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. ....

[rockrr]

We'll have to see what Judge Judy has to say.....

[middie]

There are 19 exceptions to the hearsay rule- - this declaration is one of them.

[brytlea]

But it seems to me that the precident being set is that someone (anyone?) can testify in court that you or I said something (we want to die for instance) and it is taken as a fact. Does that not concern?
susie

[the OlLine Rebel]

See the 2 definitions above. I think I can summarize.


In English, "hearsay" basically means any recounting of some verbalization, by some party, made by a 2nd party or worse. Schiavo and the other Schiavos, in English, made hearsay.


In Lawese, "hearsay" means any recounting of a verbalization, by some party, made by a *3rd* party or worse (e.g., "he said she said"). Schiavo and the other Schiavos, in Lawese, did NOT make hearsay. Cuz they said they heard it from Terri herself, so that makes them 2nd parties, so they're OK, get it?

[QQQQQ]

The rest of Dershowitz's statement: "And he is not describing something that is hearsay. He is an eyewitness to that statement. Now, I still think it‘s a thin read personally on which to take a life in the face of what ought to be a very, very strong presumption of life, instead of death. But the two issues here are, one, is Florida right or wrong? I think it‘s wrong. Second, does it have the power under federalism to make that mistake, and do the federal courts have the right to intervene?" He changed his mind since a few days ago, when I saw him on FoxNews, at that time he said there is more than reasonable doubt about Michael's statement about what his wife said. Also -- why isn't anyone asking about the FACT, that when MS was suing the doctors for malpractice, he was doing it on the basis that Terri will live out her full life expectancy, and AFTER he got the money, he suddenly "remembered" that Terri "didn't want to live this way".

[ex 98C MI Dude]

Both Mike Schiavo's brother and his brother's wife said they heard these statements, corroborating his testimony. Since Greer recognized that Mikey might be construed as biased (Like the brother and s-i-l wouldn't be?!), he relied soley on the brother's and sister-in-law's statements.

There were, however, some of Terri's friends and family who said that Terri had commented differently about the Karen Ann Quinlan case in 1982. Greer threw their testimony out as 'not credible", mistakenly believing that Quinlan was dead in 1982 (she actually died in 1985), and, in the courtroom, stated she died in 1976. He then reasoned that because the only year Terri would have been aware of that case would have been 1976, the year he thought Quinlan died, she would have been too young (12 years of age) to form an adult opinion. (I note here that the courts have held that 12 year old girls are adult enough to get an abortion without parental notification.) He said that since she would have been too young to form that opinion, that testimony would not be heard. And since there was no other testimony to the contrary, Terri would want to die in this case.

Bit of a massive flaw in that ruling, isn't there? And because that testimony wasn't heard, it was never reviewed by any other judge.

But due process was followed, right? The law is being followed, right?

[xsmommy]

well if verbal act is an exception, that doesn't negate that it is in FACT hearsay, just that it meets one of the enumerated exceptions. despite the fact that it came in, it is inaccurate to state that it is NOT hearsay because it meets the definition. it is apparently quite meaningful to those that support terminating terri to rehabilitate MS's testimony by being able to say it was NOT hearsay. this debate has come up on thread after thread.

[buck61]

he's worse than that

[WL-law]

For those who would like to see Dershowitz skewered: take a look at post #17, which I posted on a discussion earlier this week:
http://www.freerepublic.com/focus/f-news/1368423/posts

It's a long read, but a brilliant example of a non-lawyer/academician totally besting Dershowitz in a brilliant display of (a) preparation and (b) cross-examination skills.

[UnbelievingScumOnTheOtherSide]

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.

I understand exactly what you're saying. But I'll get even more anal and point out that that is law in the 8th Circuit but Terri Schiavo is in the jurisdiction of the 11th Circuit. Now if the outcome of this case actually hinges on the difference between the 8th and 11th Circuits maybe you can get SCOTUS to take it on diversity grounds.

[conservativebabe]

This whole thing stinks to high heaven. I think there is a lot of covering of backsides going on.

Am I correct that the Federal judges are reviewing only procedural things and not facts. In other words, no de novo or whatever, as Congress requeste?.

Hard to believe that blatant mistakes are just being overlooked.

[antiRepublicrat]

I would not allow Dershowitz to defend my dog if it was accused of plagiarizing the complete works of Shakespeare

Shakespeare is public domain. There would be no case.

[Diva Betsy Ross]

Dershowitz is a pinko.

[mandatum]

Good, point.
"Hearsay exceptions; availability of declarant immaterial: (3) Then existing mental, emotional or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)..."
This is from the Federal rules of Evidence.

[ex 98C MI Dude]

Precisely. The case would be a slam dunk and I still wouldn't let him near it.

[Havoc]

A guy gets busted for grand theft, walks into court and tells the judge, "but your honor, they said I could have the car."
The guy presents his mother who says, "Yep, I heard it too. He gave the car to my son."

The owner of the vehicle steps up and denies the car was gifted to the accused. Has a theft ocurred or was the car given away? Absent a signed title or bill of sale, this is a theft. Pretty clear when examples are drawn upon.

We've reached the point of absurdity - when Judges no longer know the law or enforce it. They rather enforce paragraphs, grammer, and ideology. The system has failed.

[antiRepublicrat]

I'll give you an example.

You are testifying in court in a corruption case. You say that the mayor told you that he was taking bribes for construction contracts.

Or, you are testifying that a friend told you that he heard the mayor say he was taking bribes.

The first equates to this case and is not hearsay. The second is definitely hearsay and would not be allowed.

[antiRepublicrat]

Absent a signed title or bill of sale, this is a theft.

Likely because the owner was there to contest the assertion that it was a gift. Terri cannot contest anything.

[ex 98C MI Dude]

The 2nd District Court did what they claimed was virtually a de novo review. Salient point being that all they did was review the evidence Greer allowed in, sealing Terri's fate. The flawed ruling has never been revisited because, by law, it can't be unless another court takes jurisdiction and has a new discovery phase, in effect, a whole new trial. You can't have a whole new trial unless new evidence comes to light, and the testimony of her friends in family wouldn't be considered new, because Greer already heard it, and threw it out.

Yet another reason my tagline becomes more true with every passing moment.

[AaronInCarolina]

If the issue is, however, whether she wanted to be killed...

I'll take a stab at it. As I understand the FL law regarding removal of nutrition and hydration, the issue is not "whether she wanted to die". It is "whether she STATED that she wanted to die". Semantics?? Maybe, but as it relates to this FL law, it is important. Why?? Because the FL law states that in the absence of a written directive, an ORAL STATEMENT of her wishes will suffice, if there is "Clear and Convincing" evidence that she in fact made such a statement. So the court has to determine if the VERBAL ACT occurred or not. So witnesses to such a VERBAL ACT are called, and these witnesses give testimony to whether they were eyewitness to this VERBAL ACT. So, if the question before is "Did she make a statement that she wished to die?" then witnesses may be called to testify that they witnessed her making such a statement. Conversely, witnesses may be called to testify that she made a statement to the contrary.

As an analogy, if the question before the court is did a defendent commit an ACT of murder, then witnesses to that ACT are allowed to testify that they witnessed the act of murder if such witnesses exist. A witness may NOT testify that another person told them they had witnessed the ACT. That would unquestionably be hearsay. In the same way, in the Schiavo trial, a witness would not be allowed to testify that someone else told them they witnessed the VERBAL ACT of Terri stating she would not want to be kept alive. That would be unquestionably hearsay as well. But testimony may be taken from someone who directly witnessed Terri (alledgedly) making such a comment.

That's the way I understand it. BTW, I don't believe Terri made such comments, and that the judge should have scrutinized more heavily the testimony of Scott and Joan Schiavo, since the Schiavo parents had had their feeding tubes withdrawn by Michael and Scott. That should have rendered testimony by ANY Schiavo as suspicious (IMHO).