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Old 01-14-2020, 06:12 AM
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a trial without witnesses


There seems to be a lot of discussion on whether to allow witnesses at Trump's upcoming impeachment trial. I don't know what that means. What sort of fair trial doesn't have witnesses? If there are no witnesses, how is any sort of evidence going to be seen or heard? How would such a trial work?

Maybe the question is not about "witnesses", but only about whether to allow new witnesses. That would answer some of the above questions, since evidence will be brought, but it still sounds unfair. As long as the defense is properly informed of the prosecution's plans, what rules would prohibit an entire class of witnesses?

Surely this is something that courts have dealt with for millenia: Sometimes new evidence comes to light during the trial; why should it be disallowed? To my knowledge, the only evidence that would be disallowed because of timing would be evidence that is uncovered after the verdict -- and even that is disallowed only where there's a "no double jeopardy" rule.

PLEASE let's remember that this is General Questions. No opinions allowed about which witnesses and evidence would be good for Trump or bad for Trump. I'm only asking about the procedures of how an impeachment works.
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Old 01-14-2020, 06:20 AM
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An impeachment trial isn't criminal process. There is no standard of evidence beyond what the Congress decides.

But even in a criminal trial witnesses are not an absolute requirement. If the evidence speaks for itself (say, high-res, broad-daylight surveillance footage of the defendant beating up a nun) you may not really require any testimony to make your case.
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Old 01-14-2020, 06:29 AM
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Quote:
Originally Posted by friedo View Post
But even in a criminal trial witnesses are not an absolute requirement. If the evidence speaks for itself (say, high-res, broad-daylight surveillance footage of the defendant beating up a nun) you may not really require any testimony to make your case.
Even for self-explanatory exhibits, doesn't the prosecution call a human witness to attest to, and explain, the exhibit?
(Disclaimer: IANAL, but I've watched lawyer shows on TV. )
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Old 01-14-2020, 10:14 AM
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I think it is fair to say that the senators are acting more like judges than jurors. They make the rules and can do what they like. This is not a criminal trial. But of course a criminal trial could follow if he were actually removed from office. Or if he loses the election.
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Old 01-14-2020, 11:33 AM
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As it has been said, this is not a criminal trial. But that is the trope under which the House is presenting it to the public. Think of this as more like a review at your job in which HR is deciding whether you should be fired or not.

Typically in an impeachment proceeding, all of the evidence is gathered by the House and presented to the Senate for their agreement. If they do not agree there is no firing.

The Senate is saying, it's not our job to go gather the evidence, that was your (the House) job in coming to an impeachment conclusion.
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Old 01-14-2020, 07:45 PM
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The answer to this and all similar questions is that this is not a civil trial, not a criminal trial, and WRT the previous poster, not necessarily an HR review. It can take on any form that the United States Senate believes it should take on in order for it to determine the outcome.

We can each have an opinion as to what form the trial should take, having in our own minds what is fair to each side, but there is no requirement that "because it happens this way in the trials I have seen, it therefore must happen that way here"
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Old 01-14-2020, 11:35 PM
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USC, Art.I Sec.3 Para.6: The Senate, under oath, tries all impeachments. The Chief Justice presides over a presidential trial. Conviction needs a 2/3 vote. And that's it. "Try" and "preside" are not defined. The Senate majority sets the rules - the rest is a political game. If a simple majority of senators don't want witnesses, they win. If a simple majority want to dismiss charges, they win. Whatever a simple majority wants, they win. The only exception is the verdict, where even a 66% supermajority loses.

Witnesses? WITNESSES?!? We don't need no stinking WITNESSES!!
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Old 01-15-2020, 12:41 AM
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Making as much of the next years news cycles feature bad stuff about Trump is the entire reason for passing a bill of impeachment to a majority party in the senate that will, under no circumstances whatsoever vote to remove him from office. Nothing about this circus will be "Judicial" except possibly the presiding authority. That's a long shot too.
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Old 01-15-2020, 01:19 AM
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Around here, appeals are normally heard without witnesses.

Since Trump has already been judged by the lower court (congress), we might think of the senate as a court of review.

Actually, I don't think it's anything like a "court" of review. I think it is, by design, a political process. But I don't have an entirely American view of the holiness of courts.

Last edited by Melbourne; 01-15-2020 at 01:21 AM.
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Old 01-15-2020, 02:44 AM
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There is confusion and misinformation in this thread. At least RioRico paraphrased the relevant clause from the Constitution. But why not just quote its entirety verbatim?

Quote:
Originally Posted by U.S. Constitution, Article I, Section 3

6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
"Try." "On oath." "Convicted." The comparison to a criminal trial is unmistakable. I do understand that it is not a criminal trial (the immediately following Paragraph 7 makes that clear) and I do understand that Moscow Mitch has the power to turn the whole event into a charade of telling dirty jokes and eating popcorn. But the intent of the Founders is clear.

Quote:
Originally Posted by Melbourne View Post
Around here, appeals are normally heard without witnesses.

Since Trump has already been judged by the lower court (congress), we might think of the senate as a court of review.
We might "think" of it as a court of review. We might "think" of it as a visit to the zoo. What's more relevant is what legal scholars or especially the Founders might think of it. Or ... let's just read the Articles of Impeachment:
Quote:
Originally Posted by House of Representatives

President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
"Warrants impeachment and trial" is not synonymous with "has been tried and convicted." The Senate is deciding whether to convict or not. There is no "appeal."

And anyway, if there'd been a criminal trial and key eye-witnesses didn't feel like testifying, wouldn't the trial judge have compelled their appearance, if only to recite a refusal to testify?

But the above is all just septimus nit-picking. The following post has it completely wrong.

Quote:
Originally Posted by Triskadecamus View Post
Making as much of the next years news cycles feature bad stuff about Trump is the entire reason for passing a bill of impeachment to a majority party in the senate that will, under no circumstances whatsoever vote to remove him from office....
Democrats in the House are not a single-minded hive; and if I pretended to describe how all of them feel I'd be just as wrong as Triskadecamus.

However several top Democrats are on record as taking the stance completely opposite to Triskadecamus' claim. Their position makes sense, is much the same as mine, and I believe it is sincere.

Democrats know that it is Donald Trump who will benefit politically from the impeachment! In the past, detractors of Trump could go on camera and denounce his criminality. In future that won't work. ("He's been acquitted! Don't you liberals even watch TV?") Millions of Americans will happily think "Well, that settles that. Those D's sure are vindictive assholes, aren't they?"

The Democrats impeached Trump not to gain political advantage, but despite that it would inflict a terrible political cost. They finally felt that the criminal misconduct was too severe to ignore. If they failed to impeach, it they would be in misconduct, like a D.A. who lets a murderer walk free.
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Old 01-15-2020, 01:15 PM
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Quote:
Originally Posted by Keeve View Post
Surely this is something that courts have dealt with for millenia: Sometimes new evidence comes to light during the trial; why should it be disallowed?
Generally, new evidence that comes to light during a trial means one side or the other hasn't complied with the discovery process, or that a witness has changed their story. In the former case, the evidence will typically be excluded because it hasn't been disclosed, and in the latter the witness will usually be impeached using the previous deposition.
Quote:
Originally Posted by septimus View Post
Even for self-explanatory exhibits, doesn't the prosecution call a human witness to attest to, and explain, the exhibit?
(Disclaimer: IANAL, but I've watched lawyer shows on TV. )
Exhibits are never self-explanatory. If you show the jury a security video of a bank robbery, you need someone to testify where the video was taken. Otherwise, you're just showing a video with no context. The jury isn't going to know if it is the robbery the suspect is accused of or an episode of COPS.

But even self-explanatory documentary evidence, such as a will, normally needs to be authenticated. That means you have to call a witness to testify that it's real, and that it is a business record (or whatever exception to the hearsay rule applies).
Quote:
Originally Posted by Melbourne View Post
Around here, appeals are normally heard without witnesses.

Since Trump has already been judged by the lower court (congress), we might think of the senate as a court of review.
Appeals are heard without witnesses in all common law jurisdictions. The purpose of the appeal is to address errors of law, not to reweigh the evidence, so there is no need for testimony.

But in any case, Trump hasn't been judged. The articles of impeachment, which are adopted by the House of Representatives ("Congress" means both the house and senate) are equivalent to an indictment or charging document, not a judgment.
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Old 01-15-2020, 01:22 PM
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Quote:
Originally Posted by Melbourne View Post
Since Trump has already been judged by the lower court (congress), we might think of the senate as a court of review.
Impeachment is indictment, a statement of charges, not a judgement. Investigate first, then charge, then try. That's the process. But since "try" isn't defined, M.Mitch can stage an anti-kangaroo court where a guilty verdict is impossible despite any actual evidence of Tramps bribery, treason, and high crimes (abuse of power). Lock him up!

Last edited by RioRico; 01-15-2020 at 01:26 PM. Reason: political attack deleted
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Old 01-15-2020, 01:25 PM
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Quote:
Originally Posted by Melbourne View Post
Around here, appeals are normally heard without witnesses.

Since Trump has already been judged by the lower court (congress), we might think of the senate as a court of review.
This isn't the proper analogy. (And you mean the House of Representatives, not the Congress as a whole.)

The impeachment resolution passed by the House is analogous to an indictment from a grand jury, and the Senate's job is to try the charges in that indictment and render a verdict.

But, as has been pointed out, the charges and trial are political processes and really have nothing to do with what one would expect to happen in a court of law.
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Old 01-15-2020, 04:21 PM
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[Moderating]

RioRico, I'm going to be lenient here because you at least tried to remove your political potshots. But you didn't finish the job. And I won't be so lenient the next time.

If you know that you can't resist politicking, then it might be wise to stay out of GQ threads relevant to politics.


septimus, you've got a lot of good information there. But the reasons why the House chose to impeach Trump are not relevant to this thread.

Last edited by Chronos; 01-15-2020 at 04:24 PM.
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Old 01-15-2020, 08:40 PM
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Quote:
Originally Posted by Chronos View Post
[Moderating]

RioRico, I'm going to be lenient here because you at least tried to remove your political potshots. But you didn't finish the job. And I won't be so lenient the next time.

If you know that you can't resist politicking, then it might be wise to stay out of GQ threads relevant to politics.


septimus, you've got a lot of good information there. But the reasons why the House chose to impeach Trump are not relevant to this thread.
Wondering if septimus can refer to Senate Majority Leader Mitch McConnell as "Moscow Mitch" in GQ?
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