2010.03.08 Motion to Exclude Hearsay, Gossip, Innuendo - Legal insight requested

[ZsaZsa]

There are lots of exceptions to the hearsay rule--like the "excited utterance" exception discussed above re: Cindy's hysterical 911 call. Admissions made by the defendant to a witness fall under another exception.

Until I followed this case I had never heard the term 'excited utterance' but Cindy's call defined it for me. I am a layperson but I know excited, stressed and frantic when I hear it.

 

[LiveLaughLuv]

Also, wouldn't Baez and co. have the chance to cross examine all those statement he feels is hearsay? Why is this coming now vs later. Where is his discovery or his witness list...

The crux of the arguement is CAs 911 calls. I believe Judge Strickland will not have it stricken or sealed. This was when CA was most honest on the smell of death, which later turned into rotting pizza. Are they trying to get CA to not look as if she knew what KC had done, hence the "KC what have you done"!? This has been set up with Baez, CA and company for awhile now, IMO. She's stated it often enough, I said what I had to to get the police to respond. The only thing is, that smell in the trunk proves a dead body did lie there for 2.6 days and the smell still exists..will the jurors take a field trip to observe this for themselves???

Baez doesn't even have his timeline correct as Sojo pointed out. She was not indicted for the murder of Caylee until October, not July 16th...


I believe according to the below quotes, Judge Strickland will not have this tossed!

spontaneous exclamation n. a sudden statement caused by the speaker having seen a surprising, startling or shocking event, (such as an accident or a death), or having suffered an injury. Even though the person who made the spontaneous exclamation is not available (such as he/she is dead or missing), a person who heard the exclamation may testify about it as an exception to the rule against "hearsay" evidence. The reason is that such an exclamation lacks planning and is assumed to have the ring of truth to it. Examples: "Chauncey shot me," "my leg is broken," "the blue Chevrolet hit me." (See: hearsay)
http://legal-dictionary.thefreedictionary.com/Excited+utterance


Hearsay
A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.

It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination: (1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful. (2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand. (3) The witness is subject to cross-examination at the option of any party who did not call the witness to testify.


Hearsay Exceptions: Availability of Declarant Immaterial Present Sense Impression. "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," is admissible hearsay (Fed. R. Evid. 803(1)). An example is the statement "That green pickup truck is going to run that red light."


2. Excited Utterance. "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible hearsay (Fed. R. Evid. 803(2)). For example, "The robber is pointing a gun at the cop!" is admissible.

5. Recorded Recollection. "A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately" is admissible (Fed. R. Evid. 803(5)). The record must have been made when the matter was fresh in the witness's memory and must reflect that knowledge correctly. One example is a detailed phone message.

18. Reputation as to Character. The "reputation of a person's character among associates or in the community" is admissible hearsay (Fed. R. Evid. 803(21)). One example is the statement "Sergei has never said a dishonest word."


admission against interest n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. A third party can quote in court an admission against interest even though it is only hearsay. (See: hearsay, admission)
http://legal-dictionary.thefreedictionary.com/admission against interest
http://legal-dictionary.thefreedictionary.com/hearsay

 

[zoey]

Just the fact that they could come up with 24 pages of statements made that show KC is a liar says it all. It's not as if these people were all asked what lies can you think of that KC said...these are spontaneous statements by various people.

all I keep thinking at this point is, is that what 90,000.00 buys these days??? where is all this "evidence" of kc being innocent so that we can bask in the ahhha moment that jb promised & promised???????:waitasec:

 

[doogiesgirl]

Quoted from motion

The requirements for an excited utterance as interpreted by Florida Courts are:

1) The declarant must have experienced or witnessed an event startling enough to cause nervous excitement.

2) The statement must have been made while under stress caused by the event

3) Statements must have been made before there was time to contrive or misrepresent

Factors a judge should consider to determine whether the necessary excitement or stress is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event an the subject matter of the statement

Cynthia Anthony is not a child, in good physical and mental health, and even though she found out upsetting news, the subject matter of the calls are things she had been dealing with for some time. The same considerations are true for Casey Anthony, and though she is younger, she was not in danger of any physical harm at the time of making the call and calmly explained the events to the 911 operator

In addition, the statement in the 911 calls do not meet all three requirements for an excited utterance, namely the second and third requirements. Cynthia Anthony was still not under the stress of her car being stolen or her granddaughter going missing. Her car had been returned and her granddaughter had not been staying at the house for thirty-one days.

Furthermore, there is a significant amount of time between the two calls, giving Cynthia Anthony time to reflect and regain her composure before calling again to supplement the first call. Time also could have passed between the moment that Casey Anthony informed her mother that the child had been missing for thirty-one days at the moment 911 was called. There is no evidence that Cynthia Anthony was under stress of a startling event

Wow! Wow! Wow! They have got to be kidding me!

1) I don't know what falls under a startling event moreso than just finding out that your two-year-old granddaughter, who can not fend for herself, has been kidnapped... not today, not yesterday, not last week but 31 DAYS ago.

2) Everything Cindy said during that final 911 call was made while under the stress of finding out her granddaughter is missing. Gone.

3) If I remember correctly the final 911 call was made after Casey finally admitted to Lee that Caylee had been kidnapped. The other 911 calls, Casey hadn't admitted this little piece of information. So, Cindy did not have time to contrive (plot) or misrepresent (distort) her words.

Is anyone really upset how they continue to call the kidnapping (murder) of Caylee an "event?" "The event."

I would like to hear what Cindy has to say about them implying that she knew for quite some time that Caylee had been kidnapped before making that final 911 call. That she waited long enough to plot and distort what she was going to say on that final 911 tape.

Also, saying that she was no longer under stress of... this kills me... her car being stolen or her granddaughter going missing. Saying she (Cindy) had been dealing with this "event" for some time. That Caylee had not been at the house in thirty-one days.

:furious:

I am not a lawyer but I can tell you that they will not get the 911 call thrown out.

I can remember the days between the first day I heard news of this case to the day of Dec 11th, 2008--almost every day was spent saying a prayer for Caylee to be found and the guilty to be punished. At some point....I felt soo low....like she would NEVER be found. But after yet another day's prayer, I heard this in my head......"Trust me, I've got this". Not long after....Caylee was found on my son's birthday. My point is.....(going the long way around...lol....sorry), I have this feeling that no matter what happens, in the end, it is ALL going to come together to ensnare ALL guilty parties. So even when the defense SEEMS to gain something, I just have this feeling that it is a "blessing in disguise" to those of us who want true justice for Caylee.

Those people (the A's) made more noise than magpie's for over a year......the state will get the statements it needs to convict IMO.

Keep working though JB.....you do provide some good laughs in your motions(not to mention how his hole just keeps getter deeper and deeper).

Thanks to MM too.

MOO

 

[Just Jayla]

Also, wouldn't Baez and co. have the chance to cross examine all those statement he feels is hearsay? Why is this coming now vs later. Where is his discovery or his witness list...

The crux of the arguement is CAs 911 calls. I believe Judge Strickland will not have it stricken or sealed. This was when CA was most honest on the smell of death, which later turned into rotting pizza. Are they trying to get CA to not look as if she knew what KC had done, hence the "KC what have you done"!? This has been set up with Baez, CA and company for awhile now, IMO. She's stated it often enough, I said what I had to to get the police to respond. The only thing is, that smell in the trunk proves a dead body did lie there for 2.6 days and the smell still exists..will the jurors take a field trip to observe this for themselves???

Baez doesn't even have his timeline correct as Sojo pointed out. She was not indicted for the murder of Caylee until October, not July 16th...


I believe according to the below quotes, Judge Strickland will not have this tossed!

BBM-I think this is coming now and will come later, too. In the opening of the motion, the defense indicates that they reserve the right to object again later.
But you make a great point-Why on earth throw this against the wall now, when they have not even divulged their witness list?
Believe me, I know this is the first of many pre-trial motions and in-trial objections of this nature-We haven't even begun to see the objections that LKB will have to the forensics. But it just seems to me that KC has them doing the backward-sorta-way dance, cause moving forward does not seem to happen much these days with this team.

 

[LambChop]

I think that smelling a dead body in a car (knowing full well what the smell was) would create excited utterance!!!!

CA was definitely excited, panicked, and freaking out as her brain was bit by bit piecing together the lies and gut feelings. The 911 call was the sound of denial crashing like a car hitting a brick wall. Clearly equal to any emergency.

If I were CA, I would be panicked and frantic, blaming myself for not having acted earlier...and urgently acting to limit further damage. (I could equate it to thinking you can fix a leaky faucet, trying to fix it without turning the main to the water off and when it all starts spraying everywhere, calling the plumber to come and fix the problem...excited utterance!)

JMHO

And, of course, CA being a "nurse of decomposition"....she would know. JMO

 

[marspiter]

Well this motion is much to do about nothing. As others have said the SA has witnesses with first hand accounts of many of these statements. For the lying and stealing characterization. Well there is some pretty good first hand knowledge of that too.....perhaps JB forgot about Casey's convictions for check fraud?

I like how JB admits his client never reported her child missing for 31 days and that she was not in any danger. He also admits in this motion that his client was not under stress about her daughter missing. :laugh:

 

[Intermezzo]

Just jumping into this grid.....WTH?.....page 2 George tells Brian Burner that "the shed was broken into and the gas cans stolen".....

Please someone, help me, tell me how this statement is hearsay...ok, I see Burner says it in his transcript, but hello?!! It was a statement of FACT, not necessarily hearsay. Why in the world is this statement listed here? Why would this stmt need to be excluded?

BBM
Thanks kew, I thought the same.
How can that statement be hearsay when it is backed up by George and Police Report?

:waitasec: Question.
Would excluding this statement exclude the statement made by Tony that he and Casey went to the house to get the gas cans?

 

[doogiesgirl]

BBM: Technically, SS said "The truth and Ms Anthony are strangers." Which, I suppose, could be considered speculation? Or prescience. Your pick.

Couldn't you just listen to JSS making that statement to KC ALL DAY LONG!!?? LOL
_________________________________________________________________

I hope JS reads here or is as sharp as you picking up on that. Good catch!! :dance:

We've got a GREAT judge on this case. He has KC's number. At the 3:51 mark is where he makes that VERY WISE assessment of KC.

[ame]http://www.youtube.com/watch?v=GytMpGpEcuI[/ame]

moo

 

[Disguiseduser0308]

Respectfully snipped for space:

LolaMoon I could not agree with you more on all counts. Something about this bolded in red statement really bothers me. I thought KC and her family were in DANGER from the kidnapper nanny? Isn't that why she didn't call 911 or tell anyone except for non-existent people for 31 days? Because she was in DANGER?!!! Careful Baez....your messing with your own defense strategy.

ETA: I'd like to add that after re-reading this motion, I'm further appauled at the repeated attempts to say that at the time of the 911 call, it was "NOT" an emergency, that they were calmly providing information to assist in an investigation. Bull corn! It was an emergency when a toddler has been kidnapped, no matter the length of time it took the tot mom to get found out and a 911 call made! Additionally, aren't you only suppose to call 911 if it's AN EMERGENCY? Don't they ticket people for abuse of the 911 system? Ok, now I'm just blabbering...sorry.

~BBM ~Good heavens! If your child going missing is not an emergency then I don't know what is. It should be on top of the list of reasons you call 911! We've known for a long time Casey didn't see the emergency in her daughter's alleged abduction. Never did I think we would see the defense agree with it.

 

[debs]

So when an emergency situation was upon the Anthony family (When Caylee disappeared) and no one made an emergency call to report it; instead waiting a full month before saying anything, that we're to consider that they were giving it some reflective time to weigh the urgency of the matter?

 

[Intermezzo]

Hearsay statements...
Page 12 line 6
Caylee is missing..


I suppose this is hearsay because Caylee was actually dead and rotting out by a curb side the whole time right?
OMG this really ruffles my feathers this morning!:banghead:

Page 15 Line 5
Someone working for the police said Cindy was telling people Jesse was involved...

Wasn't this caught on video between Cindy's interviews? Hearsay?

How is Lee saying that Casey lies hearsay? Wasn't that established even by the judge early on?
Didn't Casey admit that to investigators when she was at Universal?
Omg this stuff is made for movies, not real life!

BBM
Or compiled into a BOOK...
"Casey Anthony: Truth, Lies and Hearsay, The Bathroom Reader Edition"

 

[Intermezzo]

all I keep thinking at this point is, is that what 90,000.00 buys these days??? where is all this "evidence" of kc being innocent so that we can bask in the ahhha moment that jb promised & promised???????:waitasec:

I thought the same.

 

[Macushla]

This is the first case that I have followed very closely. I am wondering if in other cases, perhaps Scott Peterson, if these kinds of motions were also filed. If it is just 'normal' defense tactics, that's fine and it will be handled admirably by JS.

My second thought is: Was it done this way on purpose? Throwing ALL these 'examples' into the motion would make it much more time consuming to go over them one by one. Perhpas the defense was dreaming that JS would throw out all of them? More likely, was the defense hoping he would deny all of them and by doing so, leave open a path for appeals afterwards?

 

[Rlaub44]

Well this motion is much to do about nothing. As others have said the SA has witnesses with first hand accounts of many of these statements. For the lying and stealing characterization. Well there is some pretty good first hand knowledge of that too.....perhaps JB forgot about Casey's convictions for check fraud?

I like how JB admits his client never reported her child missing for 31 days and that she was not in any danger. He also admits in this motion that his client was not under stress about her daughter missing. :laugh:

That was my reaction after reading the chart as well. It is hard to argue with characterizing Casey as a thief when she has now been officially adjudicated as such.

Although on a positive note, this is one of the few indications I have seen that defense counsel (or their law students) have even reviewed the discovery documents. :thumb:

 

[LambChop]

This post-OJ notion of entitlement to high-profile, high priced, Dream Team defense for any criminal that gets lots of press time has gotta be nipped in the bud.

OJ Simpson had the money UP FRONT to pay for his renowned defense. Robert Blake had the money to pay for his defense...And Michael Jackson, and Phil Spector.

Does this mean KC should get any less advocacy than OJ? Not at all what I mean. A lawyer from a tiny firm in Kissimmee might do an absolutley perfect job. He could hire someone from Orlando that deals in PR, as you'd have to imagine their are PR pros throughout Orlando. Maybe he makes a name for himself in the long run, but his up front cost was reasonable for someone in KC's position. Frankly, at one time, this lawyer could have been Jose Baez.

$90K? Sounds more than fair for a client that can pay for it, but JB knew she could not from day one-So why put your services forth at that rate? Depending on the media to pay the bills, due again in part to the post-OJ era mentality, was a big miscalculation.

Then JB & KC decided that, with only a ball of pocket lint to spare, they would look to California to bring in their experts and co-counsel. ??
Granted, these individuals would jump at the chance, but did he ever talk cost with them? Thankfully, AL provided her services gratis.

And who continually promoted the media to put those pictures out there. The defense. To not do any real work on the case, depos, experts examining the evidence and then come to the end of her money and say, "Okay, now we need to get serious.....we need the state to pay for the depos, experts, etc. and everything else I was suppose to do up to this point." JB is either a very poor planner or he knew exactly what he was doing and hoped no one would notice. Wonder how long it took him to do the other trial that involved the murder of a child and how much did he make off of that case???? JMO

 

[Intermezzo]

http://www.cfnews13.com/uploadedFil...ude Hearsay Evidence, Gossip and Innuendo.pdf

Page 8

"Despite the fact that she says she just found out her granddaughter had been taken and was missing, the fact remains that the child had been missing for a month and Cynthia Anthony was aware of that fact."

Page 10

"Cynthia Anthony is not a child, in good physical and mental health, and though she found out upsetting news the subject matter of the calls are things she had been dealing with for some time"....are they alluding to the July 3rd My Caylee is Missing post?



:waitasec:
W.T.Hay
The Defense says in the same paragraph Cindy just found out Caylee was missing and also says Cindy was aware Caylee was missing for a month. :doh: IMO these are accusations against Cindy.

Also, do I understand this correctly? Page 9.
A child reported missing is not an emergency but an investigation because 31 days has elapsed since the child "was taken"?

 

[Intermezzo]

http://www.cfnews13.com/uploadedFil...ude Hearsay Evidence, Gossip and Innuendo.pdf

Oh My! Page 12

"Casey Anthony in particular had a lot of time to reflect and conduct her own investigation before reporting anything during the 911 call"

And where is the proof of her own investigating...oh ya...in the pictures that the Defense wants thrown out. :doh:

 

[Aedrys]

This is the first case that I have followed very closely. I am wondering if in other cases, perhaps Scott Peterson, if these kinds of motions were also filed. If it is just 'normal' defense tactics, that's fine and it will be handled admirably by JS.

My second thought is: Was it done this way on purpose? Throwing ALL these 'examples' into the motion would make it much more time consuming to go over them one by one. Perhpas the defense was dreaming that JS would throw out all of them? More likely, was the defense hoping he would deny all of them and by doing so, leave open a path for appeals afterwards?

This is not Congress trying to get a fat bill passed. I think Baez is thinking too much like a politician - stuff as much as he can into a motion, hoping JS doesn't read it all, then it gets passed(out of the courtroom) and JS doesn't realize until it's too late what he did. No, Baez, JS is not a senator or congressman you can bribe or trick. He has seen through you and Casey since the beginning. And that is NOT going to change anytime soon.

 

[doogiesgirl]

And who continually promoted the media to put those pictures out there. The defense. To not do any real work on the case, depos, experts examining the evidence and then come to the end of her money and say, "Okay, now we need to get serious.....we need the state to pay for the depos, experts, etc. and everything else I was suppose to do up to this point." JB is either a very poor planner or he knew exactly what he was doing and hoped no one would notice. Wonder how long it took him to do the other trial that involved the murder of a child and how much did he make off of that case???? JMO

BBM
Boy LC, to use bad English....ain't it the truth! It does seem quite clear now that you've pointed it out that JB did as little work as possible until the money ran out, (or should I say he did the things he did to get himself in front of a camera as often as possible, promoting himself), and then petitioned the court to declare KC indigent. After the state begins paying for things, JB actually does work that could benefit KC at trial (if he could get this ruled on in his favor). He may get some things thrown out---but the state will either not need those things or get them in another way. Man, this guy needs to be disbarred IMO.

MOO