment for an indefinate amount of time without concrete accusation, without right to a lawyer etc, for being suspected of some kind of unspecified involvement with terrorism - as Bush has been doing for the past couple of years.

Held as a "material witness" for a year and then, two days before a judge was to hear his case, * labeled him an "enemy combatant" and transferred him to a navy brig where is sat and rotted for 3 years. An AMERICAN CITIZEN was held, without charges or reason, because the government said it could. In 2006, in the midst of a Habeas Corpus battle, the * administration ordered him transferred to Miami to stand trial for a host of reasons and for all intent and purpose receded his "enemy combatant" status. In short, the "Justice" department and the * administration tossed this guy around and treated him any way they wanted and in the end dropped ALL of the original reasons why they held him in the first place. Granted Padilla may be no saint and may be guilty of some very bad things but he is still an AMERICAN CITIZEN and deserves EVERY RIGHT GUARANTEED to him by the Constitution of the United States of America. No matter what excuse anyone can give me, when we give a president, ANY PRESIDENT, the ability to strip us of our RIGHTS AS AMERICAN CITIZENS, then our freedom is gone and we have lost the one thing we were told could never be taken.

until proven innocent.

and holding them until the "war is over." Unfortunately, with the Eternal War on Terror it is a death sentence without due process.

defendants are assumed guilty until proven innocent.

These guys have essentially been convicted already and are being given no opportunity to prove that they are innocent.

oh wait, they're already doing that.

Glenn Beck, etc.

Who do these people think they are?

What's horrible for me to think about is that this can affect every American. No burden of proof needed. :grr:

:grr:

Or the Salem witch trials.

Once & for all.

Heard it from good sources that can't be revealed due National Security, but yep, they are guilty.

:hi:

and see if she floats!" Or something like that.

n/t

how many quotes from that movie apply to our country these days . Just stunning.

burned, you're innocent.

they wanted to be logically consistant you know.

They want a complete dictatorship with 100% unitary power. I believe they see it as their last option.

the DEMS took back Congress.

I get the feeling their desperate acts will be their own end.

http://www.iht.com/articles/ap/2007/01/18/america/NA-GEN-US-Detainees-Trials.php

Pentagon manual details rules for trials of terrorism suspects

<snip>
The manual, sent to Congress on Thursday and scheduled to be released later by the Pentagon, is intended to track a law passed last fall in which lawmakers restored President George W. Bush's plans to have special military commissions try terror suspects. Those commissions had been struck down earlier in the year by the Supreme Court.

Last September, Congress, then led by Republicans, sent Bush a bill granting wide latitude in interrogation and detention of alleged enemy combatants. The legislation also prohibited abuses such as mutilation and rape but granted the president leeway to decide which other interrogation techniques are permissible.

More at link...
http://www.iht.com/articles/ap/2007/01/18/america/NA-GEN-US-Detainees-Trials.php

i can't see that surviving a court challenge.

and there is nothing anyone can do about it

I thought this was old news - didn't this leak before Thanksgiving?

a consummation devoutly to be wished?

Bush and his base have erased America from their memory.

David Edwards and Ron Brynaert
Published: Thursday January 18, 2007

According to a breaking report on MSNBC, a new Pentagon detainee manual could allow executions based on "hearsay evidence."

"We have learned that the pentagon has just completed a manual for the coming detainee trials that would allow suspected terrorist to be imprisoned or executed using hearsay evidence or coerced testimony," said Nora O'Donnell, the chief Washington correspondent for NBC News' 24-hour cable news network. "In other words, could be put to death on hearsay evidence..."

"According to a copy of the manual obtained by The Associated Press, a terror suspect's defense lawyer cannot reveal classified evidence in the person's defense until the government has a chance to review it," Anne Flaherty writes for the Associated Press.

http://www.rawstory.com/news/2007/MSNBC_New_Pentagon_detainee_manual_could_0118.html

http://hosted.ap.org/dynamic/stories/D/DETAINEES_TRIALS?SITE=NYBUE&SECTION=HOME&TEMPLATE=DEFAULT

You can not hide your defense evidence, but we can hide our prosecution evidence,
so too bad. I'm the dictat..., oh wait, I mean Decider.

A WITCH HUNT.

it wasn't just torture it made legal

This crap gives them a bad name.

Not fair.

Let's burn the Bill of Rights

How can the American people just stand by as the Bush Administration tramples the Constitution. Habeus Corpus is the basis of American law and Alberto Gonzales wants to get rid of it? When Habeus Corpus is abolished, there will be nothing of the legal system left. Now the Pentagon is saying that hearsay and coerced testimony is admissable in court. BULLSHIT! The Judicial and Legislative branches had better work swiftly and decisively to reverse the right-wing's all out assault on the Constitution, or the Great American Experiment will be over.

"Those who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin

All the questionable bills that the GOP (Greedy One Percent?) rammed through congress the past 6 years are now coming home to bite the Dems. in the a$$, that voted for them.

We begged them not to vote for them, yet they voted based on $$$'s for their district or for some other reason.

The bills that got voted on in the House and Senate then go into committee to hammer out the differences before going to the president for signature.

The GOP majority wouldn't invited the Dems to the committee meeting because "...we don't care what you think, we're going to pass the law we want anyway. So why invite you? ..."

Then while in committee, the GOP would add provisions to the bill, without telling the Dems, and then not allowing any debate on the bill before final passage.

Perfect example is Senator Arlen Spector (R-Obviously), slipping into the Patriot Act, that the Justice Department can fire any federal lawyer and the President can replace the federal lawyer without senate approval. This beauty just popped up yesterday.

How many other secret provisions are there in the Patriot Act, Bankruptcy Bill, Telecommunications Bill, Medi-Care overhaul bill, Energy Bill, ... ?

The list goes on, and I'm sure the secret provisions as well.

:(

With evidence such as this being admitted they're being reduced to little more than a ceremony anyway.

Perhaps it's because the pentagon is admitting it in the open now?

"Oh the humanities."

We know torture is a notoriously unrelibale means of gaining credible info. For example, take Mr. Arar, the Canadian who was sent to Syria to be tortured. IIRC, while being tortured, he said he had gone to Afghanistan to train with al-Qaida. That later was proven to be untrue - he had just said what he thought they wanted to hear so they would stop torturing him.

This new directive has chilling ramifications. This has got to be challenged immediately. God help us if this is allowed to stand.

or everyone who visits a "subversive" web site/mosque/church/cafe, or who reads "subversive" books...

This destruction of the Bill of Rights needs to stop, and stop now.

the MCA from law before the end of the one hundred hours. This whole farce needs to be undone, it was a capitulation to the executive by Republicans in the first place. Place detainees in detention centers in the USA, accord them the same protections given to domestic prisoners, and try them on terrorist offences (if needed) under US laws and in front of US juries. Grand juries need to deliver indictments or release those whose cases do not satisfy requirements. It's not like cases have never involved classified information before, people have been executed for spying charges before that involved national security.

What??? WTF? Isn't here say usually not admissible? Now, we can have executions based on it?

Again...WTF?

Now, we will have "terrorists" testifying against "terrorists" on whatever they heard, or whatever they think they heard, or whatever they have been convinced they heard to save themselves?

My heart weeps.

They are inching one step at a time to be able to lock up any of us at any time without having a reason. Nancy Pelosi, Harry Reid, and the rest of the Dems better stop this shit NOW !

To cover bush's ass, again. How many times have we had a terra alert - breaking news - and been told, "We can't tell you how we learned about this plot, because to do so would reveal our SOURCES AND METHODS.

Like torture? That kind of method? Bush has destroyed America, and he couldn't have done it without a lot of help, including the fine, upstanding, super-patriotic GOPer 109th and the Rush-Fox 24-Hour brigades.

I feel so much safer knowing that a man can be executed based on a "confession" resulting from torture. Our very own gulag makes a nice matching set with our Pravda and KGB.

Hearsay fails that test.