Monday, November 07, 2005

Next steps

Several of you have asked what happens next in the intelligent design case. Both sides have two more weeks to submit "proposed findings of fact and conclusions of law," which basically means how each side thinks the judge should rule and why.

During these two weeks, the defendants' and the plaintiffs' attorneys will also be working with the judge to determine which exhibits will be admissible as evidence and therefore made part of the permanent record of the trial. The big dispute is over two newspaper articles our side introduced about the June 14 board meeting, both of which stated that the word "creationism" was used at the meeting. The record of the trial will be closed after that.

Following the submissions of proposed findings, each side has one week to respond to the other (putting us at November 25). After that, the judge will begin deliberating. He stated at the trial on Friday that he will do his best to make a ruling by the end of the year or early January at the absolute latest. That's actually a fairly quick turn-around time for a case this complex.

The judge will be looking how the Lemon test applies. The purpose of the Lemon test (based on a 1971 US Supreme Court case, Lemon v. Kurtzman) is to determine when a law has the effect of establishing religion. This Morning Call article gives a pretty good summary and explanation of the Lemon test and its application to this case.

4 Comments:

Anonymous Anonymous said...

Why is there an argument over the admissability of the newspaper articles? They document a public event witnessed by several people, not just the reporters, and several of them were brought to the stand to attest to their accuracy. Right?

So on what possible grounds is the defense arguing to exclude these articles? Merely that they're devastating to their case?

3:03 PM  
Anonymous Anonymous said...

IIRC, the objection was hearsay. The articles report what people said as claimed by the reoprters, and often not as verbatim quotes, while thedefense witnesses all say those things were *not* said at that time.

One of the things Judge jones is going to have to decide as a matter of fact is who is telling the truth. Given a nmber of other statements made by those very same defense witnesses, that shouldn't be too difficult.

(I'm just kind of waiting for the comments about conspiracy, perjury and contempt of court....)

4:12 PM  
Anonymous Joe Perullo said...

I was wondering if there was any comments on why the judge would use the Lemon test. While it has not been overruled by the COURT, it has been called a Ghoul by Scalia, Thomas rejected it and vitiated it in Agostini and again in Zelman, and The former Chief thought it was a useful signpost and not THE test to exclusively use.
With this criticism and this is only the tip of the iceburg of the criticism of Lemon, I find it interesting that it will be employed and then likely reviewed in the Circ Court of Appeals.

5:28 PM  
Anonymous Anonymous said...

Regarding the Lemon test, while individual justices of the US Supreme Court have criticized Lemon, it is still established Supreme Court precedent, along with Edwards, and it is binding on all inferior courts.

Over the years there have been so many cases that have relied on Lemon that it seems very unlikely that the USSC will overturn Lemon if Kitzmiller ever reaches the USSC. Stare decisis, you know. The Supes may, however, take this as an opportunity to flesh out Lemon further, and develop other tests for Establishment Clause violation.

With respect to the newspaper articles, I think plaintiffs will be arguing that there is a non-hearsay purpose for their admission. The hearsay rule is that a party cannot enter an out of court statement to prove the contents of the statement.

For instance, if you are trying to prove that W.B. said "Dover HS should teach Creationism" at a school board meeting, you could use direct evidence, such as the testimony of H. B-B.: "I was at that meeting, and I heard W.B. say that Dover HS should teach Creationism." You can't, however, use an out of court statement to prove that same thing, because that out of court statement won't be subject to cross-examination. The court won't allow H. B-B.'s next door neighbor to testify, for the purpose of proving what W.B. said, something like "Heidi came over for coffee the morning after the school board meeting, and she said that W.B. said that Dover HS should teach Creationism."

It might be possible to get the neighbor's statement in for a different purpose than to prove the contents of H. B-B.'s statement, such as to rebut an allegation that H. B-B. made up this story much much later.

Here, the newspaper articles are out of court statements that usually can't come in to prove the contents of the stories. If they are going to come in, it will probably have to be for a non-hearsay purpose.

6:47 PM  

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