SIDEBAR #7 (4:49-4:59) PROFFER OB JG BY JB: He was engage to ICA. He had a conversation with her shortly after Caylee was born regarding LA. He felt uncomfortable with LA when he first met him - LA was very sullen, quiet and standoffish and he wanted to know why. ICA said she did not want Caylee around LA. She told him that at one point in recent years that she woke up to find LA staring at her and another point she woke up to him groping her. He had no interest in furthering the conversation. If ICA told him that, he believed her and took it as fact. He believes he told that was all he really needed to hear. No questions by the State. Witness excused at 5:01 HHJBP: So the Court will have the Defense's theory correct, the State is objecting on the basis of HEARSAY? JA: Yes, specifically excludes an after the fact memory or belief. The entire matter is hearsay and not relevant as it happened in 2006. JB: We may have further argument in the morning. We would like to have the evening to review it. HHJBP: The research I had previously done indicates this is not admissible under the state of mind hearsay exception rule. I will look again tonight. I invite both sides to present what they have. Also, AF wants to make the DP motion tomorrow at 8:30 via phone? JA: Also, the proffer on the witness (Caryoth?). He did not depose her because no opinions were offered. JB agreed to proffer. JB: She was available Saturday for a depo via skype. JA asked if she had any facts, they told him no, she would speak generally and JA chose not to depose her. I have long been objecting to all of these proffers. I'm going to object again. These have to come to an end and the State has to be ready to try the case and not expect an advance preview. If JA wanted more info, he could have taken her depo and asked her about grief and what she would be testifying to. Now she has to come down from Tallahassee with the hopes that she can testify. JA: I have no problem with the proffer by phone. He did not take the depo because it was scheduled at 2:00 on Saturday when Dr. Rodriguez's was scheduled. Dr. Caryoth was sitting at a neighbor's house waiting to testify. He asked JB if he had a problem proffering her testimony - and he said no problem. CM was there. He can't guess what hypotheticals the witness would testify to. JB: It was late Saturday afternoon. We were all tired and I understand him not wanting to take her depo. He had a report of what she was going to say. I am willing to give a general proffer of the topics she will testify to. I am not willing to have her come proffer then come back to testify. JA didn't take advantage of the opportunity. Give an inch and they take a yard. This has been going on for 3 years. Issues on both sides, but don't neglect your responsibilities. You should do what you were expected to do which is take the deposition. HHJBP: Is the witness being called to testify on general grief. Is the witness going to be asked hypothetical questions based upon the evidence that has thus far been presented? JB: Yes. HHJBP: Has the witness interviewed ICA? JB: No. HHJBP: When had you planned on calling her as a witness. JB: She is planning on being her tomorrow morning. HHJBP: I don't have a crystal ball. I have no earthly idea what she is going to be asked or her responses. I have tried to be up front with everyone. I have given you every case on the subject on grief. Depending on what she is going to say, some of it may be admissible and some of it may not be. If there is a hypothetical based upon record evidence, then she can explain as a result of that hypothetical whether grief would have it. During Jury selection it was quite evident that the jurors have been questioned about death and grieving. The Court concluded there was no need of expert testimony on the question of grief. There was no question asked of the jurors whether or not they had any experience with death or grieving. Thus, there is a possibility that the evidence may be permissible, based upon the testimony that his been thus brought for. Guess we'll go in and out like pop tarts tomorrow. Hopefully there will be a well constructed hypothetical based on record testimony. The testimony should not be a mystery. If there was some mystery and some discrepancy, you could have made requests from the court reporting service on how to retrieve testimony. I even gave my cheat sheet to the Defense and the State. So, we will see tomorrow what the testimony will be. How many more witnesses after the grief counselor do we have? Half dozen? Okay. At the conclusion, before the defense rests, I will be making the necessary inquiry about the Defendant choosing not to testify to make sure it is her decision and her decision alone. If you should happen to find any cases tonight, email them to me so that I can read them first thing in the morning. The phone call with AF will be for the record if she is arguing a motion. It will go to the media and anyone else who has ears. Madam Court Reporter, email me JG testimony.