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[112888]

112888 Posts in 8615 Topics by 4618 Members
Latest Member: garrymoore

[Shanifaye]

First off, I hope this was the right place to put this, if not I apologize

Second, I will preface this by saying, I am not without intelligence, but I will admit ignorance when it comes to understanding legal proceedings.

Since before I have actually joined this board I have read around, trying to understand some things and its just not working. I am reading the court transcripts, starting from the beginning and I already dont understand some things and I thought maybe I could have this thread for questions that the more learned in the case could help me with.  It has become increasingly aware to me that my support may be wavering and hopefully finding understanding of what I fail to grasp will help me get off the fence.  While some of my questions *might* seem off, or unrelated to the guilt or innocence, it will help me with the whole picture, so I hope that those of you that can help will be patient with me and help me out.

I dont plan on making a new thread for every question I have....as I read thru the transcripts I will just throw them all in here (and for the records Im reading from the information provided at Callahan's site)

My first question is regarding the pre trial hearing August 4, 1993.  Why did the defense find it necessary to object to the samples acquired from the defendants at the time of the arrest?  I dont see how those samples would give any different test results than samples obtained later....and it seems like it just made unnecessary work in evidence collecting. 

Now...my first question

[Fwarm]

Well you need to understand that objections are important for future appeals. Sometimes objections may seem mundane or even petty at the time they are given but they could become important later on.

Illegal search and seizure is a violation of the United States Constitution and is an absolute killer for the prosecution if the police failed to follow the 4th amendment. All evidence acquired without proper procedure would be forever thrown out of court and in some cases acquittal.

However defense was just fishing here they were looking for any good objections to reduce the state's case. It is legal maneuvering. These things are important but I wouldn’t get hung up on them they are in many cases just wrangling and at times fishing.

[Shanifaye]

Thanks Scott

my next question.....I am REALLY confused on this on.....this has been discussed many times in the Misskelley trial.....hearsay.  My impression was that hearsay went something like this (making up an example here)

Shannon's hubby:  I talked to Gail today
Shannon:  oh yeah? whats up with her
Shannon's hubby:  Not much, she said Maggie told her that she saw Amanda's husband going into a hotel with someone that wasnt Amanda

now....its always been my understanding that the hearsay would be gail repeating what maggie said, and that I'd have no first hand knowledge that Maggie actually said that


It was brought up many times...but Im going to use the testimony of James McNease as an example

A: Yes, sir. He was at the corner where I live -- my home -- him and uh -- the, I'll get his name right in a minute, Dennis Carter was out, coming down the road. And uh --

Q: [interrupting} Did you talk to them at all?
A: Yes, sir. I went out and was uh -- asked them where they were headed and they said "we're going to go practice wrestling after a while." And I was thinking that --
DAVIS: [interrupting] Your Honor, I object to anything the witnesses may have said. This is hearsay and I must ask that the jury be admonished not to consider it.
THE COURT: Sustained.
BY STIDHAM:
Q: You can't testify as to what anything someone told you. That would be hearsay. So, we just need to stick with what you saw or heard.

Now, this guy was repeating something that was told DIRECTLY to him, not repeating what he heard from someone else that Misskelley might have said

the legal definition of hearsay says this :  hearsay rule

A rule of evidence that prohibits secondhand testimony at a trial. For example, if an eyewitness to an accident later tells another person what she saw, the second person's testimony is hearsay. The reason for this rule is that the opposing party has no ability to confront and cross-examine the person who has firsthand knowledge of the event.


so how is a witness testifying to something that was said directly to him considered hearsay?

[Shanifaye]

(I misspelled Misskelley's name and I can't edit the post to fix it....sorry for the typo....twice)

[Fwarm]

Remember that it is ALWAYS hearsay if the person didn't hear it directly from the accused.

Shannon's hubby:  I talked to Gail today
Shannon:  oh yeah? whats up with her
Shannon's hubby:  Not much, she said Maggie told her that she saw Amanda's husband going into a hotel with someone that wasnt Amanda

The Hubby and Gail are using hearsay only Maggie has direct knowledge of the event. Only Maggie would be allowed to testify.

A: Yes, sir. He was at the corner where I live -- my home -- him and uh -- the, I'll get his name right in a minute, Dennis Carter was out, coming down the road. And uh --

Q: [interrupting} Did you talk to them at all?
A: Yes, sir. I went out and was uh -- asked them where they were headed and they said "we're going to go practice wrestling after a while." And I was thinking that --
DAVIS: [interrupting] Your Honor, I object to anything the witnesses may have said. This is hearsay and I must ask that the jury be admonished not to consider it.
THE COURT: Sustained.
BY STIDHAM:
Q: You can't testify as to what anything someone told you. That would be hearsay. So, we just need to stick with what you saw or heard.

You asked:

so how is a witness testifying to something that was said directly to him considered hearsay?

Objection is in Yellow he stopped him before he could finish and interrupted him, that is what an attorney should do.

He can say what he heard he cannot "THINK" or "WISH" or "OPINION" on the subject.

Only using Caps for emphasis.

[Fwarm]

(I misspelled Misskelley's name and I can't edit the post to fix it....sorry for the typo....twice)

You should be able to edit your post now. I think you been around long enough not to be a dweeb now

[Shanifaye]

Thanks lol even though I feel like a dweeb when trying to understand some of this stuff.  Im still confused, there are numerous times a witness tried to say what he heard with his own ears and it was ruled as hearsay

here is another example from the testimony of Dennis Carter.....

Q: Do you remember a conversation with Jim McNease?
A: Yes, sir.
Q: Okay. Can you tell me about that conversation?
A: He said that --

DAVIS: Your Honor, I'm objecting. He's asking him to respond in terms of hearsay.

CROW: Mr. McNease has already testified about the conversation, your Honor.

DAVIS: Your Honor, it doesn't matter if Mr. McNease testified or not. He can't get up here and testify what someone else may have or may not have said. That's hearsay.

either Im way dumber than I thought....or he was directly asked what was said in his conversation with McNease, and then told he couldnt repeat it

there must be something Im totally missing on this definition

[Fwarm]

Thanks lol even though I feel like a dweeb when trying to understand some of this stuff.  

No you were not put in that group I was just saying if you were going to turn into one you would have already.



Im still confused, there are numerous times a witness tried to say what he heard with his own ears and it was ruled as hearsay

Let's go back to what Davis objected to in your other question. You have to read his objection closely.

Davis says:
" object to anything the witnesses may have said"

That "may" is future tense. He stopped the witness before he could insert his Opinion or what he "Thinks" was going to happen.




either Im way dumber than I thought....or he was directly asked what was said in his conversation with McNease, and then told he couldnt repeat it

there must be something Im totally missing on this definition

It is difficult to know the context of your quote there is not enough there.

It sounds like to me Jim McNease had a conversation with someone and Carter didn't hear it directly. We would most likely have to cross-reference McNease testimony or can you post the link to that statement?

[DogIsYourName]

Hearsay is one of the most difficult rules of evidence to get a good grasp on.  The main reason is that there are many exceptions to the rule.  In general though, you can think of it like this:

1) Is the person offering a statement made out of court by a third party?
2) Is that third party someone other than the defendant?
3) Would that statement be worthless if false?

If the answer to all three of those questions is "yes," then the testimony is most likely inadmissible hearsay.  However, there are exceptions to the rule that make certain types of hearsay admissible.

[Shanifaye]

Scott, the first one I posted was the McNease testitmony, where he tried to recount the conversation that he was having with both Carter and MissKelley and he was told he couldnt....Carter was also trying to recount the same conversation.  There were 3 people involved in that conversation.....McNease trying to say what Misskelley told him and Carter trying to say what McNease said 

McNease's transcript Im reading is here
http://www.callahan.8k.com/wm3/jmcnease.html

Carter's is here
http://www.callahan.8k.com/wm3/dcarter.html

Dog...to ME  number 1 doesnt apply because of what I said above....McNease and Carter were both present for the conversation so it wasnt gotten 3rd hand

maybe I should just give up trying to understand it lol

[Mary7875]

Im still confused, there are numerous times a witness tried to say what he heard with his own ears and it was ruled as hearsay


This is long, shani, but it's the clearest explanation of hearsay that I've found:

Hearsay.  It's defined in popular culture as something you heard someone else say.  The legal definition is a bit different, but let's stick with the popular definition for now.

Lots of people believe that what you heard someone else say isn't admissible in court.  That's not true.  There is a general rule prohibiting hearsay but dozens of rather broad exceptions to the rule.

The fact that there are exceptions to a rule barring hearsay suggests that some hearsay must be ok, while other hearsay is not.  What's the difference?  Before considering that, it helps to understand what the problem is with hearsay in the first place.

The common assumption seems to be that hearsay is unreliable--and should be kept out of court--because the witness might be lying about what someone else said.  That a witness might be lying about what someone else said is a valid concern, but it's no reason to keep such testimony out of court.  Theoretically, a witness could lie about what someone did just as easily as about what someone said.  So, no, we don't make a special case out of hearsay because the witness might not be telling the truth.

We make a special case out of hearsay because, even if the witness really heard the statement, the witness might not reliably convey what the original speaker really meant--either by mistake or because the original speaker wasn't clear.

A well known example of the problem here can be found in the modern classic My Cousin Vinny.  When the officer accuses Billy of shooting the convenience store clerk, Billy responds in disbelief, "I shot the clerk?"  Later, when the officer takes the stand and is asked to repeat what Billy said when confronted with the charge, the officer testifies, "He said, 'I shot the clerk.' "  Subtle difference, but a huge one.  The officer got the words right but the meaning wrong.  You'd want to talk to Billy to be sure you understood what he really meant.

So the trouble with hearsay isn't that the witness might not be telling the truth about what someone else said.  The witness's truthfulness can be an issue no matter what the witness claims to have heard or seen or done.  The trouble with hearsay is that without the "someone else" there to examine, it can be very difficult to determine the reliability of the witness's interpretation of the other person's words.

If you look at the exceptions to the hearsay rule -- and there are dozens -- you'll notice that lots of them concern situations where we can be fairly sure of what the speaker meant.   

[Shanifaye]

well I have to say....put that way.....I understand!!  I always do better with examples lol

thank you very much