The judge has one primary job here: to prevent an appealable evidentiary issue. The prosecution doesn’t get to appeal, so it will try to get everything possible admitted into evidence. However, if evidence is allowed that shouldn’t be, the boys have grounds for appeal. The judge is actually protecting the prosecution by indicating, through his rulings, what it needs to do to make its case. Likewise, the boys should have access to as much information in advance as possible in order to prepare. Good trials do not have “surprise” witnesses or testimony. Interrogatories, document requests and depositions can help the prosecution shore up their case by finding holes in testimony and identifying what evidence the defense might seek to attack. The standard balancing test for evidence is: does the prejudicial effect of evidence or testimony outweigh its probative value. Accusing the trouple of drugging Robert without presenting evidence of a drug would be highly prejudicial and a sure-fire road to an appeal. The “negative evidence” that Robert did not struggle indicates that he was incapacitated in some way, but not in which specific way. I would guess that witnesses would be allowed to testify about the wounds indicating a lack of resistance as well as the presence of needle marks consistent with hypodermics, but not to opine further as to the marks being evidence of paralytics. The jury would be left to connect the dots.

I agree with our bloggers – Connolly’s confidence (“Test the materials, and use any test you want”) indicates that he knows nothing will be found (i.e. that any dugs that might have been in the house and that could conceivably have been administered will have long since dissipated — this could have been ascertained from the search results and from Victor with questioning along these lines without Victor incriminating himself to Connolly).

Doug once compared the Swann St. saga to Shakespearean tragedy; I agree that its darkness is blacker and more Byzantine than any Hitchcock. Some of the bloggers could be characters from a classic novel, and I mean that as high praise.

More important than any of this is the fact that an actual, one-in-a-million human being did die, and we must do everything in our power to write a last-act Reveal.

Not everyone loves history; the eighteenth century Enlightenment tried to break free from it. As Voltaire, an Enlightenment philosophe once said in his satirical story L’Ingenu, “history is but a chronicle of crime and misery. The host of innocent and peaceloving people always disappears from view in this vast theatre, while the chief actors are nothing but evil and ambitious men. There seems to be no pleasure in History any more than in Tragedy, which languishes unless it is enlivened by passion, crime, and great misfortune. Clio as well as Melpomene must be armed with a dagger.”

The Enlightenment’s willful forgetting of history and tradition led to changes, of course, that were even more bloody and tragic than anything that Voltaire could imagine. Thus, histories, like memories, are necessary evils to combat the much greater evils that are behind the crime and misery of life. So, thank you, Diane Durham, for writing down that conflicting “memory” from a half-naked “witness.”

How many more are there on alt.com?