Tuesday, October 03, 2006

False Memories and The Constitution

End of Witness Accountability Will Have A Price
Paul Carpenter - November 11, 2003

As George Mason, James Madison and their pals were crafting the Bill of Rights, they saw the McMartin case coming from two centuries away. With witch trials fresh in their minds and the Inquisition still in effect, they knew a free society could not exist if prosecutorial zeal is unchecked; unscrupulous authorities can get witnesses, especially children, to say anything.

Therefore, they wrote in the Bill of Rights, ''In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.'' The Bill of Rights does not say the lawyer for the accused has the right to face prosecution witnesses; it says the accused has that essential right.

In the McMartin case in California, and in similar cases across the nation, hundreds of innocent lives were affected by a single preposterous dogma that said children never lie in court when it comes to accusations against adults.

The top interrogator in the McMartin case was Kee McFarlane, who, court documents later revealed, was stymied by some children at the day care center who insisted they never saw the lurid sexual activities that McFarlane believed allegedly took place. ''You must be dumb!'' McFarlane would yell at the children until they agreed to testify the way she wanted.

This was part of a modern tide of witch trials that ebbed only partially after the medical establishment finally persuaded courts that children indeed lie, that they can lie in concert, that they can be easily manipulated to create and cling to false memories and that there should be professional standards and limits for interrogating children.

Bit by bit, however, the Bill of Rights is being eroded by people who want to shift power away from individuals and into the hands of government.

In Pennsylvania, the Bill of Rights were augmented by their state Constitution which had a more explicit regard of the right of criminal defendants ''to meet the witnesses face to face.'' The only way to quash that right was to amend the state's Constitution.

Elections last week (i.e., Nov, 2003) offered two amendments on the ballot to eliminate the face to face requirement. Voters nearly always fall for measures to subvert the Bill of Rights or other constitutional precepts if the measures are presented as noble ideals...proposals to weaken the state's confrontation requirement would pass. This event troubled me most during my two-week vacation. In a free society, there must be a price to pay for those who accuse others. They must be accountable, no matter how uncomfortable that may be.

In Coy v. Iowa (1988), U.S. Supreme Court Justice Antonin Scalia upheld the requirement for all witnesses to testify in front of the accused.

He wrote: ''The state can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses,'' Scalia's ruling said. ''That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.''

When Pennsylvanians voted to deny witness confrontation rights to others, they probably felt there never will be a cost to themselves; there never will be a "Kee McFarlane" coming after them. That's the way it always is with rights; they are less attractive when they benefit only strangers.

But if we let witnesses avoid accountability in criminal proceedings, we all will pay a high price, eventually. See http://truth-justice.org/


Messianic Gentile said...


A few years ago I read a fantastic book called

The Myth of Repressed Memory

by Elizabeth Loftus.

She is a researcher at UW in Seattle. She has written other books and acts as a professional witness for the defense in many cases. I HIGHLY recommend a look at her research. I think it is very strong evidence and a great resource.

Many blessings...

unregistered text offender said...

OK you asked me to read and comment well actually i think you only asked me to comment but i figured i should read it anyway after all i'm not going to let you dictate my 'every' move but joking aside i'm not really sure what to say about i'm aware of these cases but well........ i don't really agree with one of the things the article says really and truely this is not about power being taken away from individuals and given to the goverment its the other way about as in cases of censorship its rarely the goverment doing it, its ussualy individual states and individuals within those states who to pervert the laws of governing because they think that 'they' should be above them 'they' want all of their freedoms intact but if they aren't using one or don't like how its being used or think that they'll never need to use it then they are very happy to take those rights and freedoms away from others.