Myvice
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Don't leave us hanging, Myvice! Did they find him?
Yes, he was found but he had drown unfortunately. So sad.
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Don't leave us hanging, Myvice! Did they find him?
There are two other common misconceptions concerning the hearsay rule. The first is that hearsay applies only to oral statements. The hearsay rule applies to all out-of-court statements whether oral, written or otherwise. The Federal Rules of Evidence defines a statement as an oral or written assertion or nonverbal conduct of a person, if the conduct is intended by the person as an assertion. Even written documents made under oath, such as affidavits or notarized statements, are subject to the 'hearsay rule'.
The second common misconception is that all out-of-court statements are hearsay. This is not the case. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay. For example: Witness testifies that yesterday he spoke to Jim (who was in Vermont) on the phone and that Jim made the following statement, "It's raining in Vermont!" If the attorney is seeking to use this statement to prove that it was in fact raining in Vermont, then it is hearsay. But, if the attorney is seeking to use the statement to prove that the phone lines were working that day, or that Jim had not lost the power of speech, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and therefore it is not hearsay.
Hearsay in United States law - Wikipedia, the free encyclopedia
According to the above, our Miss X can not testify to anything JP told her regarding the tape (that is hearsay, plain and simple). She also can not testify to any statements made by MP on the tape (this is also hearsay).
Can she testify regarding evidence (in this case the tape) that hasn't been introduced into evidence? I highly doubt that.
JMO, and the last word I'll say on this matter. Promise.
The way I understand the "hearsay" explanation applied to this purported video is that if the recording cannot be obtained to be entered into evidence in court, then anything said about it is hearsay. .
The witness can say she was shown this video by JP. He can say he did not show any video to her. Who to believe?
Only evidence is allowed in court. The actual video would be evidence. Talking about seeing it is not evidence. One cannot prove something exists if it cannot be brought into court.
The actual video would be evidence. ...TRUE
Talking about seeing it is not evidence....FALSE
One cannot prove something exists if it cannot be brought into court....FALSE
I'm not sure who has made you think that evidence is only physical evidence, that's brought to court, but that's not even close.
1 I know the difference between physical evidence and circumstantial evidence.
2 The video would be physical evidence.
3Witness can say she saw it; JP can say she didn't see it because he did not have it to begin with. Where is the evidence that it even exists if it is not physically in the courtroom?
4 Whatever MP says on the video would be hearsay because the witness heard his voice on the video. He talked on the video outside of court, therefore, it is hearsay.
[Numbering added to clarify reply.]
1 I'm not sure you do. Evidence is not categorized as being "either physical or circumstantial"; instead, you would categorize evidence as being either direct or circumstantial.
("Physical" and "direct" are not synonyms even though they may overlap at times. Some physical evidence is direct, while other physical evidence is circumstantial. Some direct evidence is physical, and some is not.)
[Numbering added to clarify reply.]
1 I'm not sure you do. Evidence is not categorized as being "either physical or circumstantial"; instead, you would categorize evidence as being either direct or circumstantial.
("Physical" and "direct" are not synonyms even though they may overlap at times. Some physical evidence is direct, while other physical evidence is circumstantial. Some direct evidence is physical, and some is not.)
2 True. But a meaningless distinction.
3 In this case, the "evidence that it even exists [or existed]" would be the eyewitness testimony of one or more witnesses, and such testimony would be direct evidence.
4 MP's knowledge is hearsay. But the lady witness's knowledge is eyewitness testimony that, in this case, is probably direct testimony as well as pertains to JP, and circumstantial as it pertains to MP.
But as it's testimony as to what she saw, all of it is clearly allowable.
She knows what she saw. She knows who she heard (or thinks she heard). She knows who showed her the video, when and where it was shown to her, and so on.
Respectfully, with almost no exceptions, 'physical evidence' is 'circumstantial evidence'. (Physical evidence really isn't a category at all, though, but if one believes it would include video tape type evidence of a crime being committed, well, that would be direct rather than circumstantial. But what we consider to be 'forensic evidence' (dna, fingerprints, ballistics, etc.) -- that is circumstantial.)
The way I understand the "hearsay" explanation applied to this purported video is that if the recording cannot be obtained to be entered into evidence in court, then anything said about it is hearsay. The witness can say she was shown this video by JP. He can say he did not show any video to her. Who to believe? Only evidence is allowed in court. The actual video would be evidence. Talking about seeing it is not evidence. One cannot prove something exists if it cannot be brought into court. Unless the video is entered as evidence, it is all hearsay. I wish we had a "verified lawyer" on this thread to discuss this issue. I think my opinion and understanding of hearsay is correct. Other posters are sure they are correct. A lawyer (ideally one practicing in TN) would give us good information.
All of this back and forth arguing about hearsay evidence against the brothers, doesn't it mainly just hinge on whether or not the judge will allow it in to begin with?? If the judge won't allow it, then the case against the brothers seems to dissolve, as far as I can tell.
If you're asking if the judge would allow the lady witness to testify, I'm not sure on what grounds the judge could disallow it. It is clearly not hearsay (regardless of what some here want to say) for an eyewitness to testify to what they have seen, so that wouldn't be at issue.
However, such a case would be incredibly weak if it relied solely on a single witness to a video that no one can produce. I'm not saying a jury couldn't convict, because I believe that she probably offers all the elements needed except that the brothers have intentionally destroyed it, but whether she would be believed by a jury to the extent that they would convict is a different matter.