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 ...
My point was that if it is hearsay in the 8th C. and not in the 11th, that is grounds to go to SCOTUS on diversity.
Hearsay is an out of court statement used for the truth of the matter asserted.
The alleged statement was made by her out of court and is being used in court for the truth of the assertion she wanted to die. Thus its hearsay.
It is not a verbal act. An example of a verbal act would be someone agreeing to the terms of a contract--i.e. accepting an offer. Or another example is a defamatory statement. The defamatory statement itself is the harmful (verbal) act.
Interesting.
It has to be contemplated under the FL evidence code not the Federal. HOWEVER, if there HAD been a denovo review there might have been an issue of using the Fed. Evidence code and not the FL evidence code.
But the Clinton Judge has pissed on the constitution and his job.
Hard to respect him or his office these days.
Well, nobody is "killing a disabled person"...
Of course they are. She isn't dying on her own. The status quo is her receiving sustenance. The change from the status quo is removing her sustenance thus bringing about her death. If I cover your nose and mouth and remove your oxegyn I will be killing you. There isn't any difference, it is an act of commission.
Well, too bad the Schindler's attorneys never asked the federal court to admit new evidence. Or even old evidence. Or any evidence at all.
It's a statement not for the truth (whether she meant it or not) but a statement that Michael Schiavo relied upon to make his decisions regarding her care. That's what he testified to, that's not hearsay. There was other testimony on the subject that impacted the judges decision
Or, better yet, what if someone testified that Terri had said she would KILL her husband if he cheated on her? Would that be an example of her wishes that absolutely MUST be carried out?
her mouth is not being covered.
We're ALL wondering about that one. I'm not a lawyer, so I can't force my mind around all those illogical legal manipulations, but can't Michael's testimony in the malpractice case be used against him, in a wrongful death case or something, to get that award money refunded to the doctors he sued or turned over to Terri's parents?
A husband caught arranging for the murder of his wife often is convicted because he requested someone to kill her for money. Testimony is given to the effect that the husband approached someone (often in a bar) and asked someone to kill his wife for money. Often this is the basis for conviction. In this case, the standard for the state to prevail is beyond a reasonable doubt which is much higher than in any of the Shiavo cases.
Therefore, right, wrong or indifferent Michael's testimony is not hearsay. I never could understand why people said it was. Whether or not Michael's testimony is perjury is a completely different issue.
Hitler heard about Dershowitz like Jews asking to be gassed because they were subhuman... was that hearsay?
Hearsay or a witness to a statement cannot be the mean to destroy hard evidence in the life of Terri Schiavo and other hard evidences of destruction and cover up of crime scenes.
All rights are derived from our Creator, and this one is clearly codified in Florida law.
What the heck are you talking about? You lost me again. Who am I "forcing to speak out with their views"?
You obviously don't carry through your expositions to their logical conclusions. I'll be less rigorous, in an attempt to make it simpler. (And I apologize for my syntax being so rotten today--I have a migraine that won't quit and can't even sleep.) Go back to the parts you chopped out of my earlier message, and you'll see that I am referring to all rights having an included right to "the opposite." Right to Keep and Bear Arms includes a right to DISCARD and NOT BEAR arms. Freedom of Speech includes a right NOT to be forced to expound your beliefs. Right to Life includes a Right to Die. It's part of the foundation of the FREEDOM upon which our country is built.
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.
She received medical treatment based on the say-so of other people. She never asked for it. She never wrote about it. But I don't hear you complaining about that.
Decisions are often made without the input of the person in the bed...it has to be done. Several courts have decided on this case. The rule of law was followed. The court made a decision based on the evidence, and even though many FReepers like to distort that evidence (not implying you), the court had to rely on the facts.
Mr. Schiavo believed Mrs. Schiavo would have wanted the experimental electrode therapy, and tried it. But I believe he eventually believed the evidence, which shows that Mrs. Schiavo's higher brain functions are absent because the tissue is not there (look at the CT scan). And he made decisions based on what he thought at the time she'd have wanted. Finally, the court was asked to do so, instead, and also found that this is the path for her.
I agree that the award should have been far more restrictive. Let's hope lessons are learned for the future.
Who says she could?!?
Indeed. It's real comforting to know that words I repeated several times during the pain of childbirth ("I'm dying!") and misremembered by my husband ("I want to die!"), could be used to legally kill me in Greer's court. The biggest problem with admitting this type of "evidence" as credible testimony is that memory is not accurate. Even if Michael were telling the truth about what he believed was said, he could, for all we know, be repeating a fragment he remembers from a lucid dream that he believes really happened. Without collaborative evidence, it means nothing! And getting his brother to repeat the same thing under oath is not credible evidence.
If Felos is an agent of something, it isn't God.
Well, certainly not the God of the Heavens!
I don't believe the Creator endowed us with the "right not to have a tube", sorry. I can envision circumstances where most would agree that tube-feeding would do more harm than good (i.e. those involving terminal cancer patients in great pain with 2 weeks to live), but that doesn't make tube-withdrawal a "right", and in any event, this is not one of them.
As for Florida law, Florida law is one of the objects of my criticism. Generally, when I complain about X and X is contemplated and provided for under Florida, or any other, law then please feel free to consider that law itself as a target of my ire. All right?
If the law said that whites had the "right" to kill blacks on sight I would no more believe in such a "right" than I believe in the "right to die".
you'll see that I am referring to all rights having an included right to "the opposite." Right to Keep and Bear Arms includes a right to DISCARD and NOT BEAR arms. Freedom of Speech includes a right NOT to be forced to expound your beliefs. Right to Life includes a Right to Die.
One of these things is not like the other. To not-bear arms, all you do is... nothing. To not-speak, all you do is... nothing.
To not-live, for a typical person, requires an active act. So collapses the parallel structure by which you seem to have convinced yourself of the "right to die". Sorry.
And in this case, it's an active act that is not even self-inflicted. Yet you maintain it still falls under the rubric of "right to die". If you took what you were saying seriously, you would be forced to conclude that bridge-jumpers ought never to be rescued or restrained. That's a violation of their "rights"! That people who take sleeping pill overdoses ought never have their stomach pumped. They wanted to die so we must let them! That if a depressed teenager came up to you and told you he wanted to die, and he was incapable of making himself dead for whatever reason, you must kill him. Not to do so would be to violate his "right" to die!
Either you take what you are saying seriously and you believe all that - in which case I simply disagree with you - or you do not take what you are saying seriously. One or the other. I don't care which.
It's part of the foundation of the FREEDOM upon which our country is built.
No, I don't believe a "right to die" is "part of the foundation of the FREEDOM upon which our country is built", I don't believe you can support this assertion (cite Jefferson or Madison please? somebody?), and I'm not impressed by your putting the word FREEDOM in capital letters.
She received medical treatment based on the say-so of other people. She never asked for it.
The same is true of anyone and everyone who falls into some emergency trauma leaving them, even temporarily, incapacitated. Fall down and hit your head and you'll receive medical treatment without asking for it. That is the moral thing to do. To wait for you to "ask" would be immoral.
Infants, too, are given medical treatment for the first several years of their life without them having communicated anything concrete to anyone in any way. A violation of their "rights"?
She never asked for it. She never wrote about it. But I don't hear you complaining about that.
Indeed you don't. Why would I "complain" about providing sustenance to someone who is incapacitated and cannot do so on her own? It is the moral thing to do and not to do so is monstrous.
Decisions are often made without the input of the person in the bed
I don't doubt that. That does not require me to approve.
Several courts have decided on this case. The rule of law was followed.
Um, it seems clear that "several" courts made decisions on this case. A multiplicity of courts making an immoral decision does not confer morality onto that decision.
I am not in a position to dispute that the "rule of law" was followed. As far as I know, it was. I am saying that the law is an ass.
But I believe he eventually believed the evidence, which shows that Mrs. Schiavo's higher brain functions are absent because the tissue is not there (look at the CT scan). And he made decisions based on what he thought at the time she'd have wanted.
I have no solid basis for doubting Mr. Schiavo's sincerity. Nevertheless by your own words at best we have a situation where Mrs. Schiavo is being provided with what some other person "thought she'd have wanted" - not with what she wants, which cannot be ascertained.
Therefore, to paint this as nothing but providing her with her "right to die" (even if there is such a right, which I deny), is dishonest. She has, in actuality, not asked to be killed. The most one can say - assuming that everything Mr. Schiavo has said is the truth - is that more than a decade ago in a conversation she said words indicating that she would want to be killed in some hypothetical circumstance of vague description (which may not, in fact, match the circumstance she currently finds herself in). That does not mean that she wants to be killed right now. So claims that she is being given, or exercising, a "right" that she wants, lack solid basis. You simply don't know what you are pretending to know.
It is more accurate to state what is actually happening, as I already have: She is going to be killed on the say-so of other people.
.....because it will be expedient for the government bureaucrat of the future to terminate your life when you become a burden to the state in future rulings.
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