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 ...
Besides, Dershowitz wants her to die.
The reason Dershowitz is claiming this isn't hearsay if because Michael isn't testifying as to the truthfullness of Terri's supposed statment. He's only saying it happened. For example, if you hear someone say, "Once I kill my wife, I'll inherit millions," its not hearsay, assuming you actually heard it. Michael claims Terri said these things about not wanting to live that way - he's not testifying that she actually meant it. The truthfullness of Terri's statements are not at issue.
At least, that's how Dershowitz is presenting it. I'm not familiar with Florida law.
Well, nobody is "killing a disabled person"...so that brings us to the flip-side question for you:
And why are "no witnesses" sufficient (to many people, at least) to deny someone of her rights?
Our rights are as important--more important--as our lives. Many Americans have sacrificed the latter for the former. One of those rights is the right to live or die, as an individual chooses...just as one is to bear arms or not bear arms, as one chooses, to speak out or not speak out, as one chooses.
Virtually every inadmissible oral hearsay statement is witnessed (heard).
Witnessing a statement doesn't make it non-hearsay.
Hearsay statements cannot be used to prove the truth of the matter stated.
"I want to die" can't be used to prove she wants to die.
So then you are saying that it was admitted as credible because no one else gave testimony to the contrary?
http://merriam-webster.com/cgi-bin/dictionary
Main Entry: hearsay evidence
Function: noun
: evidence based not on a witness's personal knowledge but on another's statement not made under oath
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Sounds like tortuous BS jargon to me.
If the issue is whether Terri can talk or not, then Michael can testify that he heard her talk, and that is not hearsay, because Michael is a witness to the fact that she talked. If the issue is, however, whether she wanted to be killed, then a statement by the husband that he heard her say that she wanted to be killed is an out of court statement of fact by a witness (Terri) offered to prove the truth of the matter stated, namely that she wanted to be killed. As such, it is hearsay.
It's the same as if he testified that "Terri told me she was speeding when she got that ticket". Either one is hearsay. The only way it's not hearsay is if it's considered a "statement by a party". which is always admissible in civil cases, because a party can defend himself in court. Except in Terri's case, since she can't talk.
How about legalized hearsay?
"Verbal act" evidence has been defined as:
A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it.
Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.11[3] (Joseph McLaughlin, ed. Matthew Bender 2d ed.2000); see also Charles W. Ehrhardt, Florida Evidence § 801.6 (2000 ed.). For utterances to be admissible as verbal acts, (1) the conduct to be characterized by the words must be independently material to the issue; (2) the conduct must be equivocal; (3) the words must aid in giving legal significance to the conduct; and (4) the words must accompany the conduct. See 6 Wigmore, Evidence §1772 (Chadbourn rev. ed.1976).
Banks v. State, 790 So. 2d 1094, 1097-98 (Fla.2001).
LOL, I'm not sure if this definition clarifies the issue or clouds it even more.
And the judge discounted that testimony because he just knew Miss Quinlan died in 1976 which was before the testified discussion. And when this solon learned last week that well she didn't die until after the discussion, he just said "sorry, no big deal."
As far as I am concerned its hearsay. The only question is if it fits into an excepion to the hearsay rule.
Ah, but Michael and his lawyer are MUCH TRICKIER than that, and you don't think they figured that out?
Here's what Michael testified: he and Terri were watching a movie, and she said that she wouldn't want to go through what the character in the movie went through.
So it was not a direct assertion of her wishes -- it was an indirect reflection of her state-of-mind based on her experience of watching the movie.
Providing just enough indirection to avoid the heresay objection -- and just enough proof to provide idiot Judge Greer to reach the conclusion he did.
An artful dodge, if I must say so, but not so diffucult for a psychopathological husband.
If the law on even hearsay is this clouded, it's no wonder criminals walk every day on technicalities.
Plenty of witnesses testified to the contrary, but Judge Greer didn't like what they had to say, so he disregarded them.
Let me try to clear this up . . . A statement is an act if a liberal wants it to be an act. Otherwise it's just a statement.
[Well, nobody is "killing a disabled person"...so that brings us to the flip-side question for you:
And why are "no witnesses" sufficient (to many people, at least) to deny someone of her rights?]
Are we all talking about the same case here? Terri IS diabled and Michael's statemtents were refuted by others. (I guess their testimony was hearsay, alledgedly)
Get in tha game, dude.
Good points. I thought the context of her alleged statement is that she wouldn't want to be kept alive if in the state of one of her grandparents, who I think was terminal and being kept alive by other means, not food and water.
I hadn't heard about the movie. I don't believe it. Especially when she told her friend that Karen Quinlan shouldn't have been allowed to die because "where there's life, there's hope". That statement is far more weighty and on point than some supposed movie.
Judge Greer and M. Shiavo have tag-teamed to kill Terri, that is clear.
Yeah, and I haven't found it.
Check out WL-law's posts on this thread.
" I guess that depends on what the definition of hearsay is."
Traditionally, hearsay is an out of court statement offered to prove the truth of the matter asserted. So if we are asserting that Terri would want to be unplugged, and someone says, "Well, I heard her say once that if she were in a coma, she would want to be "unplugged"", then that is a hearsay statement.
There are some exceptions to the hearsay rules (a "verbal act") being one of them, but I can't think of any that would readily apply to this situation...except maybe the one where the declarant is "unavailable."
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