http://www.thehinkymeter.com/phpbb/viewtopic.php?f=52&t=1215NOTE BY VALHALL - I'm beginning this thread with a comment by Attorney Silverspnr posted last evening in the proceedings thread that explains the legal issues behind the argument that will take place first thing this morning concerning whether Casey's prior felony convictions will be allowed into the trial for the purpose of impeaching Casey.
In the Huggins case, the defendant did not take the stand. His defense attorney, over the hearsay objection of the State, elicited testimony from a prison guard about whether the defendant had SHAVED HIS PUBIC REGION DUE TO A LICE OUTBREAK--as the defendant would have claimed had he taken the stand,-- thereby exposing him to having his credibility attacked with evidence of his prior convictions on crimes involving dishonesty.
The purpose of his lawyer eliciting this testimony was to show that the defendant did NOT shave his pubic region in order to avoid having a pubic hair sample collected, and to specifically contradict the State's claim that he shaved his pubic region in order to avoid being INCULPATED by the evidence it would have rendered.
The short of it is that if HE had testified to what he did, he would have been subject to impeachment via his prior convictions pursuant to Section 90.601.
So...In an attempt to avoid putting him on the stand and subjecting him to 90.601 impeachment, his attorney got his out of court ASSERTION as to what he did and why he did it into evidence THROUGH ANOTHER WITNESS.
But UH-OH.
Rule 90.806 says that if he gets that HEARSAY EVIDENCE before the jury through another witness... the State can then move to admit the PRIOR CONVICTIONS even though he hasn't taken the stand.
Remember (from my long ago post), "HEARSAY" (in the LEGAL realm) isn't defined as "something someone else said".
HEARSAY is an "OUT-OF-COURT ASSERTION that is OFFERED for the PURPOSE of proving the TRUTH OF THE MATTER ASSERTED THEREIN".
So... it is not what laypersons think it is, and it is understandably quite confusing, even to many lawyers and judges, so don't lose sleep over the details unless you are preparing to represent yourself in court sometime soon.
For instance, an "ASSERTION" can be an ACTION someone took (shaving his pubic hair, for example), and so long as it is being offered to prove the TRUTH of why the assertion (either a statement of an action) was made, (as opposed to some OTHER, NON-HEARSAY REASON), it is subject to the hearsay rules of evidence.
And it is the PURPOSE for which the OUT-OF-COURT "assertion" is being OFFERED that makes all the difference.
(You will hear one side object to a question by stating, "Objection-calls for hearsay"; and you might hear the other side say, "Judge, we are not offering it for its TRUTH. We are offering it to show STATE OF MIND" or "CONSCIOUSNESS OF GUILT" or for some NON-HEARSAY purpose.)
Now-
As I pointed out in the prior lengthy explanatory post, there are NUMEROUS EXCEPTIONS to the hearsay rule. (And I mean anywhere from 18-26, depending on the jurisdiction).
Yes, it is a complex area of evidence law.
And yes, a lawyer can get into trouble (or create trouble for his client) if he is not well versed in the rules or simply fails to comprehend them, or simply makes an error.
A good example of one of the widely accepted exceptions to the hearsay rule is an "EXCITED UTTERANCE".
For example: "Something's WRONG...I found my daughter's car today... and it smells like there's been a DEAD BODY in the DAMN CAR!" is an "excited utterance" and therefore is admissible pursuant to a specific exception to the rule.
Why? Because it is an assertion (either a statement or an action) made by the witness when he or she was speaking or acting under the stress/excitement of the moment/circumstances such that there is such an inherent indicia of reliability in the assertion so that we accept it as being truthful on its face.
In other words, we EXCEPT from the rule an assertion that was made where the person making it did not have time to reflect on the situation in order to fabricate it.
Another example of an exception which takes the circumstances under which the statement is made into account is the "DYING DECLARATION", which is an assertion made by a person who is operating under the stress of the belief that they are, in fact, dying at that moment. (This is how we can get a deceased crime victim's statement that "X SHOT ME" into evidence after they have passed away, so long as the statement was made under the appropriate circumstances indicating the required indicia of reliability, i.e. they really were dying --or believed that they were dying--at the time they made the statement.)
In any event...
You can read Huggins v. State, 889 So.2d 743 (2004). (GOOGLE IT).
As you will see, there is a dissenting opinion which disagreed with the majority's affirmation of the trial court's admission of this evidence.
The dissenting opinion discusses that even if the prior convictions are proper to admit pursuant to Section 90.806, the trial court should still engage in a "403" analysis.
Rule 403 (in Federal Court, and in the States where I practice) has a similar counterpart in the Florida Evidence Code: Section 90.403.
All deal with the admissibility (or, the inadmissibility) of evidence whose probative value is substantially outweighed by the danger of its prejudicial effect, etc.
Here is the Florida version:
90.403 Exclusion on grounds of prejudice or confusion.—Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
So... expect Baez to argue that a) the prior convictions are inadmissible, improper impeachment, or b) that even if the court finds they are proper impeachment (due to his opening the door), the court should still exclude them under a "403" analysis...and wait to see how Perry rules=)