I think what Dishowitz is in arfully sayis is this.
The statement is not the issue, the issue is what did MS do after hearing the statement.
"Mr. Shiavo did terry every tell you anything regarding incapacity? A: yes
Based on that answer, what have you done? A: I am petitioning the court to pull her food so she can die."
Note there is no actual content of the statement. The only point there is what he did in response to some statement. Its a way of getting the EFFECT of a statement into evidence without actually admitting the heresay.
I have actually used that method myself in trial.
Is it me or does it seem like the Schindler's were "out-lawyered?" It's hard to believe that this woman is having the feeding tube removed and no lawyer could find a way to get her the kinds of recent tests available..No MRI? No PET scan? No recent swallow test? If she were truly in PVS or a coma, perhaps there would be less of an issue here...but the fact that she is minimally conscience makes her death by starvation an inhumane and evil act.
Of course, I agree with you. And appreciate you putting it in easy to understand terms.