Uechi-Ryu.com

Discussion Area
It is currently Tue Sep 23, 2014 8:27 pm

All times are UTC




Post new topic Reply to topic  [ 6 posts ] 
Author Message
PostPosted: Sun Dec 24, 2000 12:54 am 
Offline
User avatar

Joined: Thu Mar 11, 1999 6:01 am
Posts: 30238
The LFI [lethal force Institute] recommends that in spite of the mantle of confidentiality extending to one’s wife and clergy, a potential defendant should not speak to them about the facts of defensive shooting, as an example.

The theory being that if the wife or the clergy disseminates privileged information to third parties, not under the protective umbrella of attorney / client, such parties can be made to testify under subpoena against the defendant as to what they heard.

Question is __ why is that allowed in spite of the fact that such dissemination may occur long after the event? Wouldn’t that be hearsay?

My understanding is that only RES GESTAE statements [immediate and spontaneous__ closely on the heels of an event] fall within the hearsay exception.




------------------
Van Canna


Top
 Profile  
 
PostPosted: Sun Dec 24, 2000 1:58 am 
Offline

Joined: Mon Nov 08, 1999 6:01 am
Posts: 1070
Oh God, no: there are about 30 exceptions to the Hearsay Rule, Van. And they differ from jurisdiction to jurisdiction.

Hearsay is not a self-enforcing rule: when a judge hears what the judge knows to be hearsay being offered the judge has no duty to stop the offending statement unless an objection is raised timely!

The problem with objecting to evidence being offered is that you take the risk of the jurors hearing it first, and the jurors are indeed human and cannot, despite the most strict orders from the judge, strike the offending testimony from their minds! Indeed, the whole objection process may serve to raise the importance of the testimony in their minds.

Better far not to give a prosecutor a peg to hang his hat upon by not making statements other than to your attorney. When possible, strike offending testimony by motions in limine prior to the trial.

I'll be interested in Alan K's response.

student

[This message has been edited by student (edited December 23, 2000).]


Top
 Profile  
 
PostPosted: Tue Dec 26, 2000 2:35 pm 
It is my understanding that a spouse cannot testify against the other spouse. What happens to that concept when they get divorced?

------------------
Allen Moulton from http://www.ury2k.com/


Top
  
 
PostPosted: Wed Dec 27, 2000 4:18 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
With reference to Van Canna sensei's post on confidentiality, Student addressed the exceptions to the hearsay rule very well and the fact that in a court trial the inclusion or exclusion process often is dependent on how well counsel object and save their rights of appeal.

Because what is confidential varies in our different jurisdictions with rules in civil trials and rules in criminal trials, also having many exceptions or differences, one is wise to seek legal advise.

You must always remember that there is a fine line, in many cases, where you have the duty to protect yourself against self incrimination, or utter statements which would make you liable for slander or libel.

Depending upon circumstances, there may be a requirement that you give evidence or not to impede a criminal investigation. My advise is not to be a "good guy" or volunteer unless you seek legal counsel.

Allen M raises the issue of spousal immunity and its possibility of disappearance.
This will vary from state to state; apply in some states only to criminal cases, and may evaporate upon the disolution of marriage.


Top
 Profile  
 
PostPosted: Thu Dec 28, 2000 8:57 pm 
Offline

Joined: Mon Nov 08, 1999 6:01 am
Posts: 1070
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by student:
Hearsay is not a self-enforcing rule: when a judge hears what the judge knows to be hearsay being offered the judge has no duty to stop the offending statement unless an objection is raised timely!

<HR></BLOCKQUOTE>

I don't want to leave the wrong impression; do not confuse a judge's duties with a judge's actions.

I have been defense counsel at a criminal trial where the judge, a former prosecutor "sustained" objections favorable to the prosecution...before the prosecutor even made them. In fact, the prosecutor didn't take the hint and even make many of these "sustained" objections after the fact.

Most judges do try scrupulously to be fair. But others try to help the side with whom they agree....


student


Top
 Profile  
 
PostPosted: Fri Jan 05, 2001 9:45 am 
Offline

Joined: Sat Dec 12, 1998 6:01 am
Posts: 1688
Location: Weymouth, MA US of A
I haven't a clue as to what happens when a couple gets divorced, re: spousal priviledge.

In Massachusetts, spousal priviledge applies to the spouse-witness NOT the spouse-defendant. You can't prevent your wife from testifying, but she can decide herself whetehr to testify or not. There were a few nototrious court cases where prosecutions were hampered by wives refusing to testify.

I wonder if an attorney can clarify?

Gene


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 6 posts ] 

All times are UTC


Who is online

Users browsing this forum: No registered users and 1 guest


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
Powered by phpBB® Forum Software © phpBB Group