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. ....

[tomahawk]

I'm pretty sure the hearsay/verbal act standard is the same in both circuits. And FL law is also relevant, although it must comply with 14th Amendment (US Constitution) due process requirements.

[ex 98C MI Dude]

Yes, but she was disbelieved by the Baron Lord High Executioner and Supreme Judge Greer. You see, it is really neat when you get to decide what evidence you want to admit into a civil trial. You get to direct the outcome. How cool is that! All you have to do is come up with a thinly veiled pretext for finding the person submitting the evidence 'not credible'.

[nicmarlo]

By that reasoning, "shoot me if I ever get like that" could, theorhetically become justifiable right-to-die.

[Dolphy]

Providing just enough indirection to avoid the heresay objection -- and just enough proof to provide idiot Judge Greer to reach the conclusion he did.

Actually in February, 2000 Greer ruled that he did not have to decide on Michael Schiavo's statements since he had the testimony of Scott Shiavo and Joan Shiavo. He found nothing unreliable in them and that they were not impeached on cross examination. He also heard from from an expert witness who said that their testimony was consistent with statements made by people of Terri's age group at the time and that Americans want to "try it for a while" but they do not wish to live with no hope of improvement. He then proceeded to discount any other testimony as non-reflective of what she would do. He considered the quality of marriage questions to be a collateral issue.

For those who continue to defend this judicial process I say beware.

[AaronInCarolina]

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.

Do you know if the Schindler's attornies ever tried to establish the distinction between having a philosophy of rejecting a feeding tube and excercising that right in a particular instance? Seems to me one could, in fact, hold such a philosophy, yet not excercise the right in every conceivable circumstance. It seems the court made the holding of that philosophy equivalent to a desire to excercise it in all future circumstances. That is a big jump to make in logic.

[browardchad]

Cuz they said they heard it from Terri herself, so that makes them 2nd parties, so they're OK, get it?

The same reasoning applies to the the Schindler's witnesses to the contrary.

What this really boils down to is one side's she-said versus another side's she-said -- a few sentences in the span of a 26-year healthy existence, inspired by a sad movie and the death of a loved one.

Which of us can say that we've never made statements that we later reconsidered, never thinking, of course, that verbalizing a passing emotion in our youth would be our eventual sentence to death by starvation in our middle age?

I'm no lawyer, but if the burden of proof for such a weighty decision as life or death rests on some fleeting remarks made in emotional turmoil (rather than repeated, unemotional opinions repeated over the course of years), prudence should dictate that these do not constitute proof of a person's wishes, either way -- except of course, as apparently in this case -- the matter had been decided in Greer's mind and any statement allegedly made to confirm that opinion would do, while any alleged statements to the contrary would not.

I'm reminded of at least one death-row inmate who insisted he wanted to be executed, only to have his life prolonged through appeals by ACLU types determined to prove he didn't really mean what he said.

[TidalBore]

If the statement was made and witnessed by three people, then my question to you is... Why was the feeding tube put in at all? Her wishes should have been granted 15 years ago and not today even be an issue. If her husband knew of her wishes then, why did it take him 8 years to do something? The whole thing stinks, and yes, this country should be questioning its leaders and the courts. If a person wishes to not suffer, it should be at the onset of the problem, not 15 years after the fact!

[Torie]

Hearsay is evidence of what someone else said introduced for the truth of the matter asserted. In the case of Terri's statements, they are not hearsay. They are introduced as evidence of what she said, not whether what she said was true. It is like evidence of an oral contract, where you testify that someone else told you he would sell his bicycle for 500 bucks. That is admissible because you are just claiming the guy said it, not that it was true. It is a statement with independent operative affect.

I hope that helps.

[Defiant]

Fl. law may allow hearsay, but it is still hearsay.

[libravoter]

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.

No...because what he is testifying to is -his- conversation with someone. Now if he testified that John Doe said Terri said she was speeding THAT would be hearsay.

This is not to say that all testimony is true and all hearsay is false. People do commit perjury. And hearsay may be accurate, but it's just not admissible in court.

[mandatum]

Is it in fact the case that Shook testified in the orginal trial? Does Greer state why he dismissed her testimony?

[Defiant]

But it was offered for the truth of the matter asserted, i.e., that she expressed her wish to die, not for some other reason, such as motive or intent of the person testifying. For example, you could testify that you shot Joe because he said he was going to shoot you. Joe's statement as told by you is hearsay, but it's not offered to prove that Joe in fact intended to shoot you. Rather, it's offered to show your motive in shooting Joe.

[Defiant]

No...because what he is testifying to is -his- conversation with someone. Now if he testified that John Doe said Terri said she was speeding THAT would be hearsay.

No, that would be double hearsay, hearsay within hearsay. The first example--Jane told me she was speeding--is hearsay.

[george wythe]

Seems to me one could, in fact, hold such a philosophy, yet not excercise the right in every conceivable circumstance.

I absolutely understand your argument, but off the top of my head, I don't recall if the Schindlers raised that issue as clearly as you stated it.

Btw, the Schindlers had an attorney who became burned out because of the emotional drain of this case, and she was not the best legal counsel in many state proceedings, especially in front of Judge Greer.

[AaronInCarolina]

Yes, but she was disbelieved by the Baron Lord High Executioner and Supreme Judge Greer.

I think that George Felos likely played a role in this. Mrs. Schindler possibly made an unfortunate choice of answering the question likely posed by Mr. Felos: "Just what prompted Terri to make this comment?" Mrs. Schindler apparently answered that it was a "News Report". Felos likely pounced on this like a tiger, and produced newspaper articles establishing the date of the Karen Ann Quinlan story. Since "News Reports" are generally contemporaneous with the items they report, Felos apparently got Mrs. Schindler to admit (he twisted her arm I'm guessing) that the statement was made in the mid '70s. Judge Greer then concluded that Terri would have only been around 11 or 12, not mature enough to develope serious attitudes about end-of-life decisions. If Mrs. Schindler had said a movie or something like that had prompted the discussion, Felos would probably not been able to twist her testimony. Judge Greer used similar methods to impeach Diane Meyer's similar testimony, except he questioned verb tenses such as "is" and "are". Sounds like Clinton to me.

[nicmarlo]

I'm well aware, btw, that Felos was involved with the Browning case. I'm also well aware that Felos is a euthanisia advocate with pro-euthansia groups. I'm also well aware of Medicare fraud committed by Felos concerning the hospice where Terri was "housed" on which he sat as a Board member.

Felos is best known for winning Guardianship of Browning, a landmark case on the so-called "right" to refuse or have withdrawn unwanted medical treatment.

Why is food and water considered "medical treatment"?

How does the use of a feeding tube to deliver it transform food and water into medical treatment?

According to Felos.

A self-described "agent" of God who champions death.

In his oddly titled book, Litigation as Spiritual Practice, describing his feeling on the eve of trying an ultimately successful (for him) tax case, Felos wrote:

“I felt like an empty vessel, a vehicle through which Spirit does its own work. I felt deep gratitude for being endowed with the abilities that allow this work to be done through me. In a sense I lost, at least for that moment, a personal agenda. I became an agent and God was the principal. All I needed to do was permit the work to come through me.”

[henbane]

The inalienable right to refuse medical treatment is guaranteed in the Florida Constitution, and no unconstitutional statute could have changed that.

Indisputable—BUT--

Judge Greer has rested his final and immovable judgement to kill Terri on his ruling that Terri's wishes are being carried out thru the agency of her husband, Michael Schiavo.

Unfortunately, Greer himself has admitted that he committed a devastating mistake in coming to his conclusion--but he will not use his new discovery of his error to save Terri's life.

Rather--he now shoves his mistake back underwater and allows Terri's killing to continue.

Since all other judicial rulings have been made on the legal technicalities of the case and no Court whatsoever has done the novo or new examination of the facts--including the testimony that could save Terri's life--as required by Congress, Judge Greer's invalid foundation upon which he rests this case has never been challenged.

Judge Greer has ruled to eliminate eyewitness testimony that Terri, responding to TV coverage of the Karen Ann Quinlan unplugging , stated explicitly that she, Terri, would never want to be disconnected and hurried off to death.

Based on these verbal statements, Terri's wishes are being directly violated by Judge Greer's death decision.

Reversable error on the face of it.

Judge admits mistake, refuses to reverse findings on Terri Schiavo

The major argument on which Judge Greer's whole case rests is that plug-pulling fulfills Terri's wishes thru the agency of her husband.

Greer's admission of a wrongful ruling on Terri's wishes goes directly against--in fact, completely undercuts--the rationale for killing Terri.

We are on the brink of witnessing a true case of judicial homicide.

[AaronInCarolina]

He also heard from from an expert witness who said that their testimony was consistent with statements made by people of Terri's age group at the time and that Americans want to "try it for a while" but they do not wish to live with no hope of improvement.

This so-called expert witness also established the equivalence between "hooked to a machine" and "not wanting to prolong life". This allowed Judge Greer to broaden Terri's wishes from a more specific claim (alledged by Scott Schiavo) of not wanting to be "hooked to a machine" to the more general "wanting to die if I am disabled".

[DaughterOfAnIwoJimaVet]

I've heard (don't quote me) that there was some change in Florida law that allowed this sort of testimony within that time frame.

Personally, I think it's oddly convenient that three people who aren't blood-related to Terri Schiavo (but are related to one another) have come up with this, and no one else has.

[Smartaleck]

"I guess that depends on what the definition of hearsay is."

Yes it does. Try using a legal dictionary. ...exceptions.