The New York Times has an entertaining story today describing how a precedent is born. In this case, other courts seized on attractive legal reasoning even though the entire opinion turned out to be based on facts that had not taken the trouble to exist. See Legal Precedent Doesn't Let Facts Stand in the Way for the details.
I suppose it helps to be a lawyer to understand why this isn't nearly as weird as it sounds. Judging from the article, the original opinion was one that guided the parties — evidence is admissible if the following conditions exist. Yes, the judge wrote the opinion thinking those conditions existed…but when they turned out not to exist, the opinion was still valid as it explained why the evidence was not admissible after all. So it wasn't dicta. And if in fact other courts found the reasoning persuasive, so much the better for them. (Whether in fact the opinion is correct is, however, a whole different question….)
I suppose it does indeed help to be trained in legal thinking to see this sort of thing as normal. 😉
This sort of thing does happen a lot, but it’s useful to note as well that judges often are motivated by certain facts when deciding the law. They might decide things differently, rightly or wrongly, if the facts were different. The facts are sort of a thumb on the scales, so to speak, especially when using certain “tests” that are a bit arbitrary. For the specific litigants, this arguably might lead to some unjust results in specific circumstances.
Also, the specific facts sort of underlines the value of actual testimony, given the tape in fact was the of the person it was assumed to be.
Still, especially given the ultimate results of the case, things appeared to work out “well” in this case, and overall it was an interesting article.
Really thought provoking post
mmm … “the tape in fact was not of the person it was assumed to be” … I see that I misstyped an essential word there
I must be missing something. To me, this case goes to the very heart of why we have a Sixth Amendment in the first place. Unsworn testimony without the opportunity for cross-examination and the basis for admitting it is that the prosecutor assured the judge it was real?! It wasn’t just the facts that were in error in this case, it was the decision itself. The reason prosecutors and judges jumped on the bandwagon of this “precedent” so quickly is that they needed another way to get around the Sixth Amendment once the Supreme Court shut the door on previous practices. But claiming that this is good law means claiming that this rule ensures that evidence is accurate, and it self-evidently doesn’t!
I’m about as far from a Scalia fan as it’s possible to be, but I think he said it perfectly in Crawford v. Washington, “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”
Interesting post about precedent without facts.
On a similar note, Sullivan v. O’Connor is a fixture in many first year Contracts casebooks. It’s the case where a doctor promises a young lady a “Heddy Lamar” nose. After three surgeries, she ends up with something somewhat less pleasing. She is awarded “reliance” rather than expectation damages — in this case, the third surgery, since she’d signed up for two . . .
Richard Danzig in his book The Capability Problem in Contracts Law does a little digging and concludes that the third surgery, the one for which damages were awarded in the appellate decision, never actually happened. . . .
This has not lessened the impact of the decision.