Different ply’s (or layers) of wood contribute to different thicknesses, producing different sounds. Different woods used will also alter the sound produced. Without a doubt, one of the best ways of knowing which instrument is the right one for you is to test several out. The music industry is full of big names, big favourites, and many trendsetters. People, and buyers, often forget that music is an individual and self expressive medium. One that should not be based purely on the habits of consumers, but rather what that instrument has to offer to your own unique sound and style. Visit your local store and speak to staff members to arrange a small test in-store of various maple snare drums.

Trying different thicknesses, as well as sizes and makes, will produce different sounds. Try not to let the store member pitch a product to you, instead, listen closely to the sounds produced by each drum, and decide which of them sits more comfortably on your ear. Different people are looking for different sounds, I simply can’t emphasise enough how important it is to dedicate time test driving as many snare drums as you can.

Yamaha, a name renowned throughout the music industry as experts in many different instruments, have a line of maple snare drums, including the AD – 1460BC, the BDS-1050 and many more. Premier and Ludwig also have a range of maple snare drums for you to choose from. Premier’s Modern Classic maple snare drum is an award winning product. Again, with so much choice, it is critical you spend time finding the right drum for you based on sound first. Once you have found the drum that produces the perfect sound, armed with the make and model of that drum, you can hunt away online and grab yourself a great deal.

Don’t just get sold in a moment, especially during your test run in the store. This instrument will be one of many friends to your drum kit, and it needs to play well with the rest of the gang. Spend the time to make sure your purchase leaves you sat at the kit having fun for hours on end, and not sat sulking because the drum you purchased was a mistake. If you do experience love at first sight with a maple snare drum, and your online searches have been fruitless for finding one within your price range, then be patient, and save up. You’ll be grateful you did once you have it.

Senate Finance Committee Chairman Max Baucus’s (D-Mont.) proposal to impose an excise tax on high-value health insurance plans gained momentum Sept. 10 after President Obama endorsed the concept in a speech to the nation.

Obama, speaking to a joint session of Congress Sept. 9, said he wants to see a $900 billion health care reform bill that would be paid for largely through health-related spending cuts and new fees and taxes on the health care industry.

The president specifically mentioned a plan under discussion with Finance Committee negotiators that would impose a 35 percent excise tax on insurance companies and insurance administrators for any health insurance plan that is valued at more than $8,000 for individuals and $21,000 for families.

While Obama referred to the plan as being paid for with a “fee,” Baucus said the president was clearly alluding to the excise tax and other provisions he has offered the Finance Committee.

Obama’s plan was “uncannily similar to what we’re working on,” Baucus told reporters after a meeting with the “Gang of Six” bipartisan Finance Committee negotiators. “The final price tag is what we’re shooting for. The pay-fors are very similar to what we’ve proposed … It’s basically our plan,” Baucus said.

The House Ways and Means Committee passed a completely different plan to offset the costs of its health care reform bill (H.R. 3200) that relied on a surtax for households earning more than $350,000 per year.

Rangel to Consider Excise Tax
House Ways and Means Committee Chairman Charles Rangel (D-N.Y.) told reporters Sept. 10 he was surprised that Obama discussed using the excise tax on insurance policies, but is willing to consider anything that would facilitate House passage.

Rangel said the change will not be in the House bill when it comes to the floor, but, “I want to make certain that there’s no requests that are being made that would enhance the passage of the bill that [are] going to be ignored.”

The House Democratic leadership is examining the bills approved by Rangel’s committee and the Energy and Commerce and the Education and Labor committees, and trying to craft one package that can secure the 218 votes needed for House passage.

Despite the similarities between the proposal before the Finance Committee and the plan laid out by Obama, Rangel remained uncertain of what a final bill in Congress would contain.

“I refuse to speculate on what the Senate Finance Committee has done because I don’t believe they know what the hell they have done. It is so fluid over there I can’t spend time thinking. … I have my hands full with my caucus without thinking about what they’re doing,” Rangel said. “I cannot say any more, except I’m willing and have to consider anything that will expedite 218.”

Aside from mentioning the excise “fee,” Obama used most of his speech to call on lawmakers to stop bickering and deliver health care reform that can stem rising health care costs, provide security and stability to those who have insurance, and provide insurance to millions more Americans.

The president said his plan would require individuals to have basic health insurance and would require employers either to offer their workers health care or “chip in to help cover the cost of their workers,” with 95 percent of all small businesses exempt from these requirements.

“Much of the rest,” he said, would be paid for with revenues from pharmaceutical and insurance companies, including charging insurance companies a “fee” for expensive policies. Speaking in favor of a new government insurance exchange, Obama said some individuals and small businesses unable to afford some of the insurance plans offered within the exchange would receive tax credits based on need, although he did not provide any details.

Senate Majority Leader Harry Reid (D-Nev.) said Sept. 10 that Obama’s speech clearly showed that it is up to Republicans now to decide how much they would like to participate in the health care debate.

“There are Republicans out there willing to help us. If there aren’t, we can always go the route of reconciliation, but that’s a second choice,” Reid said, referred to a procedural move that would allow budget-related parts of the health care bill to be passed with only 51 votes, instead of the usual 60 votes needed to avoid filibusters in the Senate.

Republicans React
Republicans noted that Obama has made more than two dozen national speeches on health care and said Americans do not have a problem with the “sales pitch,” but with the product.

Sen. Charles Grassley (R-Iowa), ranking member of the Senate Finance Committee and one of the five senators negotiating with Baucus on the bill, said in a statement issued after Obama’s speech that it was the president who “passed up a big opportunity” by not ruling out the “public option” health plan.

On the House side, Minority Leader John Boehner (R-Ohio) criticized the House health care plan. He said the Congressional Budget Office already has determined that the legislation would be ineffective at lowering health care costs and would actually increase the federal budget deficit dramatically over the long term.

The House bill adds about $240 billion to the deficit in the first 10 years, and that number increases in later decades, Boehner said.

Bill Possible Before Thanksgiving?
In spite of the continuing criticism from Republicans, Vice President Joseph Biden predicted on morning television shows Sept. 10 that the health care bill could be completed before the end of November.

Reid also said he hopes a bill can be accomplished “well before Thanksgiving” and said he is encouraged now that Baucus has set a schedule for the Finance Committee to mark up its bill during the week of Sept. 21.

House Speaker Nancy Pelosi (D-Calif.) said there is no timetable for bringing the health care bill to the floor other than getting Obama something that he could sign in 2009. She said, “When we are ready, we will take the bill to the floor.” She pointed out, however, that House members are waiting to see the Senate Finance Committee product.

“From what we’ve heard of it, there are many good things that are consistent with what we have in our bills and some things where there are areas of disagreement,” Pelosi said. “But that’s the legislative process. I don’t want to say disagreements, they’re just different proposals, and we’ll see how we resolve the different pieces of legislation.”

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Securing Justice – Social, Economic and Political to all citizens is one of the key mandates of the Indian Constitution. This has been explicitly made so in Article 39 – A of the Constitution that directs the state “to secure equal justice and free legal aid for all its citizens.” But the experience of last 57 years shows that the state has failed to dispense quick, inexpensive justice to protect the rights of the poor and the vulnerable. Hon’ble Justice B.P. Singh, a serving Judge of the Hon’ble Supreme Court, spoke on the topic “Justice Delayed is Justice Denied: the Plight of Indian Poor” at Observer Research Foundation and said that “the situation today is so grim that if a poor is able to reach to the stage of Hon’ble High Court, it should be considered as an achievement. It has merely become a court of the rich.”

The justice delivery system is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much time that even a generation is too short to get any type of redressal. A brief look at some of the judicial statistics would tell the true story of the state of justice in India today: -

On an average, 50 lakh crimes are registered everyday, which are sought to be investigated by the police.

The pendency of criminal cases in subordinate courts is in the region of 1.32 crores and the effective strength of judges is 12,177.

· The number of under – trials in criminal cases pending in the courts is 1.44 crores and of these over 2 lakh persons are in prison.

· On an average, Courts are able to dispose off 19% of pending cases every year.

The reasons for delay could be attributed to the fact that every case moves from the lowest to the highest level. Too many revisions, bails, applications make five cases of one. The Centre and the State Governments also contribute to the backlog. Not only is the Govt. the biggest litigant but also it creates fresh litigation because it doesn’t honour judicial decisions. Another obstacle to speedy justice is adjournments. As far as the situation in Subordinate Courts is concerned, the infrastructure is non existent and at times the judges have to write judgments with their own hands as they don’t have stenos. Every subordinate judge is caught between oppressive workload and hardly any time or facilities.

Constitution which mandates that the state shall secure that the operation of the legal system shall promote justice, on a basis of equal opportunity and shall ensure that opportunities for securing justice are not denied to any citizen. The Judiciary is bound to shape the processes of the law to actualize the constitutional resolve to secure equal justice to all. A people who are illiterate by and large, indigent in no small measure, feudal in their way of life, and tribal and backward in large numbers, need an unconventional cadre of jurists and judges, if equal justice under the law is to be a reality. If there is breach, judicial power must offer effective shelter. Even if a legislation hurting or hampering the backward sector is passed, the higher courts have to declare the statute void, if it be contra-constitutional. In sum, the judicial process, in its functional fulfillment, must be at once a shield and sword in defending the have-nots when injustice afflicts them. And this must be possible even if the humbler folk, directly aggrieved, are too weak to move the court on their own and a socially sensitive agency advocates the cause. Securing justice – social, economic and political to all citizens is one of the key mandates of the Indian Constitution. This has been explicitly made so in the Article 39-A of the Constitution that directs the State – to secure equal justice and free legal aid for the citizens. But the experiences of last 57 years show that the State has failed squarely on addressing some very basic issues–quick and inexpensive justice and protecting the rights of poor and the vulnerable. The justice delivery system is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.

That it will take more than 300 years to clear the backlog of cases in Indian courts is proof enough that our criminal justice system is sick, stagnant and in urgent need of a complete overhaul. A committee was set up, a couple of years ago, under Justice V S Malimath to examine changes and its report came, coincidentally, at the time that justice was finally done in the Uphaar Cinema case and just before the fourth anniversary, Jessica Lal’s horrific murder. Both cases draw attention, in different ways, to the glaring flaws in our justice system.

In the Uphaar case it is shocking that it took ten years to establish that the 59 people died because of criminal negligence on the part of the cinema management and the Delhi government. It was clear from day one that nobody would have died had the cinema followed safety rules but because the wheels of Indian justice move at the pace of our national vehicle – the bullock cart – it took ten years for justice to be done.

Causes of Delay:-

Delay in disposition of cases- Due to huge pendency, the cases take years for its final disposal, which would normally take few months time. The arrears cause delay and delay means negating the accessibility of justice in true terms to the common man. The very core of a civil society and rule of law is the provision of justice, but the decision must be delivered within a reasonable time. It is totally unfair if a suspected criminal waits for trial for years and is ultimately found innocent. Similarly, the victim of the crime will be also not satisfied if there is no punishment to the criminal for so long. Only speedy justice could ensure effective maintenance of Law and order. Quality of justice not only promotes peace in the society but also strengthens internal security of the country. There are number of litigations which could be avoided if Govt. officials had taken interest, for e.g. section 80 of CPC require a prior notice of two months to Govt. by a party who wish to sue the Govt. The purpose of this section is to give time to Govt. to settle the matter with such party by taking proper and suitable action, and thereby could avoid unwanted and unnecessary litigation. But the utter failure of Govt. official in taking a quick, bold and suitable action inspite of giving time forces a person to file case.

Strength of Judges are inadequate according to population and bunch of cases. As of January 2005, pending cases in the Supreme Court number 30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore – a totally unacceptable situation. Much of this is due to shortage of judges. The ratio of judges to population is 10.5 to one million, the lowest in the world. Even this low level is not reached because of the accumulation of vacancies in the Benches -140 against the approved strength of 668 judges in high courts and 2000 against 15000 in subordinate courts.4

The infrastructure of the lower courts is very disappointing. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The Courts have no convenient building or physical facilities. The executive has failed to provide necessary infrastructure to enable judiciary and function normally. Good library, requisite furniture, sufficient staff and reasonable space are the need of the qualitative justice. In some courts security systems is also not good. The legal profession is one of the most struggling profession but no social security scheme is available for lawyers, some financial aid should be provided to Bar associations or the new beginners by the government. The good working condition of the lawyers would help in the excellence of service and qualitative justice to the litigating public.

Competency of the Other Staff in Court : It should also be kept in mind that not only Judges and Advocates be competent but also the administrative and clerical staff. The clerical staff must be free from all type of corruption. This is the era of computerization. The highly technical and competitive clerical staff will also help in speedy course. We all know how much time is taken in getting merely a copy of the judgment? It is hard that money is used to speed up the process. The bribe giver does not wish, to get anything done unlawfully, but merely wants to speed up the process of movement of files and communication relating to decision. Certain sections of staff concerned do work only after taking money.

Investigative agencies generally delay : The investigation of crime It is generally heard that the accused gets bail as the investigating agency failed to submit charge sheet within statutory period. The combination of several functions, such as crime investigation, riot control, intelligence gathering, and security of VIPs by a single police force has a devastating effect on the criminal justice system. Nowadays, the crime investigation is not immune from the partisan politics. The power of the government to drop criminal charges against the accused has further abused it. The lethargic police investigation is also a ground of slow process of law.

Consider the condition of the poor victims of Bhopal gas Leak disaster, which took a toll of 15000 people. Twenty years had passed to that ghastly incident; still now victims were fighting for its compensation, which fails to measure up the damage caused to them. Consider the terrible situation occurred in August 1991 as massacre of Dalits at Tsundur in Andhra Pradesh. 13 years had passed to that incident, the families of the victims of Tsundur, still await justice for those who died. They say, they will not find any peace until the guilty are punished for their crime. Consider the condition of those girls who were brutally gang raped during the Godhra riots in front of their helpless family members. Consider the victims of Best Bakery case who still awaits justice to be dispensed in their favour but the climax starts with the key witness in the case turned hostile and the entire fate of the Bakery case is in turmoil. Today the victims of the all the above-enumerated cases know full well that the price of truth is extremely high.

“Still they are waiting… But for what? Whether all these amounts to justice?”

Remedies to Overcome Delay (Suggestions)

I. Talking about the strategies to deal with justice delay, an improved justice delivery system means cutting down the number of adjournments, reducing the time for arguments, keeping a check on review petitions/ frivolous petitions, stopping lawyers extending cases and so on.

II. Punishments should be very stringent and the implementing authorities should be tough so that crime comes down automatically.

III. Lawyers should encourage out of Court settlements.

IV. In case a lawyer looses a certain number of cases, his license should be suspended for sometime so that lawyers refrain from taking up frivolous cases.

V. Govt. Officials should be made personally liable for lapses so that cases against the Govt. are reduced.

VI. The number of appeals to be filed for each category of case should be fixed. Every litigant should not be allowed to go to the Hon’ble Supreme Court. If need be, the law can be changed accordingly.

VII. It is needed to establish a body at national level composed of Judges, Lawyers and Legal academics, which should be charged with a duty to conduct examinations for recruitment to Indian Judicial Service (IJS). Article 233 will have to be amended to confer power on the president to appoint members of Indian Judicial Services on the recommendation of National Judicial Service Commission. The creation of Indian Judicial Service is appeared necessary to get best available talent in the country.

VIII. There is urgently need to improve the basic infrastructure and management of resources. Modern technology and use of computers could also increase the efficiency of the court system. The judiciary has also to learn management techniques through training at all levels. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The lower courts are the basic institution of justice and to improve the quality of the justice dispensed with, it is necessary to improve their infrastructure by modern technology. Lack of funds should not be allowed to enter in the way of development of infrastructure, as external security is necessary, internal maintenance of law and order is also necessary for the internal security, national interest, peace and progress. In general budget certain handsome amount could also be allocated to judiciary like defence and education or a separate judicial budget should be placed, like railway budget. The panel of government lawyer should also be on merits not on the basis of nearness to ministers. As the government is the largest litigant, more transparency is required on their part. Govt. counsel should be selected on the basis of merit, efficiency, integrity, by some transparent manner. There should also be some permanent vigilance provision to observe the working of the public prosecutors. Security system in courts also needs improvement for proper confidence of people and fearless functioning of system. Information-counter should be set up in every court for the convenience of litigating public.

IX. Our criminal justice system has the urgent requirement of Independent Investigative Agency. Delay in police investigation is also one reason due to which cases linger on for years. It is, therefore, good to create an independent wing of police force, fully in charge of crime investigation, and functioning under the direct control of independent prosecutors. That wing should be accountable to judiciary and not to particular government of a time. The practice of torture and third degree methods, extra judicial execution in fake encounters may be stopped also when crime investigation machinery became accountable to judiciary. Such type of police wing also became knowledgeable about the type and method of the evidence needed. Hence, baseless cases, which lead acquittal, also could come down. So, there should be co-ordination between police and prosecuting agencies. The early disposal of case also boosts the morals of police force and will save time, which would have been taken in producing arrestee to the court Horn time to time.

X. We have inherited British legal system, British prescribed it at that time, without considering the need of Indian society nor did they consider the practical of the procedure. So, this system is drawn from different sources without seeing the ground realities. Some people today prefer to keep quiet, rather than go to the court of law. So, now this system is more Indianised for making it fit to society. It is heard that in ancient time justice system was very good. The disputes were settled on the spot by delivering justice. But ancient justice proceedings were oral in general and therefore no much record is available. Now we can take modem know-how from the countries, which have best justice delivery system by getting acquainted with the procedure followed there, if fit to Indian society. The civil and criminal procedure codes and the laws of evidence have to be substantially revised to meet the requirements of modem judicial administration. Though most of procedural laws are effective even today but some provision needs revision, especially the civil laws. To lessen the burden of cases, we may introduce the concept of’ Plea-bargaining’ by decriminalization of those wrongs, which can justly be dealt with by compensatory remedies (Compensation to victim like in tort). The institutions involved in justice delivery system such as the police, the prosecution, and the court, prison etc.-requires to be reformed in terms of organization, procedures, resources and accountability. So that, nowhere citizen feels uneasiness. There should be time limits prescribed for adjudication. There should be uniform formats for the appeals and petitions to make the procedure easy. The judgment should be in brevity and clarity. The concept like of public interest litigation is always welcoming, which is affordable to common men. Hence, there is a lot of scope to improve the situation. For e.g. Section 301 Cr. P.c. should be amended to allow the victim to appoint a lawyer of his choice in addition to public prosecutor to defend his case. Similarly, Section 3 13 (3) of Cr. P.C. also be amended so that the accused would be held liable for refusal to give answer or telling lie. The victim will be allowed to cross-examine the accused to elucidate the truth. There must be some fixed time for presentation of written statement, counter claim and reply like the plaint, under the I imitation Act. After all procedural law is meant to further ends of justice.

Conclusion

While the problem of delay looks daunting, it can be dealt with, by having more fast track Courts, making judicial services more attractive thereby attracting good lawyers and filling up all vacancies at various Courts. We can conclude from the above discussion that we should not resort in extra-ordinary hurry-up of cases by whatever means. As justice delayed is justice denied, similarly, the saying, justice hurried is justice buried is equally true. Therefore, sufficient, reasonable and due hearing of every cases with consideration of its circumstances is the necessary requirement of natural justice and balance of convenience. In fact, the untiring efforts put by fear and flavorless Indian Judiciary is doing commendable job of imparting justice in spite of so many difficulties, which created faith of public in the rule. Of law is a great achievement, which really requires deep appreciation. Social justice will be possible only if the entire concept of egalitarian politico-social order is followed, where no one is exploited, where every one is liberated and where every one is equal and free from Hunger and poverty. The proverb ‘Justice Delayed is Justice Denied’ is proved as it is denied to the poorest of the poor. Providing basic necessities to them will amount to Justice because the definition of justice varies from individuals to individuals on the basis of its economic conditions. According to B.P.Singh J the situation today is so grim that if a poor is able to reach to the stage of a high court, it should be considered as an achievement.  Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Finally, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

“Without Justice, life would not be possible and even if it were it would not be worth living” ……Giorgio Del Vecchio”

Teens with babies, our sons carrying AKAs.  What has happened to our children, can this crisis be turned around?  Our children are growing up so fast; they don’t seem to be children very long.  Before you know it, they are having babies of their own and our boys are on the streets gang banging, shooting up, and lying dead.  What happened to our children?

Did the vanishing dinners at home with the whole family steal our children away?  Remember when the entire family would sit around the dinner table, say grace, and have dinner together?  This time helped each family member establish a place in the family and gave each family member an opportunity to share the day’s triumphs and failures.  Parents used this time to teach Bible values for character molding.  They could take cues from the discussions around dinner to hold follow-up sessions with their children.  Family dinners were times of bonding, teaching, encouraging, and establishing the unit of family support.  Without the family dinner, where do our children receiving training, support, and feelings of belonging?

Perhaps it is mothers, who have to work away from home, who are responsible.  Today about 25% of families are headed by single mothers, most of whom work outside of the home.  Some hold two and three jobs just to make ends meet but yet they represent the poorest sector of the population.  Where are their children while these moms are working?  Some are cared for by babysitters, daycare workers, and grandparents while others are left alone to fend for themselves until the mothers get home from work.  After work, mothers stagger in from an exhausting day, have to prepare a meal, do laundry, bathe the children, and prepare for the next day’s work.  Where’s the training, support, feelings of belonging, and unity of purpose for both mothers and children? 

Maybe we should place the blame on the absentee fathers.  Reportedly 36.3% of families are without fathers.  NEWS BULLETIN: WHERE ARE THE DADS?  YOUR CHILDREN NEED YOU AT HOME!    Some dads may be away in the military, some are in jail, other fathers were only donors from the beginning, and some just have too many children to care for.  Increasing divorce rates are pitting children against children.  Nearly 4 out of 10 first marriages end in divorce with 60% of those families having children; which accounts for over 1 million children each year that experience their parents’ divorce.  Children are vying for their fathers’ attention and support. The divorced-parent children lose; too often, they become divorced along with the wife. 

How about television; is that the thief?  Multimedia exploits youth by representing them as sexy hunks and sensuous sex objects.  Children, as young as seven years old and younger, are depicted in Hollywood in scanty clothing doing sexually explicit dance moves.  Donned with make up and “moves,” young children become our children’s idols–everyone wants to be like them.  Our sons and daughters clamor for the glitz, glam, and physique.  Along with the visual appeal of Hollywood, our children adapt its grown-up, independent bravado and are immediately catapulted from childhood into the adult world seemingly overnight.

Maybe it’s clothing designers who are responsible?  Children’s clothing designers are simply shrinking the sexy, risqué adult clothing into kids’ sizes.  It’s amazing to see two and three year olds sashay around in hip-huggers, halter-tops, and rhinestone-studded jeans.  To accompany the sexually suggestive clothing, our children adapt the attitudes and demeanor of thugs and red-light district clientele. Children learn by what they see and hear then they put what they’ve learned into practice.  In the case of our vanishing children who are growing up too soon, they have learned the life of materialism and family values have been replaced by Hollywood values.

Children are being abducted, sold as sex toys or slaves, even being abused by family members or friends.  Who can we hold responsible for these denigrating, horrific circumstances?   Is it the absence of fathers in the family, absence of mothers due to their need to work, absence of family support, or is it the media or clothing designers?  Who is to blame?

Kudos to those 67% of families who remain together and provide the strong support system our children need.  Continue to stand strong.   As for the rest of us, let’s decide to take responsibility for our vanishing children ourselves.  We buy the scanty clothing, the dolls, games, and the videos that portray children as adults.  We allow others to raise our children while we are absent from the home or we select the television to supervise our children while we are doing other things.  Let’s get back to family dinner and listening to our children when they speak.  Make time for the family to be together.  Let’s regain our children and enjoy their young years before they grow up and vanish from the family.

What may be a witness?

The common law often excluded weird witnesses as incompetent. Now, virtually everyone is presumed “competent” to be a witness under Fed. & S.C. Rs. Evid. 601. There are a few exceptions.

The presiding judge cannot be a witness in the same case over which he or she presides. Rule 605. A juror is incompetent to testify, although in rare cases the juror might be allowed to testify about extraneous prejudicial information or outside influences on the jury itself. Rule 606. Then there are statutes such as the Dead Man’s Statute and the parol evidence rule (actually both a statutory rule under the UCC and also a common-law rule) which make witnesses incompetent.

Like I said, there aren’t many exceptions to competency. The more difficult question is whether certain weird witnesses, although technically competent, may or should be called.

Post-trial testimony by judges

Okay, judges aren’t weird. However, they aren’t your everyday witness. Rarely are judges absolutely barred from testifying in trials where they are not the presiding judicial officer. When a judge’s expected testimony is about something that arose in a prior trial or case, no one wants to call him or her unless absolutely necessary. I suspect that the issue arises more often with the state judiciary than in federal courts, and in my experience, the judge typically sought to be a witness is a state magistrate. This is true for two reasons: (a) first, although record-keeping is much improved in modern times, sometimes the magistrate’s record is incomplete; (b) second, magistrates sign arrest and search warrants which are occasionally the subject of attack in general sessions courts in motions to suppress.

So what’s the rule? Judges aren’t prohibited by Canon 2 of either the Code of Conduct for United States Judges or the South Carolina Code of Judicial Conduct from acting as involuntary (i.e., under subpoena) character witnesses; however, Canon 2 requires the judge to discourage someone from calling her, except when the demands of justice require it. Think about it – imagine how uncomfortable you as an adverse attorney would be if you had to impeach a judge’s credibility?

Judges also are competent to testify in later trials about a prior case over which they were involved as the judicial officer. However, the modern trend is not to let them, “unless the testimony: (1) is critical, and (2) can be obtained by no other means.” In re Whetstone, 354 S.C. 213, 580 S.E.2d 447 (2003). See also United States v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977) (examination of judges as to basis for their opinions disallowed “absent extreme and extraordinary circumstances”). “To show extraordinary circumstances, a presumption as to the regularity of the acts of public officials must first be overcome.” Id. 440 F. Supp. at 896.

Canon 2 also warns against judges sua sponte communicating information to a sentencing judge or a probation or corrections officer. However, a judge may provide information to them if formally requested.

Executive officers

Yes, even executive officers can be made to testify. President Monroe answered written interrogatories, President Nixon had to respond to subpoenas, and President Ford was deposed in a criminal prosecution. Mark Sanford has been sued in a declaratory judgment action in which it was claimed that he was ineligible to serve as governor.

The apogee of a federal executive officer’s involvement with the judicial process is Bill Clinton. He testified in two video depositions for use in criminal proceedings. That was just his start. Paula Jones v. William Jefferson Clinton, 520 U.S. 681 (1997) shows that even the highest executive officer in the land may be sued for wrongdoing while in office. Similarly, in Paula Jones v. William Jefferson Clinton, 36 F. Supp. 2d 1118 (E.D. Ark. 1999), President Clinton was tried and found in contempt. Judge Wright found that his conduct (lying in depositions, interrogatories, an affidavit, and through his attorney – stuff like that) involved dishonesty, fraud, deceit or misrepresentation, or was prejudicial to the administration of justice. Oh yeah, then there was the impeachment before the House of Representatives.

Other officials in the executive branch may be deposed assuming they have knowledge of important facts. Atlanta Journal and Constitution v. Atlanta Dept. of Aviation, 175 F.R.D. 347 (N.D. Ga. 1997) (mayor of Atlanta). Nonetheless, the higher up the food chain, the less inclined a judge will be to allow discovery. For example, it’s been held that an oral deposition of a cabinet-level official usually won’t be allowed. Peoples v. Dept. of Agriculture, 427 F.2d 561 (C.A.D.C. 1970). Moreover, as with judges, a member of the executive branch should not be deposed or examined about his official decision-making process when the decision was made in a quasi-judicial manner. United States v. Morgan, 313 U.S. 409 (1940) (Secretary of Agriculture).

Legislators

Though they are excused from court on certain days during the legislative session, legislators generally are competent and not privileged from testifying at trial. Occasionally one hears of a congressman or senator being called as a character witness, such as when Senator Daniel Inouye recently testified in Alaska Senator Ted Stevens’ criminal trial. Once I had an opponent name a legislator as a character witness just days before trial. After thinking about it, I agreed to waive the late notice if my adversary promised to call the legislator.

More interesting is whether a legislator may testify at trial about the legislative intent behind a statute he wrote or with which he was involved. The federal courts do take notice of legislators’ comments on the house floor during the legislative process.

It’s much harder to determine what goes on in the South Carolina General Assembly, which has steadfastly rejected real accountability. The legislators usually do voice votes so usually no one knows for certain how they vote. Thus, it’s with some logic that since the days of Justice John Rutledge, South Carolina courts refuse to allow members of the General Assembly to testify about the legislative intent of a law, even when the statute’s wording is unclear. See Executors of Rippon v. Executors of Townsend, 1 S.C.L. (1 Bay) 445 (1795).

Bailiffs, sheriffs, and clerks of court

Cases go both ways on the propriety of calling either a bailiff or a deputy assigned as courtroom security to testify during trial. Obviously, because the bailiff is a law-enforcement officer of sorts employed by the sheriff, there is a danger of prejudicing the defendant. Some courts find a bailiff working at a trial per-se incompetent to testify. Other courts allow a bailiff, or sheriff acting as bailiff, to testify depending upon the situation. The issue often turns upon how closely the bailiff is associated with jurors at trial. For example, a bailiff who merely called out the names of jurors while assisting the clerk during voir dire is less likely to influence them than the specific bailiff assigned to escort and guard the jury throughout trial. See generally 98 C.J.S. Witnesses § 197 (Supp. 2008).

More common (and less problematic) are scenarios where a clerk of court is called to testify about the authenticity of court records in her office. This practice is typically allowed. It’s rare to find a case where a party was denied the right to call a clerk as a witness (or objects to a clerk being called).

The ultimate in weirdness

In closing, here’s the oddest of all South Carolina litigation weirdness. In 1935, Gov. Olin Johnson became awfully tired of top Highway Commissioner Ben Sawyer and his gang of pesky confederates interfering with Johnson’s politics. They weren’t carrying out his policies. (Sound familiar?) What took place sounds like a banana republic.

One clear October day shortly before Halloween, the Governor issued a proclamation. In it, he declared the state highway department in a state of “insurrection” and “rebellion.” Gov. Johnson called out the state militia (newly named the “Insurrectionary Troops”) under Major Frank Barnwell. Barnwell was ordered to seize all highways, ferries, and bridges.

Major Barnwell simultaneously invaded the State Office Building where the highway commission’s offices were located. Machine guns were planted at building’s entrances. Sentinels were posted around the building. When the members of the highway commission tried to enter, they were repelled. New, loyalist highway commissioners were appointed who fired the 2,000 employees of the commission, including Ben Sawyer. The militia also seized control of several banks having highway department money. Habeus corpus was suspended.

The supreme court heard the matter in its original jurisdiction. In a 13-page unanimous opinion (per curium, naturally), the court told the Governor that there was no insurrection, to get over it, and reestablished the status quo. Thanks goodness for the judiciary. For the ultimate in weird, every lawyer should read Hearon v. Calus, 178 S.C. 381 (1935).

Next month: More weird witnesses!

Reprinted with permission from the South Carolina Bar. The article originally appeared in the May 2009 issue of South Carolina Lawyer magazine.

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A Swingers party is a happening where adult couples and selected singles meet for an evening of free sex in a safe and friendly environment. This can take place at a private residence or at an actual swingers club where a relaxed atmosphere is created with candles, music, finger food and drinks.

You have to be over 18 in the UK if you want to attend a swinger party. Generally you won’t find anyone younger than 25 at a swapping party. Apart from the age factor a swingers party is really open to anybody. There are a lot of interracial swingers these days so you can expect to find people from many different races at sex parties.

The important thing to remember when you are going to a swingers event is that you are the guest and should behave like the guest. Couples have been ignored by other members for misbehaving at swingers parties.

It’s always important to greet your host and hostess when you arrive at a swingers party and to thank them afterwards. There will be the foyer where the host or hostess will great the guests and encourage them to grab a glass of champagne and mingle with the other guests. This is also the place where new members will get introduced to other couples. If they like you then the chances of them inviting you to other parties are really good. Word of mouth is also huge in the swingers community and you will get a reputation as a likeable swinger.

Be polite to the other guests of the party or event. If they invite you for a threesome or a gang-bang that you don’t want to partake in then just gently say no thanks. Don’t insult them and never try to force yourself on other adults who don’t want you. Remember that no always means no. If you are in a situation where you are telling another member no and they don’t want to back off then go tell your hostess. It is their responsibility to keep all the guests in order and make sure that everyone is having fun.

There isn’t a lot of small talk going on at a swinger party, except for in the foyer. Most adults attend swapping parties to get free sex and then they leave. So don’t feel offended if the couple you just had sex with doesn’t invite you over for tea.

Capital punishment usually sends the wrong message. Why kill people that kill to show that killing is wrong? Many people don’t realize that the state is actually using a murder to punish somebody that committed a murder. It seems that our country should be less vengeful. Why do you think gang wars never seem to end?  A lot of people are saying that racial bias is affecting capital punishment. However, immigrants usually don’t have a lot of money, so they choose a life of crime as an equivalent. In 2001, 74% of people executed were minorities or poor.

Criminals usually only confess to one of their many crimes, because nobody wants to get in more trouble than they already are. But it seems, maybe, death would be exactly what the murderer wants. One in four prison inmates commit suicide. If he dies, the suffering ends immediately; Whereas if you put him in prison, he will have to suffer forever in a place of rape, murder, constant fights, and where they’re treated like animals. Some family members of crime victims may take years or decades to recover from the shock and loss of a loved one. The criminal’s family members also suffers abusive trauma from which they have to recover. Some may never recover. One of the things that helps hasten this recovery is to achieve some kind of closure. Life in prison just means the criminal is still around to haunt the victim. A death sentence brings an end to a horrible chapter in the lives of these family members.

Personally, I think that the biggest reason to keep the death penalty is to prevent the crime from happening again. The parole system now is a joke. Does it make sense to anyone outside the legal system to have multiple “life” sentences + 20 years or other things? Even if a criminal is sentenced to life without possibility of parole, he still has a chance to kill while in prison, or even worse, escape and go on a crime or murder spree. What’s to stop him from killing anyone who might try to bring him in or stop his crime spree? What will the government do? Extend his sentence? Sure, they can take away some prison privileges, but is this enough of to stop the killing? The death penalty should be kept for countless reasons. Here’s an example: In 1965, Robert Massie murdered Mildred Weiss, mother of two, in San Gabriel, CA., during a follow-home robbery. Hours before execution, a stay was issued so Massie could testify against his accomplice. Massie’s sentence was commuted to life when the Supreme Court halted executions in 1972. Receiving an undeserved second chance, Massie was paroled, but eight months later robbed and murdered businessman Boris Naumoff in San Francisco.

The attention given to the execution of 1,000 murderers is repugnant, especially when the loudest voices think the death of a convicted murderer is a tragedy. Yet the deaths and suffering of countless victims is only an easily-ignored statistic. We must think about the lives that all 1,895 murdered victims affected. Every one had families, friends, relatives, co-workers, neighbors. The combined loss is incalculable. We must think about the lives that all 1,895 murdered victims, not the criminals. Every one had families, friends, relatives, co-workers, neighbors. The combined loss is incalculable. I think the death penalty is necessary in the penal system, as it can save many lives and help victims and should be used because 70% of rehabilitated prisoners repeat their crimes.

Effective crowd must talk to one another rather than speaking behind each other’s back. You should know that back biting is totally non-existent or rare in an efficient team and there is always a high level of mutual understanding and trust. This forms a bond among the members of the group and this will lead to rapport, giving team spirit. Tensions are also rare. Effective teams will have a healthy respect for each other’s options and viewpoints. Members will encourage one another and actively listen and will participate during the group discussions. Disagreements do exists but they do not snowball into interpersonal conflicts.

Effective teams must know how to deal with conflicts. Disagreements and conflicts entering subject or work related discussions are considered as a normal occurrence and the members do not harbor any hatred towards one another once the team meeting comes to an end. Effective gangs are true partners with all aspects concerned with teamwork. They have an informal work ethics of sharing and supportive. There are totally aware of their team’s goals and also share the responsibilities and work towards achieving their objectives.

An effective organization must require successful employees. The team realizes the needs to focus on the group’s goals and even rise above personal ambitions. Team members are secure in their individual capabilities and understand the reasons why an organization has initiated a team which should be considered first priority. They are able to work towards executing their tasks in line with common goals of the members. They must have realized that if they work on their individual roles truthfully, personal gratitude is bound to come their way.

The points discussed above are all important for a good team performance. Even though these mentioned points are put into perspective what a successful team is all about, it is also necessary to realize that high performance group requires the right challenge, regular team building programs, ongoing skills training and sufficient recognition and reward for keeping the team’s momentum going.