The Military Commissions Act of 2006: An Analysis of the Treatment of Hearsay Evidence and Witness Confrontation

By Kurland, Abigail S. | International Journal of Punishment and Sentencing, July 2007 | Go to article overview

The Military Commissions Act of 2006: An Analysis of the Treatment of Hearsay Evidence and Witness Confrontation


Kurland, Abigail S., International Journal of Punishment and Sentencing


We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice. (1)

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Imagine that you are on trial for a crime for which the punishment is death. The government's case in chief rests on the testimony of a military interrogator who questioned a fellow detainee. This interrogated individual implicated you in a terrorist plot. However, the detainee is not testifying at your trial; rather, your defense lawyer can only cross examine the interrogator who is recounting her questioning of the witness. Imagine further that this detainee implicated you in the terrorist plot only after having been queried for days on end and after having been exposed to extreme temperatures. Based in large part upon this interrogator's relaying of the detainee's statement, you are convicted and sentenced to death.

It is hard to imagine that a defendant in a United States criminal proceeding would be convicted and punished based on hearsay evidence obtained through coercive techniques. The recently enacted Military Commissions Act of 2006 ("MCA"), however, permits the admission of testimonial hearsay evidence that may be acquired in this very manner. With the international community's critical eye scrutinizing how the United States treats accused terror suspects, now more than ever it is crucial that detainees are afforded procedural rights that comport with international human rights standards. The MCA does not meet these universally recognized minimum standards.

Civil law systems and international criminal tribunals approach hearsay evidence more openly than the United States common law criminal system. Indeed, the Nuremberg trials and the Yugoslavian and Rwandan tribunals permitted the admission of certain types of hearsay evidence. Proponents of the MCA point to these international sources in support of the MCA's relaxed hearsay standards. The significant differences between the MCA's and international law's treatment of hearsay evidence renders this a flawed analogy. Specifically, international law affords the accused greater procedural protections, including the right to confront witnesses and the ban on evidence obtained by methods that contravene international human rights standards.

This article will scrutinize the MCA, concluding that it violates international law and erodes the United States' moral ground with respect to the treatment of foreign criminal defendants. Part I examines the Federal Rules of Evidence ("FRE"), paying particular attention to the prohibition on testimonial hearsay. This section will also examine the United States Code of Military Justice's evidentiary rules. Part II explores the treatment of hearsay in the inquisitorial system and by international criminal tribunals. Finally, Part III compares the MCA to domestic and international criminal procedure, arguing that it falls far short of the minimum nationally and internationally recognized legal standards. Indeed, the MCA fails Justice Jackson's challenge to fulfill "humanity's aspiration to do justice."

PART I: HEARSAY AND THE CONFRONTATION CLAUSE IN DOMESTIC LAW

Rooted in English common law, the United States generally forbids the introduction of hearsay evidence. (2) In addition, the Sixth Amendment's Confrontation Clause guarantees the right of an accused to confront witnesses. The Confrontation Clause, in combination with the prohibition on hearsay, is one of the fundamental protections embodied in the Constitution and in the United States criminal justice system. This section will briefly examine the FRE's prohibition on hearsay and the Supreme Court's jurisprudence with respect to the intersection of hearsay and the Confrontation Clause. …

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