With its editorial of this morning, Justice After Guantanamo, the Los Angeles Times has raised the bar when it comes to expressing exquisite sensitivity for the rights of accused terrorists. The Times waxes indignant that in trials of Gitmo denizens the Bush administration favors - brace yourself - the admission of hearsay evidence. Send in the smelling salts.
Says the Times:
"New draft legislation to bring the military commissions established by the administration into compliance with a Supreme Court decision borrows heavily from the Uniform Code of Military Justice. That's the good news. The bad news is that on some issues — particularly the use of hearsay and evidence obtained by coercive or inhumane interrogation — the administration still clings to the notion that the end justifies the means."
Let me hark back to my law school days to share with readers a brief explanation of the hearsay rule. For a more detailed discussion, click here. Under general rules of evidence in the United States, hearsay evidence is excluded - it is inadmissible. Simply put, a witness cannot testify as to what he heard another party say.
What would be the effect of waiving the hearsay rule? Well, a witness could then of course testify as to what he heard another party say. Would that mean that such testimony would be uncritically accepted as fact? Of course not! Defense attorneys could, and surely would, cross-examine such witnesses, and have every opportunity to undermine the probative value their testimony by questioning the witness's motives, credibility, accuracy, etc. Waiving the exclusionary rule would simply mean that a witness could testify. The jury - or judge serving as jury - would still retain the ultimate right to decide what - if any - value to attach to the testimony.
But when it comes to protecting the rights of accused terrorists, even this limited derogation from standard procedure is enough to disturb the delicate sensibilities of the LA Times.