Posted on 03/25/2005 12:46:00 PM PST by 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. ....
(Excerpt) Read more at msnbc.msn.com ...
Thank you for the clarification.
Mrs. Schindler also had problems. Mrs. Schindler testified that when Terri was 17 Terri strongly objected to Quinlans father trying to end life support for Karen. Problem being that those events occurred when Terri was only 11 or 12. Mrs. Schindler eventually changed her testimony, too.
I never liked him either but his position surprised me on the Second Amendment. He believes correctly it refers to an individual right to bear arms not a militia.
Yeah it looks like Scarborough interjected a word and Dershowitz either didn't hear it or forgot about it. He made a point to correct Scarborough the following night.
KAQ continued living even after her life support was discontinued, and when she was alive so were the jokes. I recall having heard such jokes around the time Terri supposedly reacted adversely to them.
Silly. If it were in writing he could be an eyewitness. He claims to be an earwitness. The statement that he is an eyewitness or an earwitness is itself hearsay.
Yes I'm aware of the joke from the friend and the friend's testimony. I'm talking about Mrs. Schindler's testimony. She referred to the time period when Quinlan was still hooked up and the father was going through the courts.
There's one thing we do know is true
Terri did not get to testify for herself in front of Greer.
Michael Schiavo was testifying to what he says Terri told him
Well phrased!
Well, you're the one tying in life/death. The right of Mrs. Schiavo not to have a tube is the right that's relevant.
But you have piqued my interest by your editing of my comments.
Do you think that we must force everyone to speak out with their views? Should we arrest those who chose not to carry a gun? It's a huge change to the foundations of our system to say that there's no corresponding right to NOT exercise a right. What right do YOU have to take the rights of others?
It's not even Mr. Schiavo's decision. The courts made a legal decision as to how Mrs. Schiavo would have wanted her rights exercised, since she didn't leave anything written.
Exactly. KAQ lived on after the debate. Therefore, Terri Schindler could not have been "17" during the debate.
I know that the Schindlers feel strongly about this, and I have sympathy for them losing their daughter and having trouble facing the fact that her higher brain functions are entirely gone, but that doesn't give them the right to make things up.
Among his doctors was seasoned pro-death Doctor Cranford, who not only said Terri was PVS, but has also publicly stated that PVS patients have no constitutional rights.
How odd that Michael is saying he is defending Terri's rights, when, at the same time, the very doctor whose testimony Michael's case depends on says Terri has no rights.
"Tying in" life/death? I'm "tying it in"? It's an intrinsic part of this conversation. A woman who's alive will soon be dead by court order. So this is about life/death. I don't even know what else it's about!
The right of Mrs. Schiavo not to have a tube is the right that's relevant.
From whence is this almighty "right not to have a tube" derived?
And even if she possesses such a "right", what on earth gives you the idea that she wishes to exercise it? What makes you think she doesn't want a "tube", i.e. sustenance?
Do you think that we must force everyone to speak out with their views? Should we arrest those who chose not to carry a gun?
What the heck are you talking about? You lost me again. Who am I "forcing to speak out with their views"? If I had my way, Mrs. Schiavo would be left alive. Not "forced to speak out".
It's a huge change to the foundations of our system to say that there's no corresponding right to NOT exercise a right.
This is all moot.
She hasn't "exercised" or "not exercised" anything in the first place. She is going to be killed on the say-so of other people.
Seriously, what are you talking about?
What right do YOU have to take the rights of others?
None.
That is why I do not advocate killing her. I advocate leaving her alive because she has the right to be left alive.
The courts made a legal decision as to how Mrs. Schiavo would have wanted her rights exercised, since she didn't leave anything written.
Indeed they did and that is part of what I object to. Was that not clear?
The other day, Felos thanked the ACLU and others for helping with the case.
He might be grateful to them, but he may also be trying to spread around the guilt -- ala "Murder on the Orient Express."
DNRs should be written down. Period, end of sentence.
This 'legal guardian' verbal-stuff is pure bull cr@p. Especially when it comes to greedy relatives- the LAST group you should trust.
You CAN'T take someone's HOUSE (property) without a WRITTEN contract (a title)!!! Why is one's LIFE somehow less important, than a piece of real estate?
I'm going to try that sometime, "He SAID I could have that residence & lot! Sure - he's gone / or disabled and cannot speak now, but - Hey, it was a VERBAL agreement!, blah-blah."
Respectfully I disagree:
Every evidence code has nuances that are important.
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0090/SEC801.HTM&Title=->2004->Ch0090->Section%20801#0090.801
90.803 Hearsay exceptions; availability of declarant immaterial.--The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) SPONTANEOUS STATEMENT.--A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE.--A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.--
(a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.
2. A statement made under circumstances that indicate its lack of trustworthiness.
(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.
(5) RECORDED RECOLLECTION.--A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.--
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(b) Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.
(c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party's failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.
=snip=
Ain't he though?
He is mistaken. It is heresay. Was there an objection to the statement made in the transcript? How did Felos get it in over an objection? Was there an objection?
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