See my reply to another poster above. It was hearsay.
Yesterday, I saw on the news a protester carrying a sign that asked, "SINCE WHEN IS HEARSAY ADMISSIBLE?" I wonder how often protests involve rules of evidence.
I also heard hosts on news shows of three different networks express bewilderment at how the trial court could have relied on hearsay to determine Terri's wishes.
If you've read the trial court's original decision regarding Terri's wishes, then you know the court considered five persons' testimony of what Terri supposedly said to them about what she wanted. That's the supposedly inadmissible hearsay. Some say it shouldn't have been admitted. Others say it can't amount to clear and convincing evidence. "It's not in writing!" they say, as if writings aren't hearsay, or that a writing would eliminate any controversy. (More on that oft-repeated fallacy in a later post.)
I've addressed this issue countless times in emails, but the email flood has gotten too large in the last couple days to respond to each one, and this issue continues to bother people. It doesn't help that the media haven't figured it out. I wish they would. They're supposed to be doing a public service.
So I'll do what I can to clear this up on the blog. Someone tell the news folks.
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.
In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:
A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:
1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.
The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:
We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.
Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.
(all emphasis added).
I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.
An assertion that the ward made a particular statement may certainly be challenged as unreliable -- that the ward never said it -- but there is no question that evidence of the ward's oral statements is admissible evidence, or that oral statements may constitute clear and convincing evidence. That's the law.
http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111167384435979940
For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)
Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.
Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:
That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.
There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.
How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?
Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.
Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:
As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:
There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).
These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.
It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.
I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.
I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?
...posted by Matt Conigliaro For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)
Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.
Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:
That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.
There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.
How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?
Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.
Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:
As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:
There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).
These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.
It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.
I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.
I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?
...posted by Matt Conigliaro Û 4:52 PM Û #
On points of law, I'm inclined to believe Dershowitz over you.