November 18, 2007

CLS Time in the Times

by PG

Still waiting for Megan McArdle's return from Cambodia, I point those who share her certainty that public school supporters wouldn't possibly send their own children to distressed urban school systems to this article on James Liebman. He used to be my criminal law professor, but he now works for Chancellor Joel Klein as chief accountability officer for the New York City public school system. Even NYC has some public schools good enough that the affluent liberals McArdle rails against will send their children to them, as Liebman's kids attend schools that earned an A and a B on his report card. Students whose schools under-perform have the option to enroll at better schools, including at the public charters.

My current professors in the NYTimes: Perhaps envious of Gordon's prescient piece on A-Rod's signaling, Coffee has an analysis of the Barry Bonds prosecution in today's paper. I admit to some confusion regarding a sentence in the first paragraph: "Unless the government has an undisclosed eyewitness who saw Bonds receive injections or heard him admit to steroid use, this trial stacks up as a classic credibility contest."

Wouldn't testimony from someone who heard Bonds admit to steroid use be considered hearsay? I'm running the hearsay exceptions song (contrary to the YouTube description, created by E-Spat's classmate) in my head and can't think of one that fits the situation. I suppose there is the hearsay exemption for admission by a party-opponent, though that would seem to force Bonds into testifying so he can say the government's witness is a liar. On the other hand, Coffee notes that waiving his 5th Amendment right would be very unwise. (The prior statement by a witness exemption doesn't work because the statement to which the government's witness would testify wouldn't have been made under oath.)

November 18, 2007 07:09 PM | TrackBack

Wouldn't it be a statement against penal interest?

Moreover, I think it is an admission of a party opponent, and thus it isn't hearsay. Remember the chauffeur in the Phil Spector trial, testifying that Spector told him that he had just killed someone.

It does put pressure on the defendant, but that's true of any evidence the Government puts on. A statement by an eyewitness that he saw Bonds take steoids would create just the same sort of pressure. And in both cases, there may be other ways of discrediting the witness without Bonds testifying; there may be evidence that the witness was in another city the day he claimed to have seen or heard Bonds, for instance.

Also, think of it this way: if a confession was per se inadmissible hearsay, there would be no need for the Miranda rule.

(An earlier response of mine seems to have been eaten; apologies if this is duplicative.)

Posted by: Tom T. at November 19, 2007 03:50 PM

Well, as an admission of party opponent, it doesn't need to get into qualifying for the Rule 804(b)(3) exception for statements against penal interest.

Posted by: PG at November 19, 2007 10:39 PM
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