Monthly Archives: October 2019

Alibi, Per Se – SCOTUS Follies Edition

So one of the “Petitions of the Week” floating around the SCOTUS calendar is another illustration of the disconnect between those who are making the decisions that govern criminal trials and those who have actually conducted such trials, the two groups being mutually exclusive at this point.

Weighing in as an amicus on the almost absurdly subtle “issue presented” with a self-described “strong interest”, the National Association of Criminal Defense Lawyers makes this assertion:

Until this case, governing precedent across the nation had held uniformly that trial counsel’s failure to introduce neutral, credible alibi testimony undermines confidence in the verdict such that a reasonable probability exists that, but for trial counsel’s error, the outcome would have been different.


“Neutral, credible” is an important qualifier, although in the hands of the SCOTUS there’s no telling how messed up that characterization might get.  Look what they’ve done with the term “materiality”, for example.

But see here.  The NACDL also refers to “testimony”.  We think any alibi that relies upon testimony of any witness – as opposed to, say, independent video footage of the defendant being elsewhere – is an extremely dangerous defense, for reasons we have discussed before.  The defense labors against a nearly unbridgeable credibility deficit with respect to every “witness” it produces, compared with the government that is prosecuting, whose witnesses are presumptively believed.  And the presumption is nearly – not quite, but nearly – conclusive.

So the real and present danger for the defense is that your “alibi witness” will be disbelieved by the jury, and if they disbelieve the alibi witness there is only one alternative that logically follows – at least to most juries – and that alternative is that the defendant is guilty because he’s lying about not being there, and recruiting others to lie for him.

A disbelieved alibi defense, in other words, is fatal 100% of the time.

But realistically, you’d have to do some criminal defense work to understand that.  And not only would you have to do criminal defense work, you’d have to understand why the dogma that “neutral, credible” alibi witnesses must be produced or the defense has been incompetent has been established in the first place:  prosecutors and judges like it.  They know how easy it is to shoot down an alibi defense and obtain a conviction.

And not one of the justices on the SCOTUS has ever done any criminal defense, and neither have any of their law clerks.

We don’t know what other criminal-defense type issues might appear in the SCOTUS this term but this one bothers us because of where it might end up.


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Hobbesian, Holmesian, Columbian

We are flushed out.  Again.

A paean to Oliver Wendell Holmes, and his second most oft quoted* quote:

“The life of the law has not been logic; it has been experience…”

Logic v. Experience – or put another way, Reason v. “Science” – has been for over two thousand years the fundamental preoccupation of epistemology in “western thought” which of course we have explained before.  It is a very, very large and almost laughably esoteric subject.  You might say it is the subject underlying every other subject.  Judges and other rulers – and for that matter lawyers – who are not otherwise trained in epistemology should stay away from it and leave it to the professionals.

So again we must point out the incoherence and prompt self destruction of this nihilist proposition, the same fate of every nihilist proposition.  Holmes chose his words carefully.  “Life” – at least as we know it – is moving, changing and dynamic, and quite unlike the fixed and unchanging meanings of static, logical propositions.  So to say that the life of the law is experience and not logic is a simple tautology.  The life of anything is certainly not logic, by definition.

But a more basic objection, of course, is that “the law” is not a living thing but rather an abstraction.  Abstractions do not “experience” anything at all.  So the second most famous Holmes statement, to the extent it is not a tautology, is completely meaningless.  It has no rational content whatsoever.

We don’t intend to disparage Holmes personally.  He suffered traumatic experiences in the American Civil War.  He “experienced” the carnage of Antietam.  That might well impart a reflexive belief that experience trumped logic.

Still.  That reflexive belief, put into practice by judges and rulers, is a horrifying inversion of reality.  As we have noted, logic fully informs and governs our experience.  Indeed it is not an exaggeration to say that as far as we can tell, logic governs the whole universe.

This is probably an appropriate little follow up to our earlier musings (follow the above links, please) on the subject since today is Columbus Day, which has become quite a controversial holiday and in many places observed more as “indigenous peoples day”, on the theory that the real Christopher Columbus was a cruel tyrant who should not be honored with a holiday.  Maybe that’s true.  Maybe not.

But logically speaking, it can’t be both.  Ugh.


*The first most oft quoted is undoubtedly “Three generations of imbeciles are enough.” from his pro forced sterilization decision, Buck v. Bell.


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