Category Archives: htt9

htt9 socratic

seed from dakotah, kayleigh, mike, fern

-Classmates. Fooled around 2 times previously and had done everything but sex. Meet after class one day, girl suggests they watch TV at the guy’s room. They go back to the room to watch House of Cards.  He starts to make sexual moves, which they have done before. They came close to having sex before in terms of nakedness and intimacies but she had remained a virgin. Once it becomes clear he was intent on intercourse, she says “I thought we were here to watch a movie.”  Shortly thereafter, he penetrated her..



He thought she was being flirtatious and persisted.  The communication was vague. Based on prior experience, he thought this was permissible. Times previously she said don’t take off my shirt, but then she herself took off the shirt.


She tried to communicate that she was uncomfortable and this was unwelcome. I said it in stern way, and my body language indicated my nonconsent.


-alcohol: both had been drinking.  3 or 4 beers.  She supplied the alcohol.

-intercourse on previous occasions: relationship scenario.

-reports right away, reports next morning, or reports after speaking with women’s vengeance brigade

-power dynamic: change who the people are. Guy is a TA or grad student, and she is an undergraduate.


-loose girl or an athlete scenario

-when does she leave after the interaction?

-girl who has an ulterior motive for alleging rape. She found he slept with her roommate.

-she said yes but then changed her mind.

-she says no, clearly. She had said no previously but in a playful way. This time she says no in a firm way.


let’s set this up as a socratic seminar.

cbs nesson socratic 1982

pick one story and follow it procedurally from the time the complaint comes to the dean.

the dean [mckensie], in private, speaks to the girl.[kaylee], who voices her complaint.

a complaint comes in: the title 9 alarm bell rings; the carefully worked out legal procedure that the dean must follow at risk of losing all our university’s federal funding clicks in:

Should she immediately identify the potential defendant and isolate him from contact with the complainant? For the guy, an extraordinary constraint on freedom triggered by a complaint.

within the legal institutional world complaint warranting restriction of freedom initiates with stop and frisk, which offers the dean a model. reasonable suspicion is the standard for stop and frisk. does the dean have reasonable suspicion that the defendant is guilty of sexual assault on campus to warrant a minimal intrusion on the defendant’s freedom? yes.

what does the dean do? does she empathize? does she offer to mediate?

the dean speaks in private to the guy [mike],

[let’s hear the mediation conversation driven in a way that does not resolve the complaint yet explores possible avenues of resolution to pinpoint failure points.

then the dean says, now what do i do? where does the story go from there? who does she call?

[mckensie. be the dean, who do you call?]

[compared to the settlement choice, let’s hear what the litigation route will entail. who can tell us that?

[then come back, is there any positive thing that could be done to satisfy the complaint alternative to litigation: [ e.g., a deliberation program encompassing the culture. that being the change that kaylee is really fighting for.

welcome to the rawlsian room, in which we decide what is fair without knowing whether ours is the male or the female position, leave aside for the moment gradations of self consciousness in between.





Overrule Crawford – Response to Professor Friedman


Ohio v. Clark presents an opportunity for the Supreme Court to survey the confusion its confrontation doctrine has generated, and to set confrontation doctrine right.

Confrontation in its archetypal form––where a victim accuses the defendant of a crime in open court before a judge and jury––is the critical threshold at the core of an American criminal trial. Confusion of confrontation with cross-examination has eviscerated that threshold right. What was meant to be a critical constraint upon the state, ensuring that accusations of crime leveled against a citizen are made live in court under oath  before the jury that will judge him, has instead been construed to permit proof by out-of-court accusations . The Supreme Court should restore the historical and constitutional function of the Confrontation Clause as a check on state prosecutorial power.

The Confrontation Clause should be understood as condemnation of convictions in the total absence of live sworn testimonial proof of guilt before the jury.  Instead, Scalia assumes that the purpose of the Confrontation Clause is to exclude  ex parte examinations from evidence. Reading the Confrontation Clause to exclude reports of such examinations requires Scalia to expand the phrase “the witnesses against” to include all declarants of testimonial hearsay statements. .

Scalia, for the Court in Crawford  assumes from the outset that the Confrontation Clause establishes a constitutional evidentiary rule of admissibility. He starts with the assertion: “the principal evil at which the Confrontation Clause was directed was [ DRUM ROLL, here of Raleigh and fundamental right, but no …]
the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.

Scalia sees the constitutional mission as regulation of hearsay:
“Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless … . Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.”

This misconception of purpose leads Scalia to misconceive the Confrontation Clause as a constitutional hearsay rule, and to manhandle its language to accommodate his misconception of it.



(1) ‘Dying Declarations’: the ‘exception’ that proves our rule:

Giles v. California exposed the nonsensical conception of confrontation underlying the Scalia/Friedman testimonial approach. Giles was charged with the murder of his girl friend. He claimed self-defense. As proof to negate the defendant’s claim of self-defense, the prosecutor was allowed to introduce statements that the victim had made three weeks before the fatal shooting to a police officer investigating a domestic violence report.

In an amazing display of illogic, the justices (and you, Richie) simply assumed that the defendant had a right to confront the homicide victim. But, a defendant in a homicide prosecution has no constitutional right to be confronted live in court by the homicide victim. The victim of a homicide can never be a witness against the defendant in the homicide trial because the victim of the homicide is dead, by definition. The crime of homicide is not complete until the victim dies. Failing to recognize this, the justices (and commentators in support) debate whether the defendant could be found to have forfeited his right to confront the victim without having first been convicted of her murder, and get utterly lost in the circularity of the question as they have constructed it. The only legal questions posed by the admission of a homicide victim’s statement are, first, whether it is admissible or excludable under state hearsay law, and second, if admitted in evidence, whether it is alone or with other evidence sufficient to support a conviction, again an issue in the first instance of state law. There is no confrontation issue posed simply by the admission of the statement of a homicide victim in the homicide trial because the Confrontation Clause imposes no duty on the prosecution to produce the victim.

The nonsense of trying to make sense of a constitutional right of a defendant to be confronted by the dead homicide victim continued in Michigan v. Bryant. Had the Confrontation question been properly framed as whether the prosecutor was responsible for producing Bryant’s victim live at trial, the issue would have been solved with no fuss. As in Giles, production at trial of the dead victim is not even a theoretical possibility. Whether the victim’s dying accusation against the defendant should have been admitted is a question of hearsay law, not constitutional law. Likewise, the question of whether the evidence, once admitted, is sufficient to allow the jury to convict, is a question of evidentiary sufficiency under state law. A state could decide that the homicide victim’s hearsay, taken together with the other evidence offered by the prosecution, like the physical evidence from Bryant’s screen porch, could support a jury verdict beyond reasonable doubt. The absence of the hearsay declarant did not create a doubt beyond the jury’s capacity to resolve.

Dying declarations are an exception to the hearsay rule because they are out-of-court statements offered for their truth. They are also an exception to the rule that testimony must be sworn because contemplation of immediately impending death was substitute. They are not an exception to the rule of confrontation because the clause imposes no duty on the state to produce the victim of a homicide to confront the defendant. Dying Declarations are statements of persons who cannot be produced. The Confrontation Clause has nothing to say about them. Think of them not as ‘exception’ to confrontation but rather as ‘exclusion’.

(2) Co-conspirators Statements:
Friedman advances Alex Whiting’s question to us about how our approach handles co-conspirator statements. We respond with the agency theory of conspiracy, according to which a statement made by a co-conspirator during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused. Richie, you dismiss as spouting fictions. But your concern seems not with the theory of agency but rather with ridiculous extensions of it that prosecutorial judges have foisted upon us. He says, “The fictitious quality of a rule … is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.” True, but this is not reason to misconstrue the Confrontation Clause.

(3) Business records: give us a good example.

Roger Park asked: “Suppose that an essential element of a federal crime is movement in interstate commerce. The only evidence on that point is a business
record. What result? ”

We responded: “Roger, the business record in your hypo proves a jurisdictional element, not an element of guilt. Nexus with interstate commerce is a jurisdictional element of the charged federal offense. It establishes the federal government’s authority to prosecute the charged offense. Whether or not prosecution of a charge falls within federal jurisdiction is a legal question, properly addressed to the judge, not to the jury. If the jurisdictional issue is submitted to a jury, there need be no greater constriction on the evidence the jury is permitted to consider than on the judge, which means that hearsay proof is permissible. Proof by business record in your hypo is fine.”

Friedman complains: “The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue. But of course that is not always the case.”

Richie: We challenge you:

• Come up with a single specific case in which our view of confrontation would stop a serious prosecution because of inability to prove a substantive element of a serious crime with a business record.

fern & charlie nesson


feb 26, 2015

for those of you that missed it:

dakotah reviewed where we are with creating a dramatic stimulus to ignite further htt9 deliberation

we read this article together
Hoff, Rape Culture is a ‘Panic Where Paranoia, Censorship, and False Accusations Flourish

fern sends this email to all to put the article in context:

This article may be a useful corrective. Of course, we should not “panic” and we should strive to give both he accuser and the accused a fair trial. But we can’t make the problem of assault go away as easily as the author would like. In particular, I believe she is wrong t cast so much doubt upon the statistical surveys. Her unwonted skepticism is shown pretty clearly in the following paragraph:
” The one-in-five number is derived from surveys where biased samples of respondents are asked an artful combination of straightforward and leading questions, reminiscent of the conclusory interviews behind the daycare agitation. A much-cited CDC study, for example, first tells respondents: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Then it asks: “When you were drunk, high, drugged, or passed out and unable to consent, how many people ever had vaginal sex with you.” (Emphasis mine.) The CDC counted all such sexual encounters as rapes.”

I agree with the CDC. In a situation in which the alleged victim is “drunk, high, drugged or passed out and unable to consent” and the alleged victimizer has vaginal sex with her (or the equivalent for a male victim), it IS rape. Rape, by definition , is penetration in the absence of consent. A victim who is “unable to consent” has been raped.
Let’s be fair but let’s not deny the gravity of the problem.

without arguing its merits we took as possibility that the current feminist prosecutorial front has a feel to it not unlike the front of the wave of unjust prosecutions that characterized the hysteria of the 1990’s over child abuse in day care centers.

we watched together an episode of 60 Minutes from the 90’s articulating for america the injustice done to Bill and Kathy Swan.

Here is the opinion of the United States Court of Appeals for the Ninth Circuit, Swan v. Washington (Peterson) refusing to consider the confrontation issue.

The Supreme Court denied my petition for certiorari, 1994.

we talked about the confrontation clause of our constitution and our constitutional right not to be put at risk of conviction by a jury of our peers without first having been faced with the accusation we are called upon to defend without first being faced by our accuser, sworn before our jury.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

we reviewed Raleigh’s Case summary, who first articulated the fundamental confrontation right.

you listened to the story of ‘confrontation’ as a constitutional right

and of its demise and possible resurrection.

we reviewed the case of Clark v. Ohio, to be argued in the Supreme Court on monday. fern and i have filed an Nesson’s amicus clark v. ohio.

we spoke about a justiciable issue as an essential element of fair trial.

we demonstrated Ellsberg’s Paradox and distinguished uncertainty from risk.

we spoke about rhetorical poker, the importance of getting agreement on a premise as a starting point, which leads me to this rawls from journal august 2011.

we spoke of the extension school class as a bucking bronco.

we watched rebecca speak of teaching with me in second life

francesca and mike to take charge. please fill out the doodle to find common meeting times with others outside of class. we will start our seminar this week promptly at 5pm (maybe). bring charged laptops.

i will tweet about #clarkvohio and tell you all about the argument upon our return.