After the hearsay meeting, the Commission wanted another meeting to go over questions on hearsay as well as presumptions. This meeting was perhaps the most challenging. While the hearsay rules are ones I feel very comfortable with, presumptions are a bit more challenging especially when it comes to explaining the underlying rationales.
In order to prepare, I truly went back to the basics of presumptions. I had to parse through the subtle differences between the rebuttable presumptions. I had to ensure that I knew which presumptions were shifting what burdens. I also had to ensure that I could describe the differences between the burdens.
In preparation, I also compiled examples of presumptions from the states. While there are many presumptions that vary from state to state and case to case, it was helpful to have examples to give to the Commission as examples for them to consider as they move forward.
The most surprising part of teaching presumptions to the Commission was the collateral benefits it had on my other work. I not only work for the Supreme Judicial Commission of Tibet, but I also am working for the Public Defender’s Office in Alexandria. The refresh I had on presumptions helped me to better remember the burdens and how they shift as I worked with the public defenders on affirmative defenses.
After we covered their questions on presumptions and any lingering questions they had on hearsay, they asked for my opinion on an unrelated issue they had running up their court system. They had a case during the COVID pandemic that was decided without any hearing. No witnesses were called and it was based solely on the written filings. The question at the higher courts was then whether that procedure violated fundamental fairness.
It was interesting because my perspective was from a well-established legal system that will dismiss cases frequently only on filings and normally has lawyers involved in the cases whereas the Tibetan legal system is still getting re-established. My inclination was that if both parties agreed to the disposition and felt that they were able to convey their arguments in writing, perhaps because it was an issue where witness credibility was not salient, then it was likely fine given the extenuating circumstances of a pandemic. Once I heard their concerns about the fact that attorneys are not often involved so the pleadings are not as complete and it leads to fundamental unfairness, I saw their concerns. This discussion was incredibly interesting and helped me to gain better insight into the challenges that come with setting up a legal system. I also found it enjoyable for us to discuss, as colleagues, interesting legal issues, even if it made all of us late for our next engagements.