Law Professor says Schiavo's Testimony is NOT "hearsay"

Transcript Scarborough Country ^ | 3/25/2005 | quote

[RGSpincich]

excerpt

Dershowitz...

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.

And he is not describing something that is hearsay. He is an eyewitness to that statement. ....

[LibFreeOrDie]

Dershowitz was Claus von Bulow's lawyer.

(Sunny von Bulow is still alive - in coma for 20 years.)

[george wythe]

The witness presented by the Schindlers changed her recollection several times. For instance, her testimony during deposition was different from her testimony at the first trial.

Therefore, her testimony was found less than truthful, and the real date of Quindlan's death did not change the fact that the witness was not credible. Her testimony simply did not make sense even when the corrected date.

[AaronInCarolina]

Fl. law may allow hearsay, but it is still hearsay.

It certainly is not "Clear and Convincing" evidence, which to me is the big flaw in the FL law. "Clear and Convincing" is so vague, that judges who are partial can exploit that to no end.

BTW, as I understand it (someone correct me if I'm wrong) Terri's Law sought to add the requirement of a written directive, at least in the case of removal of nutrition and hydration, thus closing that vagueness loophole. State courts ruled that the FL legislatures "motivation" for changing the law was to circumvent Judge Greer's ruling on the original form of the law. Basically they said to the FL legislature "You can create the law, but we're not going to let you change it". Disgusting overreach of power.

[libravoter]

No, that would be double hearsay, hearsay within hearsay. The first example--Jane told me she was speeding--is hearsay.

It depends on the purpose of the testimony. If John Doe testifies Jane said she was speeding, it is direct testimony to what Jane told John. It is hearsay evidence to Jane actually speeding.

Florida law allows direct testimony to the patient's EXPRESSED wishes. If Michael Schiavo was testifying to what Terri told Michael, it is direct testimony to their conversation.

I am not saying Michael is testifying truthfully, just arguing what type of testimony he gave.

[libravoter]

It certainly is not "Clear and Convincing" evidence, which to me is the big flaw in the FL law. "Clear and Convincing" is so vague, that judges who are partial can exploit that to no end.

THAT is true.

[george wythe]

It seems that you don't like Felos, but Felos has consistantly outlawyered the Schindlers' attorneys.

Just yesterday, the DCF attorneys did not realize that Jeb had the legal opportunity to remove Terri Schiavo from the hospice until Felos filed a motion to vacate the original automatic stay.

The Schindlers have been let down over and over again by their lawyers.

[PatrickHenry]

Here's a link to the Florida Evidence Code. Section 90.801 defines hearsay. 90.802 says that hearsay is inadmissable. But there is a long list of excepctions in 90.803. Subsection (4) of that says:

(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.--Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

Under that exception, Michael, as her husband, could present her out-of-court statements while she is unable to communicate, regarding her treatment (whatever treatment may mean here).

I'm not sure if that's what allows Michael's testimony about her intentions. I'd need to read some of the numerous appellate decisions. Anyway, just because a statement is generally hearsay, it may nevertheless be admissable.

[nicmarlo]

It seems that you don't like Felos, but Felos has consistantly outlawyered the Schindlers' attorneys.

You think that would make me "like" him, because he's MASTERED CRAFTINESS?

He's despicable.

[my_pointy_head_is_sharp]

Here's an excerpt of a transcript from the 3/23 Scarborough show:

ALAN DERSHOWITZ, AUTHOR, “RIGHTS FROM WRONGS”: Well, the legal situation is, whether you approve of it or not that, the court has ruled that this is the young woman’s choice, that she has made a decision to die and they are simply enforcing her will.

My own view, if I were writing the Florida law, would be very different. I would say that the statement of one person reported by one other person, not in writing...

SCARBOROUGH: Hearsay.

DERSHOWITZ: ... should not be enough to overcome the presumption of life, that you have plenty of time, all of eternity to be dead, and only a short time to live.

And I would agree with President Bush that you should always err on the side of life. I wish he took the same view in capital punishment cases when he had been governor of Florida (sic), but not everybody is consistent.

[over3Owithabrain]

Felos is a seasoned pro-death lawyer whose whole life was leading up to this case. He got all his doctors, lawyers, and judges lined up for this. The Schindlers are playing in the bigs with AA representation.

[my_pointy_head_is_sharp]

Dershowitz doesn't want Terri to die. Here's an excerpt of a transcript from the 3/23 Scarborough show:

ALAN DERSHOWITZ, AUTHOR, “RIGHTS FROM WRONGS”: Well, the legal situation is, whether you approve of it or not that, the court has ruled that this is the young woman’s choice, that she has made a decision to die and they are simply enforcing her will.

My own view, if I were writing the Florida law, would be very different. I would say that the statement of one person reported by one other person, not in writing...

SCARBOROUGH: Hearsay.

DERSHOWITZ: ... should not be enough to overcome the presumption of life, that you have plenty of time, all of eternity to be dead, and only a short time to live.

And I would agree with President Bush that you should always err on the side of life. I wish he took the same view in capital punishment cases when he had been governor of Florida (sic), but not everybody is consistent.

[Defiant]

It depends on the purpose of the testimony. If John Doe testifies Jane said she was speeding, it is direct testimony to what Jane told John. It is hearsay evidence to Jane actually speeding.

That much is true, I agree with you. However, here the state needs to prove that Jane is speeding (Terri wanted to be killed). The issue is not Michael's motive, but Terri's wishes.

[Altamira]

Wow! First Ralph Nader, and now Alan Dershowitz! It's Good Friday; must be a miracle!

[Atlas Sneezed]

No, it's not hearsay.

---

Michael testifying as to what she said seems to be hearsay in my book.

Are you taking the position that the issue is not the truth of her supposed statement expressing a desire to be starved if brain damaged, but simply with the fact of what she said?

I guess I can understand that, but on a fundamental level, this is still about hearsay, in that we must take the word of a third party as to what another said.

This is moral hearsay, not evidence admissability hearsay.

If it were true hearsay, he wouldn't even be allowed to testify about what she said, let alone have her get a death sentence based on it.

[planekT]

...The judge largely dismissed the testimony of Michael regarding Terri's alledged wishes. The appointed Guardian Ad Litem (who at that time was not Judge Greer, but a guy named Pearse) informed the judge that Michael's testimony was conflicted and did not "rise to the level of Clear and Convincing". The judge also ruled out Mrs. Schindler and Diane Meyer's testimony because the judge chose to not believe the time frame that the statments were made. That left just Scott and Joan Schiavo, who the judge said had no conflicts and no reason to disbelieve their stories. I think that he was wrong in that regard. Everything hinged on the testimony of just Scott and Joan....

This is incredible. The judge threw out testimony that should have been included but for his mistake, and then allows the person whose testimony was conflicted and largely dismissed as you say, to make the ultimate choice for Terri.

I can't believe it. She's being put to death on the word of two in-laws, and the word of her mother and the other lady counted for nothing, though it should have.

[libravoter]

here the state needs to prove that Jane is speeding (Terri wanted to be killed). The issue is not Michael's motive, but Terri's wishes.

Yes. And the issue there is the quantity and quality of the testimony giving. If her parents and siblings and friends all testified she had said what Michael testified she said, we wouldn't be needing to debate what kind of testimony it was.

[supercat]

Actually, I think most of us here know full Michael's statements aren't "hearsay". That would mean he heard them and respoke them. What they actually are is "make-it-up-say". But in Greer's courtroom, that's good as gold.

[RGSpincich]

Besides, Dershowitz wants her to die.

Read the transcript again. Dershowitz's position may surprise you.

[nicmarlo]

What they actually are is "make-it-up-say". But in Greer's courtroom, that's good as gold.

Yep.

[The Ghost of FReepers Past]

You're right. Thanks for setting me straight on that.