Outside the Beltway

Hearsay and the Terri Schiavo Case

James Joyner
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I don’t know how many times I’ve heard in the last couple of weeks that the testimony by Michael Schiavo and others as to the wishes expressed by Terri Schiavo was “hearsay.” Not so.

Hearsay Rule and Exceptions

Hearsay is “second-hand” information. It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw. Hearsay usually involves an attempt to get some crucial fact entered into evidence that cannot be entered into evidence by any other means. The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the “real” witness who originally saw or heard something.

Thus, the testimony by someone who reports on a conversation they had is not hearsay. Indeed, excluding such testimony would exclude virtually any testimony other than a direct confession by the accused.

Imagine this exchange:

Bank Teller: The defendant said, “Put the money in the bag or I’ll shoot.”

Attorney: Objection! Hearsay!

Judge: Sustained.

Prosecutors wouldn’t bother to bring many cases to trial if that were the rule.

(The link above also discusses the numerous exceptions to the hearsay rule that have evolved over time.)

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9 responses to “Hearsay and the Terri Schiavo Case”

  1. Steven L. Avatar
    Steven L.

    The statement is hearsay. There are a number of exceptions to the hearsay rule that allow out of court statements (hearsay) to be used if they are judged to be reliable enough, but the statements are still hearsay if offered for the truth of the matter asserted.

    Your bank robber example would not fall under a different rule, as the demand for money is part of the res gestae of the offense — the demand is treated as more of an action than a statement. Regardless, the statement can be used in court.

  2. denise Avatar
    denise

    “Thus, the testimony by someone who reports on a conversation they had is not hearsay.”

    That’s not quite right. It depends on the purpose for reporting on the conversation. Hearsay is an out-of-court statement offered to prove the truth of the matter stated.

    So, you can produce evidence of an out-of-court statement if it’s only being offered to prove that the statement was made, such as “the defendant said ‘put the money in the bag or I’ll shoot.’ ” In that case, no one’s really trying to prove that the defendant would have shot, just that he gave the order and made the threat to shoot; that statement proves that it’s a robbery. It is very frequent in trials that out of court statements are offered to prove something other than the truth of the matter stated.

    On the other hand, if a witness tries to testify that “X said ‘the light was green when I entered into the insersection’” most likely that would be offered to prove that the light was green when X entered the intersection. That’s hearsay.

    Then you get into the exceptions, and there are a lot of them.

    So, it seems to me that if Michael Schaivo testified “Terri said she would want to die,” then that’s being offered to prove she would want to die, and that’s hearsay. I’m a lawyer, but not a litigator, so I would yield to someone with more experience in the rules of evidence who can show why this is not hearsay or meets an exeption.

    At any rate, from what I know of the Florida law, it specifically allows this testimony, so it creates its own exception to the hearsay rule. It is the law, but I don’t think it’s a good one.

  3. wavemaker Avatar
    wavemaker

    According to the Florida law governing “advanced directives,” the definition of a “living will” or “declaration” is:

    (a) A witnessed document in writing, voluntarily executed by the principal in accordance with s. 765.302; or

    (b) A witnessed oral statement made by the principal expressing the principal’s instructions concerning life-prolonging procedures.

    Matt Conigliaro covers the subject well at his website, http://www.abstractappeal.com, where he states:

    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….

  4. Just Me Avatar
    Just Me

    “(b) A witnessed oral statement made by the principal expressing the principal’s instructions concerning life-prolonging procedures.”

    Okay, I am not a judge or a lawyer.

    But I think it is a big leap to go from “I wouldn’t want to be hooked up to machines” or “I wouldn’t want to live that way” as expressing instructions concerning life prolonging procedures.

    I realize that many people would disagree with me, but just seems to me the statements that Terri made seem a bit to general to be real instructions, although maybe the Florida case law has better defined this, but I guess when I see “expressing instructions” I think more along the lines of “I do not want these (fill in the blanks) done under these circumstances.” I do think there is a huge leap from comments made about people on respirators to make them also apply to feeding tubes. For one thing, my mom’s wishes were that respirators and simlar not be used, but she did not want us to remove or refuse to use a feeding tube, if she got sick or injured in some way. She never had anything in writing, but her verbal instructions were far more defined than “I wouldn’t want to live that way”

  5. denise Avatar
    denise

    “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….”

    Wavemaker — Let’s say we have a statute providing that in absence of a living will document, the patient is deemed to have chosen continuation of a feeding tube (or whatever) and outside testimony as to her wishes will not be allowed.

    Are you saying that statute would be unconstitutional? I don’t think so (but my husband has enough fear of activist judges to think it would held unconstitutional).

    “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.”

    I don’t buy that. Her words don’t have any significance, except as proof as to what she wanted.

    Now, if Michael had gone in and pulled the tube out and was now being sentenced for murder, then you could offer Terri’s words, not as proof of what she wanted, but as proof of Michael’s state of mind when he pulled the tube.

  6. wavemaker Avatar
    wavemaker

    Denise, the quotes you refer to are from Matt Conigliaro, not me. He is the “expert” on Florida law….but if you’re looking for a discussion on the subject (sorry, but I do not argue in blog comments any more — it’s counterproductive), I would say that if the Florida Supremes have said their COnstitution gives its citizens the “right to be left alone,” then yes, I think taking that choice away from them might be unconstitutional.

    As to the hearsay issue you raise, the hearsay rules are similar in most jurisdictions, so I feel comfortable in saying that Conigliaro is CORRECT, notwithstanding your skepticism. Since the FLorida statute regarding the right to refuse life sustaining measures clearly accepts oral statements as probative evidence of the patient’s wishes, it would be a rather strange occasion indeed if those oral statements were barred from evidence on the basis of the hearsay rule.

    Similarly, one of the standard exceptions to the hearsay rule is the use the of statement as evidence of the declarant’s state of mind at the time the statement was made. In either situation, her statements are fairly rules admissible.

  7. denise Avatar
    denise

    Wave — I agree the statements are admissible, because the Fla. statute creates an exception to the hearsay rule for these situations (not because the statements aren’t hearsay).

    I wasn’t looking to argue about constitutionality, just wondering what your opinion would be. Sorry I didn’t catch that you were giving an extended quote from Mr. Conigliaro.

  8. wavemaker Avatar
    wavemaker

    No apology necessary, Denise — Probably my bad — I’ve become rather — ummmm….skittish in light of the — ummmm….virulent exchanges taking place on the subject over at Wizbang. Sheesh!!

    BUT, since we have agreed in general, allow me to ask a question of semantics!! (heh heh) Is a statement that is an exception to the hearsay rule actually hearsay, but for the exception? If the definition of hearsay (as we agree) is an out-of-court statement by the declarant offered to prove the truth of the matter asserted therein… ohhhhhhhh forget it.

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