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> Anyhow, my point is that in the spirit of English Common Law, the foundational rule is that any probative evidence should be admissible. You're citing Englis
by chimeracoder 5y ago
> Anyhow, my point is that in the spirit of English Common Law, the foundational rule is that any probative evidence should be admissible.
You're citing English common law, but this is one of the places where the US Constitution explicitly rejects English common law. Several clauses of the Constitution - including both the Fifth and Sixth amendment - were composed specifically to make these rejections explicit.
For comparison, until the early 19th century, under English law, people on trial for felony offenses were prohibited from having counsel represent them at trial. The Sixth Amendment guaranteed this right explicitly, in order to invalidate any English common law precedent that would have otherwise come into effect.
- wahern 5y ago> where the US Constitution explicitly rejects English common law Or another way of putting it, the U.S. Constitution codified American Common Law, which had already evolved to guarantee a right to counsel in felony cases even before the revolution. English Common Law was already heading in that direction, AFAIU (https://www.jstor.org/stable/1923146 https://www.jstor.org/stable/1923146), but hadn't yet affirmed it categorically--there were still exceptions and caveats in English law at the time of the American Revolution. In hacker terms, the Common Law is a process, not a product. But, yeah, things are far more complex than that little slice of history, which is why I said I didn't necessarily agree with the outcome of that particular case. But it's important to distinguish what you're trying to achieve from how you're trying to achieve it. The Bill of Rights has become articles of faith, which is problematic because there are definitely ways to apply and extend it that actually subvert the underlying principles and purposes.