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 ...
Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind.You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.
Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.
Does Florida have a Dead Man's Statute?
Neither would I. I wouldn't want a law professor defending me, but an accomplished trial lawyer. I would, however, want that law professor advising my defense.
Neither were the parents' testimony hearsay, only the judge chose to believe the adultering husband.
Mikey's brother was on Larry King a couple of nights ago saying that he is the one that told Mikey that Terri said she would not want to live. THAT certainly is hearsay if that was Mikey's testimony. Only I believe his testimony was the she said it to him. The Schivao brother said she said to him and then he told Mikey seven years later. All of it stinks.
So it WASN'T ACTUALLY a de novo review. Just looked at the same stuff. So, new affadavits submitted by nurses, doc?
Forgive me if I am slow, don't really know much about the law, but I think I better start learning.
Utterly amazing.
And Mikey's ex-girlfriend (Cindy Shook)stated that he told her that he had no clue what Terri wanted, because they never discussed it. More inadmissable hearsay, evidently.
Ok, true.
it was declared to be a "finding of fact" in the case, which is apparently very difficult to overturn.
Indeed.
Apparently with speach therapy she could; but, rather than try given that she hasn't been afforded that for years, they're going to kill her so that nobody has the opportunity to hear her side.
(9) "Life-prolonging procedure" means any medical procedure, treatment, or intervention which: (a) Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; and (b) When applied to a patient in a terminal condition, serves only to prolong the process of dying. The term "life-prolonging procedure" does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
(10) "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
Jan - 2000 Judge Greer Conducts Terri’s Feeding Tube Removal Trial.
At any rate, your longer post is also well developed.
sorry, that post was incomplete. I don't know what happened. Was supposed to say...
No new affadavits submitted by the nurses and Dr.'s was taken into account or at the very least, reviewed.
I could give a crap. It's hearsay and a lie. A lie that is going to kill Terri. Dershowitz can drop dead.
They looked at the videos 'through the eyes of educated laymen', and read the testimony of Doctor Cranford (Hemlock Society member)and one other who said she was PVS, and one doctor who said she wasn't. Our black-robed executioners believed the guy from the Hemlock Society.
The nurses affidavits were never seen by the 2nd, because Greer never admitted their statements into evidence. Why? Because the Hemlock Society doctor told Greer that Terri couldn't swallow. Greer took him at his word, called the nurses liars, and threw out the statements.
Terri never had a chance.
Actually I think Shook's hearsay statement could have been admitted (at least in a federal court) as an admission by a party or opponent.
Since the Florida Constitution is the supreme law of the land, and the Florida Constitution allows Floridians the right to refuse feeding tubes, the quoted argument has been rejected by the courts.
When Terri had her cardiac arrest, there was an unconstitutional statute on the books. Nevertheless, by 1989, such statute had been challenged in courts and found to be unconstitutional. Before Terri's collapse, both the trial court and the appellate court had decided that such statute was unconstitutional. At the end of 1990, the Florida Supreme Court upheld the decision by the appellate court.
Since the Florida Constitution trumps any unconstitutional statute, the Florida courts have rejected the Schindlers' argument that withdrawing a feeding tube was illegal when Terri collapsed in 1990. The inalienable right to refuse medical treatment is guaranteed in the Florida Constitution, and no unconstitutional statute could have changed that.
?
Then what are we talking about?
I don't know what you are talking about here, but for the record, I am talking about the Terri Schiavo case. Terri Schiavo is a disabled person and yes she is being killed, on the orders of a judge, at the behest of Michael Schiavo. So yes, somebody bloody well is killing a disabled person.
And why are "no witnesses" sufficient (to many people, at least) to deny someone of her rights?
Come again? You lost me here.
Someone is being denied of her rights, all right. It is Terri Schiavo, who is being denied her right to life.
Our rights are as important--more important--as our lives.
A bit awkwardly stated. One of those rights is life. But, ok, I'm with you so far.
One of those rights is the right to live or die, as an individual chooses
There's a right to life I know about. It is mentioned in both the Declaration of Independence and the Constitution.
But, from whence have you derived this "right to die" of which you speak? All people will die. That is so. But we don't usually consider suicide a "right". Indeed, when and where possible we attempt to rescue suicides. This could not happen if to do so would be to deny the suicide his "right to die".
Anyway, whether Terri Schiavo has a "right to die" is academic. She has not "chosen" to die in the first place (she is disabled and noncommunicative, therefore cannot choose to die or much of anything else). And the fact that she is dying is not something that was initiated by herself, but rather by a guy and a judge.
There's no "right" to cause other people to die cuz you say they wanna, which is what is actually going on.
They are right; verbal acts are not hearsay at all.
Verbal acts fall under the list of hearsay-like statements that we lawyers call hearsay exclusions. A verbal act is one that has independent legal significance, like transactional or tortious words.
A verbal act is a hearsay exclusion rather than a hearsay exception.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.