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. ....

[RGSpincich]

Dershowitz is a law professor at Harvard.

[truthseeker2]

Part of OJ's Dream Team??

[Dr. Frank fan]

Ok, he is an eyewitness to the statement so it's not "hearsay". Fair enough.

But you need two witnesses to prosecute for treason (a capital crime). Why is one witness good enough to kill a disabled person?

[kingattax]

dershowitz is an annoying p*ssant

[TheDon]

Hearsay

1. Unverified information heard or received from another; rumor.

2. Law. Evidence based on the reports of others rather than the personal knowledge of a witness and therefore generally not admissible as testimony.

I guess that depends on what the definition of hearsay is.

[WL-law]

No, it's not hearsay, but it's from an impeachable and interest-conflicted witness.

[DaughterOfAnIwoJimaVet]

I think three people - Michael Schiavo, his brother, and his brother's wife - have testified to having heard Terri say she would not want to be kept alive by artificial means.

That's a little bit too convenient for my taste, but, the point is that there were three people who stipulated to that, and it was declared to be a "finding of fact" in the case, which is apparently very difficult to overturn.

[cripplecreek]

Well when the almighty Dershowitz decides to come down off mount Olympus he might be worth listening to. Until then he's just spouting the same ole one sided garbage as he always spouts.


You should ask yourself why he isn't required to tell the truth. It lies in an 1895 supreme court ruling that keeps him and others like him powerful.

ttp://www.caught.net/juror.htm

[ex 98C MI Dude]

Funny, but didn't the Baron Lord High Executioner and Judge Greer say that the testimony of her friends was heresay, not a verbal act?

I would not allow Dershowitz to defend my dog if it was accused of plagiarizing the complete works of Shakespeare, let alone take his word on an issue of life or death.

[ambrose]

there are about 50 zillion different exceptions to the hearsay rule. Maybe someone else can explain.. I've gotta go.

[conservative cat]

Someone on FR (I wish I remembered who so I could credit) asked what if Terri ever told someone she would divorce her husband if he cheated on her? Would that be admitted in court as evidence of her wishes??

[conservativebabe]

So if a husband says monkeys flew out of his wife's butt, it's a fact because he was a witness to it.

[the OlLine Rebel]

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." Funny how he says it's not mere hearsay then uses the word "allegedly".

[concerned about politics]

But Florida has said essentially that a statement made to a spouse and repeated in court may be enough.

I'll bet Florida would say just the opposite if the parents said they wanted her dead and the husband wanted her to live. When it comes to pro-death, who ever chooses death wins.
Florida has a lot of old people. If they were kept alive "too long", it would suck up monies that could be used for "the great collective" (The Democrat base. They want people to buy them stuff, dammit!)

[tomahawk]

Food and water are not ordinarily considered extraordinary meeans, like respirators, heart lung machines, kidney dialysis, etc.

Hearsay is an out of court statement offered in court for the truth of the matter asserted. Every hearsay statement is heard by a witness. The fact that a person witnesses someone else's alleged statement does not transform it into non-hearsay.

The alleged statement that "I don't want to live", if offered by someone other than the declarant, to prove the person did not want to live is classic hearsay.

The verbal act doctrine I believe applies if a person has to say something to accomplish an act. I don't see that applying in the context off an alleged off hand remark.

I am not convinced this is not hearsay, without being to research it further.

[blueriver]

Sounds like anything that MS says is a fact. He must be walking on water. I guess he and his brother were not capable of lying - oh no that just would not be possible.

[the OlLine Rebel]

Leave it to the "law" to parse a word to death.

I'll take door #1, please....

[tomahawk]

"The hearsay rule excludes out-of-court assertions used to prove the truth of the facts asserted in them. Verbal acts, however, are not hearsay because they are not assertions and not adduced to prove the truth of the matter." Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992).

It appears to me that the alleged statement is hearsay because it is being used to prove that she did not want to live.

[WL-law]

So if a husband says monkeys flew out of his wife's butt, it's a fact because he was a witness to it.

It's not a "fact" in the sense that's its truth is beyond question.

It's admissible, if it's relevant, and not barred by the rules of evidence.

It's not due any particular weight by itself, i.e., the "fact" can be contradicted by other facts in evidence, and the witness's truthfulness, his ability to observe, or to recall, all are subject to impeachment on cross-examination.

[The Ghost of FReepers Past]

But he has motive to lie. What if the issue were about property that the disabled or a deceased supposedly wanted to gift to a person, and that happens to be THE person sharing the testimony? I just think that's weak.