Breaking a leg

[LincolnMan]

Does Fido miss the cat?

[JMadonna]

(11-29-2012 08:57 PM)J. Beckert Wrote:  I just feel with all the variables, we can't say for sure where the break occurred.

Well I disagree - IMO where it occurred changed Booth's entire escape plan. If it occurred before he crossed the bridge, Booth would have never told the sentry he was heading south towards Beantown, pretty close to his actual route.

That statement was not arrogance speaking - that was a misdirection ploy that went awry when the horse tripped - AFTER he crossed the bridge.

[RJNorton]

Do we have an attorney on the forum? What is hearsay?

Why do we trivialize Booth’s own statement that he broke his leg while jumping?

To me, hearsay is when one person says something to another and then that person testifies to it, not the person himself. Or the oral words of a dead person (as reported by another person) would be hearsay IMO.

But the written word of a dead person to me is different - why would that be hearsay? I am not an attorney, but off my personal understanding of what hearsay is, I would think a judge would allow the diary over the words of dead people or what one person reported another person said.

[Rob Wick]

According to Black's Law Dictionary (Fifth Edition):

Hearsay. A statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801©. "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Calif. Evid. Code.
Hearsay evidence is testimony in court of a statement made out of the court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Mutyambizi v. State. 33 Md.App. 55, 363 A.2nd 511, 518. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity.
There are numerous exceptions to the hearsay exclusion; see e.g. Fed.R.Evid, 803, 804.

The part I put in bold type has always been what I considered the meaning of hearsay to be.

Best
Rob

[wsanto]

(11-30-2012 09:51 AM)JMadonna Wrote:  Well I disagree - IMO where it occurred changed Booth's entire escape plan. If it occurred before he crossed the bridge, Booth would have never told the sentry he was heading south towards Beantown, pretty close to his actual route.

A reminder--I am new to this, so I may be missing something, but wasn't Booth going to Surratt's Tavern to pick up the guns and field glasses that Mary Surratt made sure were ready for him? When, do you suppose, did he diverge from his planned escape route because of the broken leg?

[Laurie Verge]

I'm going to get myself in trouble with Jerry again, but if Booth and Herold had passes signed by VP Johnson, they could have exited the city any way they wanted. Why the bridge into Southern Maryland if they did not intend to use the services of the Secret Line in that area?

I did read your book, but I forget the line of reasoning as to why they headed south if they intended to go north. That part of the plan seems to have been thought of ahead of time and did not depend on or change because of a broken leg.

[wsanto]

(11-29-2012 08:41 PM)JMadonna Wrote:  Actually Joe, the definition of hearsay is anything said that can't be cross-examined. Booth's writings in his diary definitely fit the definition of hearsay.

If his diary never existed do you really think anybody would have postulated that he broke his leg in the leap from the stage? What evidence would they have to make such a theory?

Regardless of whether Booth's diary is hearsay, the evidence of the horse fall is equally as questionable in my mind. Roger Norton provided Mr. Kauffman's article on his argument for the horse fall on another thread.

The only evidence Mr. Kauffman presents that is not based on what Booth told others is Herold's statement that he was present during the fall and helped Booth re-mount (presumably on the easier-riding horse) and the statement from Mudd's stableman that Booths' horse had a swollen left shoulder and a flesh wound on his left leg.

Of course, none of this evidence has been cross-examined.

Herold is a known liar and co-conspirator. He developed a cover story with Booth that they carried forth and stuck to, for the most part, during their escape. This fictional story may have included the horse fall as a rationale for Booth's injury.

If Herold's statement of the horse fall was made prior to the trial, it is subject to skepticism. If it was made after his conviction, it is stronger evidence but that still doesn't mean that it is true. It was certainly made prior to his knowledge of his sentence and he still might have been motivated to continue the story to maintain consistency with his previous narrative of the escape.

As far as the injury to the horse noticed by Mudd's stableman--Apparently Ferguson stated the the horse had in injured shoulder (from the shoulder bag) prior to the horse being used for the escape. There would also be other common reasons that the horse might have developed a flesh wound on his leg during the escape in the dark of night. The horse was obviously not terribly injured as it was used for many more miles of the escape.

Booth's diary is his confession and rationale (embellished to a certain degree for sympathy and posterity) of the assassination. I am not convinced that he felt that inventing his breaking his leg at Ford's would garner more sympathy than a horse fall during the escape. Why would he even include breaking his leg at Ford's unless there was some truth to it?

[RJNorton]

(11-30-2012 01:11 PM)wsanto Wrote:  Why would he even include breaking his leg at Ford's unless there was some truth to it?

Dr. Santo, thank you for sharing your opinions!

I still await a hoped-for legal opinion on Booth's diary. Based on what Rob posted, I will stick to my original opinion that a dead man's diary could be admissible in court and not considered hearsay. Despite being dead, it is the man himself "talking." To me, that does not come under the definition of hearsay as I understand it.

[J. Beckert]

I would think the diary itself could be entered as evidence. The chain of custody would have to be well documented and those who handled it would probably be called to testify it was not tampered with. Herold should have also been called to testify it was Booth's writing and he saw him do it. I don't see hearsay applying if it the Court allowed it as a piece of evidence.

[Rob Wick]

Not sure how relevant this is since it is a civil matter, but here is a court case involving a diary.

Here is a criminal case involving a diary. Begin reading between the 20th and the 21st line for the relevant information.

Best
Rob

[J. Beckert]

Very interesting, Rob. I think I dated Mary for a while in the 90's.

[RJNorton]

Thank you, Rob and Joe.

"The court determined that Mary was not biased and that her diary statements were not made in contemplation of litigation, but rather were made as part of Mary's recording the everyday events of her life. We find no error in this regard."

Booth was recording an event in his life, and I don't think litigation was on his mind, so I would think the diary would be admissible.

"We conclude that the admission into evidence of Mary's diary was neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the Supreme Court."

[J. Beckert]

This leads to whole different question. Why would a sharp legal mind like Edwin Stanton not produce the diary for the trial? Aside from Booth, who was already dead, I really don't remember it's contents containing anything damning for the other conspirators. He did mention "this brave boy with me", but that really doesn't have much to it, as Herold was found with Booth. I do find it strange, however, that it was not introduced. Lincoln's hat was exhibited at the trial, for Pete's sake.

[Gene C]

Booth's diary created more questions than it answered. His comment about going back to Washington to clear his name? The missing pages? Like you said, Stanton had a sharp mind. He didn't introduce the diary because he didn't need the diary to convict anyone and Booth was dead.

[Laurie Verge]

Joe, I have asked that same question before and the only answer back is one that I thought of on my own: The diary (which only became a diary during the escape) belonged to Booth, was filled with his ramblings, and had nothing related to any of the conspirators who were on trial - except the one "brave boy" statement that you just quoted. Nothing was in the diary that Stanton and others thought pertinent to the prosecution of those conspirators -- and they already had passed judgment on the dead Booth. Does that make sense?

The only phrase in Booth's writings in that diary that I think the prosecution could have run with was his claim that he had every mind to return to Washington and "clear his name." Now, you Stanton or Johnson theorists can take that and run with it.

One more comment, and this is related to a previous post about Booth heading somewhere other than south. Someone (wsantos?) asked why the carbines and supplies would have been stashed at Surrattsville if Booth had intended going north. To me, that is an excellent point. And, once he left D.C., he was leaving rail lines behind - nothing ran into Southern Maryland until late in the 1870s (and much of that was courtesy of the efforts of Col. Samuel Cox).