# Attorneys - please put this Scalia quote in context **URL:** \ **Category:** Great Debates\ **Created:** [May 29, 2013, 11:52pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668 "2013-05-29T23:52:23Z")\ **Posts on this page:** 12\ **Page:** 3
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 1, 2013, 2:22am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/41 "2013-06-01T02:22:08Z")
As has already been mentioned, a trial by jury is not a determinant of “guilt or innocence”. It’s a determination of guilt, or a reasonable doubt thereof. > [@](#): > > Nobody said anything about ignoring it. But we aren’t enslaved by it, or by anyone’s preferred understandings of it, either, especially in such cases as when slavishly following it means putting " ‘actually’ innocent" people to death. _We_ aren’t, because we can elect legislators who will enact legislation fixing the issue. SCOTUS is, because it doesn’t have the power to legislate. It can only fill gaps in the law, or interpret it. ---
**Author:** ![Randvek](https://avatars.discourse-cdn.com/v4/letter/r/a6a055/32.png) [@Randvek](https://boards.straightdope.com/u/Randvek)\ **Post date:** [June 1, 2013, 3:03am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/42 "2013-06-01T03:03:29Z")
> [@Human\_Action](#): > > As a textualist, he holds that the law ought to be followed as closely as written as possible, and that when it’s found wanting, it’s the law that should change, rather than the prevailing interpretation of it. That’s a perfectly reasonable view. In this case, the law (the AEDPA) imposed a limit of one year on petitions of habeas corpus asserting new evidence, starting from the day it could have discovered through the exercise of due diligence. Just to nitpick, but Scalia generally believes that the law should be followed as closely as possible _as long as that doesn’t lead to an outcome he doesn’t like._ Compare Raich v. Gonzoles with US v. Lopez. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 2, 2013, 10:34am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/43 "2013-06-02T10:34:49Z")
> [@Really\_Not\_All\_That\_Bright](#): > > _We_ aren’t, because we can elect legislators who will enact legislation fixing the issue. SCOTUS is, because it doesn’t have the power to legislate. It can only fill gaps in the law, or interpret it. There is no such legal requirement for SCOTUS, though. And the only possible way to override a SCOTUS decision is to amend the constitution, and SCOTUS can make a decision overriding that. If all you rely on is the law, then SCOTUS can do whatever the hell they want. It’s only when you introduce a level of ethics that they can’t. And when you do, you get into the pesky situation on whether different people are allowed to have different ethical requirements. I know that, if I were to know someone was innocent, and I didn’t do what I could to exhonorate them, and they were executed because of it, I would be guilty of murder. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [June 2, 2013, 11:06am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/44 "2013-06-02T11:06:17Z")
The phrase “DNA evidence” is often tossed around as though it’s some silver bullet which magically establishes guilt or innocence in a large number of cases. I think this fallacy is one of the points Kimmy\_Gibbler suggests here: > [@Kimmy\_Gibbler](#): > > How wonderful to know that proposed evidence for further testing comes pre-tagged as “Testing of this evidence will conclusively exculpate the defendant” and “Testing of this evidence will fail conclusively to exculpate the defendant.”… > Of course, evidence does not come so tagged in advance… > > A defendant who has been convicted beyond a reasonable doubt after a full and fair trial … However, IIRC there are several cases where DNA testing was refused _in rape-murder cases where the rape was an integral part of the murder allegation_ and where semen was available to identify the rapist conclusively. Also, I wonder what is meant here by “reasonable doubt after a full and fair trial.” Review _Actual Innocence_ by Scheck et al for examples where such a phrase might be applied in a legalese sense, when it does not apply by common-sense. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 2, 2013, 4:28pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/45 "2013-06-02T16:28:53Z")
I see the main point of friction to be crimes committed in the last 30 years or so, where the physical evidence still exists, because that’s the time period over which DNA testing was introduced and improved. Advances in getting DNA from smaller and less ideal samples continues, so it’s plausible that a guy convicted in 1996 after a trial where DNA evidence was available, but maybe was inconclusive, could be exonerated after new testing. But from the State’s vantage point, we all need to accept that most defendants get convicted without conclusive physical evidence, and that it’s legitimate. We don’t want to give bored old cons more bites at the apple _just to be extra sure_, because they will take advantage of it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 2, 2013, 7:26pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/46 "2013-06-02T19:26:26Z")
> [@BigT](#): > > There is no such legal requirement for SCOTUS, though. And the only possible way to override a SCOTUS decision is to amend the constitution, and SCOTUS can make a decision overriding that. What the flying fuck are you talking about? Congress can legislatively overrule SCOTUS on any issue that isn’t decided based on a constitutional imperative. And no, SCOTUS cannot make a decision “overriding” a constitutional amendment. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 3, 2013, 5:07am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/47 "2013-06-03T05:07:21Z")
One point to bear in mind is that this entire debate about “actual innocence” is an outgrowth of the unusual situation in the United States where the ultimate appellate court, the Supreme Court of the United States, is a court of limited jurisdiction. It only has jurisdiction to review state court decisions for questions of federal law and federal constitutional rights. The Scalias argue that actual innocence is not per se a federal constitutional right, and therefore is not a basis for overturning the state courts; the non-Scalias argue that if someone is actually innocent, that is the ultimate failure of due process and therefore warrants review by the federal courts. In court systems where the final appellate court is a court of general appellate jurisdiction, this type of issue simply doesn’t arise. For instance, in Britain and in Canada, the ultimate appellate courts have the general jurisdiction to review the judgment under appeal for all possible errors, so this debate simply doesn’t arise. It’s an interesting example of the differences in appellate court structure influencing the substantive law that those courts then apply. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [June 3, 2013, 6:52am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/48 "2013-06-03T06:52:49Z")
> [@Northern\_Piper](#): > > In court systems where the final appellate court is a court of general appellate jurisdiction, this type of issue simply doesn’t arise. For instance, in Britain and in Canada, the ultimate appellate courts have the general jurisdiction to review the judgment under appeal for all possible errors, so this debate simply doesn’t arise. I’m not sure this is so. The dispositive question would be whether a convicted defendant could go to the Supreme Court of Canada and say, “There was absolutely nothing wrong with my trial. It was completely fair and I was afforded all resources and opportunities for my defense that I could possibly desire. I raised every issue in my defense that I needed to, and the prosecution rebutted those defenses beyond reasonable doubt (or any rate, the finder of fact so found). Notwithstanding all this, I put it to you that I have new evidence that establishes my innocence and thus request that my conviction be vacated (or a new trial be held),” and get the relief sought. Now, I don’t know Canadian law, so maybe this sufficient to get a vacatur or new trial in Canada. But I do sort of doubt it, because I suppose that Canadian criminals are at least as savvy as American ones, and if they could get do-overs just by saying, “Well, I have some new evidence now,” the Canadian courts would be deluged with such requests. So, I suppose my question is: If a Canadian convict says what I set forth in my first paragraph, will the courts relitigate the conviction? If not, you have the same actual innocence conundrum that we have. ---
**Author:** ![Randvek](https://avatars.discourse-cdn.com/v4/letter/r/a6a055/32.png) [@Randvek](https://boards.straightdope.com/u/Randvek)\ **Post date:** [June 3, 2013, 7:31am UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/49 "2013-06-03T07:31:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What the flying fuck are you talking about? Congress can legislatively overrule SCOTUS on any issue that isn’t decided based on a constitutional imperative. And no, SCOTUS cannot make a decision “overriding” a constitutional amendment. De facto, that’s true. De jure? It’s debatable that there’s anything that Congress can’t overrule SCOTUS on, up to and including constitutional imperative. Every time Congress and/or the President has taken issue with SCOTUS, one side or the other has always backed down. The \*actual \*power of the Supreme Court has never really been tested. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 3, 2013, 1:35pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/50 "2013-06-03T13:35:33Z")
> [@Kimmy\_Gibbler](#): > > I’m not sure this is so. The dispositive question would be whether a convicted defendant could go to the Supreme Court of Canada and say, “There was absolutely nothing wrong with my trial. It was completely fair and I was afforded all resources and opportunities for my defense that I could possibly desire. I raised every issue in my defense that I needed to, and the prosecution rebutted those defenses beyond reasonable doubt (or any rate, the finder of fact so found). Notwithstanding all this, I put it to you that I have new evidence that establishes my innocence and thus request that my conviction be vacated (or a new trial be held),” and get the relief sought. > > … > > So, I suppose my question is: If a Canadian convict says what I set forth in my first paragraph, will the courts relitigate the conviction? If not, you have the same actual innocence conundrum that we have. Yes. The test is whether the new evidence is sufficiently probative that, if known to the jury, it could have affected the outcome. The accused does not need to prove actual innocence, and that is not part of the analysis. The leading case is _[Reference re Milgaard](http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/864/index.do)_, where the accused was tried and convicted of murder, and sentenced to life imprisonment, in 1970. Doubts were raised about the conviction during the next two decades, and the matter eventually was referred to the Supreme Court by the federal Cabinet. The Court considered the new evidence and concluded: > [@](#): > > At the hearing, the Court heard several witnesses, including the accused, who had not testified at trial, and fresh evidence was presented. > > _Held:_ The accused’s continued conviction constitutes a miscarriage of justice. It is recommended that the conviction should be quashed and a new trial ordered. > > While there is some evidence which implicates the accused in the murder, the Court is satisfied that the fresh evidence presented at the hearing, particularly as to the locations and the pattern of sexual assaults committed by a convicted serial rapist, constitutes credible evidence which taken together with the evidence adduced at trial could reasonably be expected to have affected the jury’s verdict. The continued conviction of the accused would amount to a miscarriage of justice if an opportunity was not provided for a jury to consider the fresh evidence. This Court therefore advises the Minister of Justice to quash the conviction and to direct a new trial under s. 690(a) of the Criminal Code. It would be open to the Attorney General for Saskatchewan under the Code to enter a stay if that course were deemed appropriate in light of all the circumstances. However, if a stay is not entered, a new trial proceeds and a verdict of guilty is returned, then the Court would recommend that the Minister consider granting a conditional pardon to the accused with respect to any sentence imposed. Now, _Milgaard_ was an unusual case that was referred directly to the Supreme Court. The normal post-conviction review process is a review by the relevant provincial Court of Appeal, on the request of the federal Minister of Justice. (The federal Minister of Justice has the gatekeeper function in our post-conviction review process, as he/she has not been involved in the criminal proceedings.) When a matter is referred to the Courts of Appeal under this procedure, the _Milgaard_ test is the applicable one: given the fresh evidence, is there a reasonable possibility that the jury would have reached a different conclusion? If so, there should be a new trial. Under this process, the focus of the inquiry is the strength of the new evidence. Note that in _Milgaard_, the accused did not testify at trial, on the advice of his counsel. He was allowed to testify in the Reference, and that testimony was a factor which the Court took into account in recommending that the conviction be set aside. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 3, 2013, 1:39pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/51 "2013-06-03T13:39:29Z")
> [@Randvek](#): > > De facto, that’s true. > > De jure? It’s debatable that there’s anything that Congress can’t overrule SCOTUS on, up to and including constitutional imperative. Every time Congress and/or the President has taken issue with SCOTUS, one side or the other has always backed down. The \*actual \*power of the Supreme Court has never really been tested. Well, yes. When push comes to shove, Congress would win. I only posted that in response to the contention that _SCOTUS_ is somehow omnipotent. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [June 3, 2013, 1:42pm UTC](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668/52 "2013-06-03T13:42:23Z")
> [@BigT](#): > > There is no such legal requirement for SCOTUS, though. And the only possible way to override a SCOTUS decision is to amend the constitution, and SCOTUS can make a decision overriding that. As already noted, this is only true in cases where the SCOTUS interprets or invokes the Constitution, not the law. And the SCOTUS may interpret any part of the Constitution a certain way, perhaps not as Congress intended, but cannot simply override an amendment (which I think is what you meant). > [@](#): > > If all you rely on is the law, then SCOTUS can do whatever the hell they want. Not sure what you mean by this. SCOTUS can only consider questions that come before it, and those only involve disputes about the meaning of the law most of the time. [Previous page](https://boards.straightdope.com/t/attorneys-please-put-this-scalia-quote-in-context/659668.md?page=2)