Religion as evidence

[Lupu, Ira (Chip)]

Eugene's interesting questions about religion as evidence must be
viewed in light of the Supreme Court's opinion in Dawson v. Delaware,
503 U.S. 159 (1992) (First Amendment bars introduction of evidence
that criminal defendant was a member of the Aryan Brotherhood,
stipulated to be a white racist gang,  at the capital sentencing
phase of a murder case).  The Dawson opinion emphasizes that this
evidence was not tied to the crime itself (murder of a white man),
could show no more than Dawson's abstract beliefs, and would strongly
tend to prejudice him in the eyes of the jury.  Mrs. Smythe's case
can be distinguished from Dawson (her affiliation bears on the wrong
with which she is charged,  this is an ALJ not a
jury, her affiliation is not presumptively reprehensible in the way
Dawson's was, her life is not at stake the way his was), but Dawson
reminds us that First Amendment considerations are alive and well on
evidentiary questions such as these.


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu