Help Wanted

[John Fazio]

(09-26-2015 05:35 AM)RJNorton Wrote:  THANK YOU, John. Please recall that I began my question with saying that I have trouble with understanding the concept of hearsay. I did not realize how complex the subject was. Your efforts in explaining are most appreciated.

Hopefully you won't mind - I have another question along these same lines. Would the words of a dead man also come under an exception? For example, how about the conversation Cobb said he had with Booth? Cobb said Booth gave his real name. These were the words of a dead man - unchallenged in court. We accept Cobb's word on this as true, but all we have is Cobb's recollection of what a man, then dead, said.

Are Booth's words admissible in court due to an exception in the hearsay rule?

In 1992 I was on a jury in Illinois. A widow was suing her dead husband's doctor for malpractice. The trial lasted two weeks, and the judge would never allow the deceased man's oral conversations to be admitted as evidence. His written words, such as letters he wrote, were admitted, but not his oral words as heard by others. The judge was consistent in his rulings....written words, yes; oral words, no. Obviously we have two totally different situations here, but if this Illinois judge's rules were applied to the conspiracy trial, Booth's diary would have been admissible but not his conversations as reported by others.

Roger:

The Federal rules of Evidence, followed almost to the letter by all the state rules, to my knowledge, provide that statements made by a deceased person are hearsay and thereofr inadmissibile, withthese exceptions:

1. A statement made under a belief of impending death (in a homicide or civil action), i.e. a statement made while the decedent believed his or her death was imminent if the statement concerns the cause or circumstance of his or her impending death.

2. A statement of any deceased person if ALL of the following apply:

a. The person's estate or a representative of his or her estate is a party to the action;
b. The statement was made before death (that's what it says!!!);
c. The statement is offered to rebut testimony by the adverse party on a matter within the knowledge of the decedent.

The Judge in the case to which you refer was therefore on sound legal footing.

Hope this helps. With respect to 2.b, above, statements made after death are clearly inadmissible irrespective of the availability of the corpse.

John

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(09-26-2015 08:11 AM)Wild Bill Wrote:  So hearsay is what the judge will let you get away with?

Wild Bill:

That's an oversimplification. There is a rule and there are 22 to 28 exceptions to it, and most Judges know it well because they have to in order to be Judges, but the lawyers who practice before them are woefully ignorant of the rule and its exceptions. Personally, I would favor joining those jurisdictions in which there is no such rule, where all hearsay evidence is admitted and the trier of fact (Judge or Jury, depending on the case and the jurisdiction) then determines how much weight to assign to it in making a judgment. It's an archaic rule, just like the rule against self incrimination ("the fifth"). Both of these rules took root in the common law at a time when trials by ordeal and "Star Chamber" proceedings were common, i.e. little or no due process. Google "Star Chamber" for an interesting slice of history.

John