1. "I need a lawyer"
Posted by harry on May-18th-03 at 10:00 AM

All of us who have read any of the court testimony have been frustrated by this "You can't say what the person said." mantra that is all through the documents. What is even more frustrarting is that it is sometimes allowed to be stated. Here is an example. Mrs. Brigham is testifying, Trial-1528. They are talking about the note that Mrs. Reagan was asked to sign refuting the Borden sisters arguing:

Q.  What did you see her do or hear her say? What was the first you saw done about the paper?
A.  I saw Mr. Buck with a paper in his hand. I saw Mrs. Reagan leave the room with Mr. Buck.  Some one told me---
Q.  You can't tell what some one told you. Did she come back soon after?
A.  I don't know how long after.
Q.  Did she come back?
A.  She did.
Q.  And how did she appear and what did she do or say when she came back?
A.  She acted mad.
Q.  Well, what did she say?
A.  She sat down in the rocking chair as near me as she could sit. She said to me "It is all a lie from beginning to end. I was willing to sign that paper but the Marshal wouldn't let me do it. He told me to go to my room and obey orders. I would rather leave a place than stay here where I have been so lied about."

In this case it is not that it was "some one" that told her because it appears to apply even when the "teller' is known.

I would like to get clear in my own mind the rules that govern this type of testimony. Sometimes they can, sometimes they can't. It seems whatever Lizzie said could be quoted. A great many times the situation would be a lot clearer if there were a more fuller explanation. They could only say what they did as a consequence of hearing the statement.

I have my own vague idea of why but I would love to hear other opinions or reasons why this is so. Any lawyers in the house?


(Message last edited May-18th-03  10:58 AM.)

I've noticed that peculiarity too, Harry.  I know there are some esxceptions to the "hearsay" rule, such as excited utterances made by the person being quoted.  (Lizzie's "O, Mrs. Churchill, do come over..." speech would probably fit into that exception.)  However, I don't understand the apparent exception in the passage you quoted.  I've been reading a book called "The Brother," about the Rosenburg espionage case of the 1940s-50s.  Even though everyone concerned in the case was still alive and likely available to testify at the Rosenburgs' trial, it appears that all kinds of hearsay evidence was permitted.  I cannot figure out why that happened.  I wish the author would explain it.  He does explain almost everything else, including things I wish he hadn't, because the explanations put me to sleep. 

First (see Louis Nizer's book) Federal court rules differ from state rulse [then]. Federal follows European rules where the judge can take part in the trial to ask and clarify testimony. State courts restrict the power of the judges; and vary.

Robert L Shapiro notes that the judge is part of the prosecution team; they're mostly former prosecutors. The constitutional rules depend on how important is the evidence to the prosecution; if they depend on it, the rules are stretched to allow it! "The fix is in."

"Hearsay" may(?) be allowed if the person speaking is not available (dead). Check your state laws.

I get confused about what exactly hearsay is and when it's allowed or not too.

But in the piece you quoted I would have to say, not being a lawyer, that the "someone told me" part was not allowed because it refers to a party that was not Mrs. Reagan, it referred to an unknown party. But what Mrs. Reagan directly told Mrs. Brigham is allowed because it is coming from Mrs. Reagan, and that is who the attorney is asking about, what did she, Mrs. Reagan say.

I found this:

"General Rule of Hearsay

First, then, the standard definition of hearsay as found in the widely used Black's Law Dictionary (5th edition): "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. 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. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say." As the definition also notes, there are numerous exceptions to the hearsay rule (for example when the original declarant is not available and the statement contains indicia of reliability)."

Thanks Harry.
Do you think that means a first person account is OK but when first person tells what second person said, even TO first person, that may not be admitted, at times?

Your last two words "at times" say it all.  I can't find any real pattern to it.

It also appears to depend on whether the prosecution and defense both want it. Then it appears to be allowed.  A few times one will ask the other "Do you want it?" meaning the conversation.

When one does and the other doesn't then it goes to the judge. But in most cases the questioner nips it in the bud before the conversation can be stated.

Very perplexing.

(Message last edited May-18th-03  9:19 PM.)

Thanks for finding that, Harry.  It is one of the more annoying aspects of the trial, personally I would like to hear what was said in all these instances.