What do you think of Dershowitz's comment?
Law Professor says Schiavo's Testimony is NOT "hearsay"
http://www.freerepublic.com/focus/f-news/1370795/posts
"But Florida has said essentially that a statement made to a spouse and repeated in court may be enough. By the way, I want to correct one thing. I don‘t want to be technical about it. But the statement is not hearsay. Let me tell you why. It‘s called in law a verbal act. That is, it is a statement allegedly made by Terri Schiavo simply testified to by her husband. It‘s not testimonial. It is a statement."
Yes, I argued that a couple of weeks ago here but gave up because it is difficult for non-lawyers to grasp (after 10 years of Law and Order). I think there is a very good argument that Terri's statements were not offered for the truth of the matter stated (which is necessary for an out-of-court statement to technically be 'hearsay') but rather merely for her act of saying them. Be that as it may, they were clearly admissible under either theory.
Ah, so now the State of Florida is saying that what a spouse says an incapacitated other spouse said is infallible? Just by virtue of uttering the statement it becomes the truth and a fact of law?
I know you didn't ask me this question, but I'll weigh in anyway-- it is complete and utter bu!!$h!t!!!!!!
I wish I could remember the name of the Freeper who was making this argument before. I could barely respond, I was so incredulous!
xs: Here we go again!
allegedly!!!!!!!! That's hearsay!!!!!!!
I guess the question would be whether the trial court was required to find by clear and convincing evidence that Terri had made the statement, or whehter it was required to find by clear and convincing evidence that Terri's wishes were as stated. For purposes of establishing the former, the relative's statements would not be hearsay but for purposes of establishing the latter they would be.
If the requirement is merely to show that the person made the statement, without having to show that it represented an accurate and uncontradicted description of their wishes, all sorts of absurdities arise. For example, a person who verbally expressed a desire not to be fed and then the next day recanted it could truthfully be said to have expressed a desire not to be fed. Indeed, nothing they could ever do would alter the fact that, at one time, they had said they didn't want to be fed. In such case, however, I would think such a statement should not be taken to accurately reflect the person's current wishes.