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

[Wescott]

I think I am in the other camp as far as the defense trying to throw CA under the bus. They may appear to do so, but I believe with all of my being that CA, GA, JB and KC are tight as ticks. JMPO

ITA ... And BC. I think Cindy would take one for the team, no problem at all.

 

[RR0004]

HLN discussing this case right now.

THE PARTY GIRL PHOTOS

Attorney Jean Cesaraes is opining the photos when Caylee was missing will come in, at least some of them. The state was never going to even try to admit all of them and likely not the ones that are not close in time.

Attorney Mark Iglarsh opined that we should be glad to see the defense doing this. The more bases they cover, the less likely she can have the case later tossed out claiming ineffective counsel.

THE 911 TAPE

Caller: Her being a nurse, her husband being a copy CA knew what a dead body smells like, that tape should stay.
Host: Cindy tried to back up off of this and say she meant it smelled like rotting pizza.

Jean : Excited utterance


Mark: You don't have to be a father to feel..anyone with decency can hear it in her voice. It is coming in, it was an exited utterance, spontaneously made while she was immediately under the impression Caylee had been kidnapped.

Caller: So what..leave it out , there is other evidence against her.
Host: Mark, how important is it..this 911 tape?
This case does not hinge on the 911 call. We have the smell in the car from George in his LE interview, being a former cop ..he knows the difference between a dead body smell and rotting pizza. The state may not even use the 911 call in their case in chief and save it for impeachment or their rebuttal.

Is it my imagination...or did Cindy state someone (meaning LE) was there (as in just arrived) in this 911 call? I thought I heard it when they played it on JVM.

 

[sleutherontheside]

I think I am in the other camp as far as the defense trying to throw CA under the bus. They may appear to do so, but I believe with all of my being that CA, GA, JB and KC are tight as ticks. JMPO

I see your perspective and actually see AL playing BOTH sides of this debate.
Here is a link to an article written about AL from 1996.

http://74.125.47.132/search?q=cache:NeUKQOq3ztAJ:www.independent.co.uk/life-style/gwen-garcia-is-a-killer-she-wanted-the-death-sentence-to-be-carried-out-but-others-thought-she-should-live-1324515.html+andrea+lyon+radio&cd=96&hl=en&ct=clnk&gl=us

This article discussed the length that AL will go to try to save a life......she has even been accused of takes her efforts beyond what the client wants (in this case) and fired because of it. Here is a snippet.

Professor Andrea Lyon, of the University of Michigan law school, was Guinevere's lawyer until last summer, when Guinevere fired her for trying too hard to overturn her death sentence. In a letter Professor Lyon wrote on Sunday to the governor of Illinois, Jim Edgar, seeking clemency for her former client, she wrote: "When Gwen began to drink at age 13 (most of her family drinks heavily), it was no surprise. When she was 'dancing' in a disreputable place at age 15, it was no surprise, and when she was hooking thereafter it was no surprise. At least not to any of the mental health professionals I spoke about this case with. Her behaviour is all too typical of abused children: no self-esteem, self-destructive behaviour, sexual promiscuity."

Now what is relevant about this snippet is that the letter that AL wrote on behalf of that client...where she clearly digs up old family dirt and puts it out there.....was written AFTER her client asked her to stop trying to save her life.

AL also preaches continually in her lectures, that if the "mother" of the defendant is missing or not visible to the jury....that they will infer that the family does not support the defendant. SO in her opinion....you make sure that family is sitting there for everyone to see.

What is my point you may ask?????? My point is that AL will play both sides and all cards in order to save a life. Collateral damage is just the cost of doing business. When you have only ONE goal........you'll play whichever side will get you there and not look back.

 

[RR0004]

It seems like the majority of you feel the 911 tape will be admitted. I hope so since to me this is the most damaging evidence. My concern is that based on what I read in Florida Law it seems like the defense may have a leg to stand on to get the tape removed..I snipped a piece out from a case in Florida...

http://www.accessmylibrary.com/article-1G1-144567278/crawford-impact-florida-criminal.html


Clipped:

"What happens when the state seeks to introduce an audiotape of a police-controlled phone conversation between a nontestifying co-defendant and the defendant? A survey of post-Crawford Florida cases reflects the likelihood that police-controlled phone calls are inadmissible in a criminal trial unless the declarant testifies at trial and is subject to cross-examination. In State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004), rev. granted, 894 So. 2d 972, rev. dism'd., 911 So. 2d 95 (Fla. 2005), the court held that admission of a nontestifying co-defendant's out-of-court statement to the defendant during a police-controlled, audiotaped phone conversation would, in light of Crawford, violate the Sixth Amendment confrontation clause because the defendant did not have an opportunity to cross-examine the co-defendant."


Casey's statement about not seeing the child for 31 days was on this tape. However, I am assuming that she will not take the stand during trial. Doesn't that mean her statement (and the tape where she makes that statement) would not be admissible? Or am I over thinking this? I just can't handle another OJ case.

This isn't the tape with the "dead body" is it? Casey's signed statement states the same thing. Not sure how that case applies here.

ETA: This is the 2nd 911 call according to transcripts...was there a third call? Interesting that Casey was there with the mention of the dead body...no wonder she didn't want to take the phone. http://www.cfnews13.com/News/Sidebar/2008/7/24/transcript_of_second_911_call_from_cindy_anthony.html

...and yes the police had just arrived...guess it din't matter what Cindy said to get them there after all.

 

[ynotdivein]

http://www.accessmylibrary.com/article-1G1-144567278/crawford-impact-florida-criminal.html


Clipped:

"What happens when the state seeks to introduce an audiotape of a police-controlled phone conversation between a nontestifying co-defendant and the defendant? A survey of post-Crawford Florida cases reflects the likelihood that police-controlled phone calls are inadmissible in a criminal trial unless the declarant testifies at trial and is subject to cross-examination. In State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004), rev. granted, 894 So. 2d 972, rev. dism'd., 911 So. 2d 95 (Fla. 2005), the court held that admission of a nontestifying co-defendant's out-of-court statement to the defendant during a police-controlled, audiotaped phone conversation would, in light of Crawford, violate the Sixth Amendment confrontation clause because the defendant did not have an opportunity to cross-examine the co-defendant."

Respectfully snipped for focus.

But Cindy is not a "co-defendant"? And is a 911 call "police-controlled"? Sounds to me like maybe the cited case involves one defendant taking a plea and calling the other on a tapped (police-controlled) call?

Heck, maybe I am over thinking too. But tomorrow I get a doc dump for my b-day and hopefully it will be a gift that everyone here will enjoy!

If "enjoy" is the right word. Again with the over-thinking... :angel:

 

[logicalgirl]

It seems like the majority of you feel the 911 tape will be admitted. I hope so since to me this is the most damaging evidence. My concern is that based on what I read in Florida Law it seems like the defense may have a leg to stand on to get the tape removed..I snipped a piece out from a case in Florida...

http://www.accessmylibrary.com/article-1G1-144567278/crawford-impact-florida-criminal.html


Clipped:

"What happens when the state seeks to introduce an audiotape of a police-controlled phone conversation between a nontestifying co-defendant and the defendant? A survey of post-Crawford Florida cases reflects the likelihood that police-controlled phone calls are inadmissible in a criminal trial unless the declarant testifies at trial and is subject to cross-examination. In State v. Hernandez, 875 So. 2d 1271 (Fla. 3d DCA 2004), rev. granted, 894 So. 2d 972, rev. dism'd., 911 So. 2d 95 (Fla. 2005), the court held that admission of a nontestifying co-defendant's out-of-court statement to the defendant during a police-controlled, audiotaped phone conversation would, in light of Crawford, violate the Sixth Amendment confrontation clause because the defendant did not have an opportunity to cross-examine the co-defendant."


Casey's statement about not seeing the child for 31 days was on this tape. However, I am assuming that she will not take the stand during trial. Doesn't that mean her statement (and the tape where she makes that statement) would not be admissible? Or am I over thinking this? I just can't handle another OJ case.

Is that case law talking about a 911 call or wiretapping?

Because if it's talking about a 911 call, it's the defendant who is usually doing the talking and it is a tape recording of a statement- hardly a conversation - what's to cross examine in a statement to call the police or an emergency vehicle? This is going over my head.....

 

[Just Jayla]

I really, really hope that Cindy figures it out and comes out swinging against these accusations and is able to see that Casey is 100% behind what these motions are implying. I really, really hope that she does.

I'm surprised that Brad has not released a statement on behalf of Cindy yet?

KC can throw both of her parents under the bus and move on like nothing happened...as soon as a third party validates her feelings of entitlement-picture AL telling KC about how many poor defendants had mean mommies-KC's sociopathy kicks into gear and she runs with it. She probably gets a "high" out of defying CA this way.

ETA-Best hope is that CA realizes this and helps to turn this "hearsay" into direct testimony.

 

[logicalgirl]

Could be that AL sat CA and GA down and told them this was one of the only ways to save KC....and CA is alright with it

And maybe end up being charged with Caylee's death? Not a chance! She'd take the martyr "I did/gave her everything" route, and I "worked my fingers to the bone, unlike her useless father" and the "this is how she thanks me" route rather than actually risking admitting she had anything to do with assisting Casey.

All that Cindy did - all that evidence tampering, obstruction, etc., was because she was protecting the daughter she bore and raised. Casey's behaviour reflected on Cindy and "the family". She might lie to protect Casey, but lie to take the fall herself. IMO - never!

 

[ZsaZsa]

Things that make you go hmmm.. JBaez made a statement that all the 'ugly coping' behavior,lies,evasion and racy photos would be understood when the truth came out... Now he doesn't want them brought in at all. How can we 'understand' if the information is so prejudicial it can't be allowed at her trial?

 

[ZsaZsa]

ITA ... And BC. I think Cindy would take one for the team, no problem at all.

St Cindy, patron saint of Martyrs? Nah..

 

[logicalgirl]

Things that make you go hmmm.. JBaez made a statement that all the 'ugly coping' behavior,lies,evasion and racy photos would be understood when the truth came out... Now he doesn't want them brought in at all. How can we 'understand' if the information is so prejudicial it can't be allowed at her trial?

Oh heck ZsaZsa - that idea they floated didn't even make a skid landing - it crashed and burned. No way are they trying that defense again - they know the jury would burst out laughing.

 

[BonKai]

I haven't had time to read everything in this thread, but this Motion made me laugh at the defense yet again. They file this Motion, but they want to use Jill K's testimony regarding Kronk? Really? :floorlaugh:

 

[impatientredhead]

Respectfully snipped for focus.

But Cindy is not a "co-defendant"? And is a 911 call "police-controlled"? Sounds to me like maybe the cited case involves one defendant taking a plea and calling the other on a tapped (police-controlled) call?

Heck, maybe I am over thinking too. But tomorrow I get a doc dump for my b-day and hopefully it will be a gift that everyone here will enjoy!

If "enjoy" is the right word. Again with the over-thinking... :angel:

This case that went through Florida is much closer to this case as far as 911 calls and police statements being admitted. Now of course this case is heavily weighted on the person who made the 911 calls not being available to testify and therefore the tapes should not have been admitted since the defendant was denied the opportunity to cross examine.

Hopefully Cindy isn't reading here and won't become unavailable....

http://www.5dca.org/Opinions/Opin2006/031706/5D04-2534.op.pdf

 

[impatientredhead]

http://goliath.ecnext.com/coms2/gi_0199-5429358/Crawford-s-impact-on-Florida.html

911 Calls

Prosecutors often attempt to prove their cases by seeking the admission of 911 recorded telephone calls. The admission of such 911 calls is now called into doubt as a result of Crawford. In Williams v. State, 909 So. 2d 599 (Fla. 5th DCA 2005), the court ruled that admission of a 911 tape did not violate the defendant's right of confrontation. The court reasoned that statements made to a 911 operator were not testimonial and, thus, their admission was not improper under Crawford.

In Towbridge v. State, 898 So. 2d 1205 (Fla. 3d DCA 2005), the court held that a 911 tape was properly admitted as a "spontaneous statement" under F.S. [section] 90.803(1) (West 2005). In affirming the defendant's conviction, the court relied upon and agreed with the analysis of the Fifth District Court of Appeal in Herrera-Vega v. State, 888 So. 2d 66 (Fla. 5th DCA 2004), which held that Crawford was inapplicable to spontaneous statements made by a child victim to her parents under F.S. [section] 90.803(23). It is interesting to note that Towbridge addressed the admission of a 911 tape under [section] 90.803(1), yet the Towbridge court relied on Herrera-Vega which addressed the admission of a child hearsay statement under [section] 90.803(23).

It appears that some courts are concluding that 911 calls are non-testimonial because the statement is not made in response to police questioning and because the purpose of the call is to obtain assistance, not make a record against someone. (12) The U.S. Supreme Court, in Davis v. Washington, 126 S. Ct. 547 (2005), has recently accepted certiorari review in a Washington state case involving the admissibility of 911 calls in light of Crawford. The Washington Supreme Court in Davis. determined that in most cases, one who calls 911 for emergency help is not "bearing witness" and thus, the 911 call will not be the equivalent of a testimonial statement, but a 911 call to the police to report a crime may be the functional equivalent of testimony to a government agent and thus, testimonial in nature. (13) Counsel litigating the admissibility of 911 calls should pay close attention to this anticipated Supreme Court decision.

Type of Cross-Examination Necessary to Satisfy Defendant's Right to Cross-examine Declarant

A major issue in Florida which has not been resolved by the Florida Supreme Court or the U. S. Supreme Court, is the type of cross-examination necessary to satisfy a defendant's right to cross-examine a declarant under Crawford. In states such as Florida, where pre-trial depositions are permitted, does a defendant's right to take a declarant's pre-trial deposition qualify as Crawford-sufficient cross-examination? What if the defendant chooses not to take the declarant's deposition? Does the actual taking of a pre-trial deposition of a declarant by a defendant satisfy this confrontation-clause based right to cross-examine? Or, must the defendant be afforded his or her right to cross-examine in the courtroom during trial? Florida decisions are currently split on these issues. (14)

This is a thorny issue which can only be flushed out by future Florida and federal decisions. Although an argument can be made that such pre-trial depositions do satisfy Crawford's cross-examination requirement, it cannot be refuted that there is no cross-examination like trial cross-examination in the courtroom with all the attendant formalities and authority. Pretrial depositions are often conducted in small, cramped, un-professional rooms. Some depositions have even been conducted in hallways. Depositions are often not as focused or surgical as trial cross-examination. The stronger argument is that there is simply no pretrial substitute for in-court cross-examination of the declarant in the courtroom before a judge and quite often a jury.15 It may very well be a slippery slope, indeed, if the defendant's prior opportunity to take a pre-trial deposition of a declarant, or a defendant's actual pre-trial taking of a declarant's deposition, is permitted to substitute for the in-court cross-examination. Future cases will certainly have to resolve the issue of whether pretrial depositions, or the right to take such depositions, satisfies the cross-examination requirement of Crawford.

 

[sleutherontheside]

An analogy that may seem off topic but bear with me....

When you have a dish that your kids just hate.....
they turn their nose up at it. :no:......they gag.....uke: they run.......they put their hands over their mouth in an effort to avoid it..........but you know they need it...... What do you do????

You know that you must find a way to slide it in their meal so it is barely perceptible, doesn't call attention to itself, and doesn't blow your cover.

You hope that by adding enough other ingredients to this dish that your kids won't even notice ...that one thing that you wanted to make sure they got in their diet...that all important ingredient that is a must have in their diet.

Even if your kids don't eat all of this dish...you know that they will at least get the benefit of some of those vitamins, minerals, or nutrients. Do this enough times and they don't think twice.

Do you see the moral to this story?????

 

[impatientredhead]

caselaw.lp.findlaw.com/data2/floridastatecases/app/app1_4.../01-1135.pdf

This one is a Florida case were the battered woman tries to recant her 911 call where she says her husband hit her in the face with a beer bottle. The tapes were admitted and he was convicted even though she testified it was an accident. The conviction was upheld on appeal.

 

[ZsaZsa]

Couldn't he just simplify things a whole lot,cut his costs, save paper and just ask the Court to not allow any evidence that would help convict Casey?
I think his motions will get laughed out of court. These actions illustrate what a shambles this defense really is behind the scenes.

 

[strawberry]

Things that make you go hmmm.. JBaez made a statement that all the 'ugly coping' behavior,lies,evasion and racy photos would be understood when the truth came out... Now he doesn't want them brought in at all. How can we 'understand' if the information is so prejudicial it can't be allowed at her trial?

And when he's showboating on TV, why don't any reporters (except Kathy Belich) ask him that???????????:furious:

 

[gamom]

I agree with the earlier post that says the defense did a great job with trapping KC in her lies. That being said, CA and GA did a good job trapping themselves in their feelings/statements. There is no turning back from any of them. I also like the 911 tape because it indicates Zanny, making it very hard for the defense to go after any other person. I don't know why the defense never just pled insanity. I think they would have the best chance with that defense. If for nothing at all it would at least help her avoid the DP. In my opinion, the moment little Caylee's remains were found the defense fell apart. I hope judge strickland sees right through all of this stuff and lets the evidence be heard by the jury.

 

[butterfly1978]

This is my 1000th post :woohoo: so I hope its a good one, LOL.

Did anyone else read on page 10 where it says
"In addition Casey Anothony's statement regarding how her daughter was taken 31 days ago by the nanny and that she had been looking for her using her own resources are also in narrative form, making them neither spontaneous or reliable." Then it goes on to say "the statements made by Cindy AND Casey are in narrative form, recalling events that have past and not the fact that anything is happening at the moment. BOTH Cindy and Casey answer questions when asked by the 911 operator, that there was time to reflect and therefore the statements are not admissible under an excited utterance hearsay objection."
After rereading this tonight what the defense is doing is :back:, they are wanting the statement made by Casey herself about "the nanny" not admissible, that way they can lay the path for the SODDI defense, because they know there is no NFG, and they know that Casey herself said that was who had Caylee. The defense knows they can't try and say someone else did it when Casey herself stated on the 911 call that Zanny had her, and they can not defend that statement, so they want it to go away, so that they can say Kronk or someone else is responsible.