Posted on 03/29/2005 8:58:34 AM PST by Long Cut
Hi guys. Just a little something to consider, with regards to "Hearsay"...
I may be wrong, but I dont' think it was "Hearsay" when Michael Schiavo said "She said...". This is because he was an actual witness. I believe it would be "Hearsay" if he had said "Well, Fred told me she said..."
Or is that wrong?
:)
Do you think it's because he is boring? JMHO
Thanks :)
I believe that would be double hearsay.
Anytime.
You've done such a fabulous job, Trinity and I can't thank you enough.
Not Double Secret Hearsay?
LOL re #6.
- a GAL or attorney for Terri was not appointed. Sorry, that's just false. Three were appointed and executed their duties.
- Judge Greer served as a health-care surrogate. Sorry, that is required by Florida statutory law in the circumstances presented.
- Judge Greer made decisions that Terri is PVS without personally seeing Terri. Sorry, the Judge is not a doctor. If doctors are telling him she is PVS, how is he supposed to challenge that diagnosis by seeing Terri? In addition, Judges make all kinds of decisions without eyeballing the subject of the decision. If you create a right out of this, you will change the entire face of jurisprudence in this country. For example, I work in the construction field. You know how often I have judges make decisions without actually eyeballing the building in question?
- Terri wasn't given "notice" of proceedings. I'm guessing you aren't really hanging your hat on this one.
Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind. You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.
Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.
In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:
A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:
1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.
The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:
We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.
Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.
(all emphasis added).
I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.
http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111167384435979940
I'd only ask that all parties remember what started this thread, and respect that.
Don't acknowledge the flamers, and DO debate civilly.
Adios, for now.
Excellent post, lugsoul.
Ah, yes, another grunt and splash from that great oracle of truth: WorldNutDaily.
Anyone else see the latest Weekly World News cover story that the CIA developed a talking cat and is using it as a spy?
Those that dismiss Michael's testimony as mere hearsay or, even better yet, say that Judge Greer shouldn't have permitted it into evidence, don't know what they're talking about.
Exactly. Thank you.
It became a habit, instead of listening to a music station, or a tape.
It's becoming most painful. What once was entertainment spiced with some good thought has become meaningless banter and over self-aggrandizement.
Time for a CD player for the garage. ;)
You can choose to see it that way, I suppose, but the court is supposed to give deference to the expressed intent of Congress, and the Colloquoy they quoted, Choosing Levin, ignores Senator Frists words about what is intended by the legislation.
Intent. In Plain English. Ignored.
They were actively (like Whittemore) looking for a loophole.
That is Activism.
Without a living will, we can't know.
If we can't know, we shouldn't be able to kill.
I heard about that and am pretty sure it's the cat next door, because I haven't seen her around lately. She's very clever.
Thanks :)
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