Discussion in 'Holly Bobo' started by nursebeeme, Mar 5, 2014.
Yes, he was found but he had drown unfortunately. So sad.
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.
[Bold edited by me to highlight applicable items in the rules]
You continue to be way off base on this because you're misapplying the very rules you cite. Maybe you don't understand what the witness is testifying to.
Miss X is not, and has never been said to be, testifying about something JP told her, or something MP said!
She is testifying about what she saw. She watched the video (she says). Her testifying as to what she saw on the video is her giving direct evidence.
Also the following that you wrote is based on an incorrect understanding of what she is testifying to: "She also can not testify to any statements made by MP on the tape (this is also hearsay)".....She indeed can testify as to the fact that she believes she heard him speak. That is not hearsay, it is eyewitness evidence from direct observation.
"Can she testify regarding evidence (in this case the tape) that hasn't been introduced into evidence?"...Absolutely she can, because the tape itself is not the evidence being introduced. The evidence is as to what she saw, when she watched the tape, and also as to the tape's existence.
I think the state will have an incredibly hard time proving the case against either Pearcy, if all they have is her testimony. Any good defense atty should probably be able to poke plenty of holes in that story, to create reasonable doubt if not a summary dismissal. But even in that event, they could convict if she
1 can convincingly testify she SAW something on tape that was Holly related as to the crimes,
2 can convincingly testify to link possession of the tape to the Pearcy's, and
3 is convincing enough to be believed by the judge (to let it go to jury) and then the jury.
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.
That absolutely is not correct, even though it keeps getting repeated here by you and others.
The distinction is that the witness will be testifying as to what she saw, when she viewed the video, and she will be testifying as to who gave it to her. Neither of those are hearsay, because they are not a relaying of "what someone else said to her." It is her personal observation that is being related to the court.
Here's an appeals court ruling in GA on the precise issue in question here, in hopes to put this to bed. The video itself had been taped over and thus could not be entered into court to be seen as evidence, but the testimony by those who had seen its contents was not hearsay and perfectly permissible. In the last paragraph below, which I have bolded, the court underscores the very point I have been explaining repeatedly:
Hammock argues that the evidence was insufficient because the surveillance videotape, which had been taped over and was thus unavailable for viewing at trial, was hearsay and the testimony concerning it had no probative value.   The argument is without merit because neither the videotape nor the witnesses' testimony about what they observed on the tape was hearsay.
OCGA § 2431 defines hearsay as evidence that does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.   Lott v. State, 303 Ga.App. 775, 785(4) (694 S.E.2d 698) (2010).   Hearsay generally relates to an out-of-court statement made by someone other than the witness.  (Citation omitted.)  Blunt v. State, 275 Ga.App. 409, 411(1)(c) (620 S.E.2d 572) (2005).   Thus, y definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent's use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made.  (Citation omitted.)   Diaz v. State, 275 Ga.App. 557, 559 (621 S.E.2d 543) (2005).
Here, the witnesses did not offer any testimony about what someone else said or wrote outside of court.   Rather, they testified about their personal observations of the conduct that appeared on the videotape.
While that's a valid question, the answer is not: "we must exclude such testimony, since there may be some dispute." Instead, the answer is: "that's what the jury is for, to make a determination as to who is telling the truth."
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.
Nobody makes me think anything. I am a well educated adult and can think on my own. I know the difference between physical evidence and circumstantial evidence. The video would be physical evidence. Witness 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? 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.)
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.)
I need some help playing catch up on this case.
In the video below they are asking someone about a video showing Holly being raped by Adams and killed by Autry.
I'm trying to find out who that person was being asked about the video, which hearing it was where this occurred, and if there is a complete video posted elsewhere with his answer.
I've been out of the loop on this case for the last month or more.
The part I am asking about starts at 1:32 and only last for a couple of seconds before they cut in with the story about the brothers.
Thanks for your help---
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.
I'm not verified and don't plan on it, so take it for what it's worth, but to give another example of how things can be proven to exist even if it's not brought into court. Testifying that one saw this video is no different than someone testifying about what Holly was wearing the morning she went missing. They could say she was wearing a pink tutu and that will be admissible even though the pink tutu was never found and couldn't be brought into court. It is then for the jury to decide if they believe the witness' testimony that Holly was, in fact, wearing a pink tutu.
Now where hearsay could become an issue is if John says Paul told him that he saw that Holly was wearing a pink tutu. John's testimony could run into hearsay issues, which makes sense, why not just have Paul testify to what he saw.
Now, instead of pink tutu, replace it with video and the same ideas would apply.
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.
Hey folks, you'll have to forgive me if I'm musing about something touched on and cleared long ago - I'm a sporadic reader and rarely post - I come here every couple months and try to catch up on several cases and skim new ones so obviously things do sometimes get lost as I'm trying to go through pages and pages . . .
Has there been any speculation about the possibility of a human trafficking plan gone wrong? The similarity between SA and the kidnapping suspect sketch in that nearby report keeps making me wonder. Especially since these guys are career felons and their histories - maybe since that sort of thing is getting more publicity lately they thought they could figure out how to get in on it and make their money. Then somewhere along the line something got complicated or one of them got too rough or they weren't able to figure out HOW to 'sell' (ughh) Holly and they knew they couldn't just let her go so it came down to this.
I don't know, this is all wild speculation on my part, of course. I just wouldn't put it past these guys to come up with a plan like this. Also wouldn't put it past them to FAIL at it and end up with her murdered, since it doesn't seem like these are the brightest tools in the shed . . .
"The similarity between SA and the kidnapping suspect sketch in that nearby report keeps making me wonder. "
I think you meant ZA.
Re your question, that clearly is not LE's thinking on the case. Based on what was said in court, it appears they were arrested based on the belief ZA raped Holly and JA murdered her, with those actions being caught on video (one that may have been destroyed).
When it comes to the content of the video it would be hearsay, since she would not have been there herself. The video would be the original "witness", and this woman would be recounting a second hand version, which is hearsay.
The video itself would not be hearsay with regards to the charges of destroying/concealing evidence, but to get those to stick the prosecutor would have to show that the video existed in the first place. If they didn't, they would effectively be placing the burden of proof on the accused, which is not how the legal system works. They would be saying essentially, we accuse you of doing X, now you have to prove that X didn't happen.
If the video did not exist, it would be impossible for the accused to prove that, and that would constitute an unreasonable burden under American law. Consequently the burden would be on the prosecutor to corroborate the claims of the witness, and the only way to do that would be to prove that the video did indeed exist. But since they don't have it, and can't find it, they will not be able to meet that bar of proof.
This charge of theirs is going nowhere, and it appears to be more of an intimidation tactic than anything else. What they probably want is for the brothers to "volunteer" that they did indeed have this video, that it showed X, and that they destroyed it. If they don't "volunteer" and make a deal, then state will wreck their lives through a length legal process, even though a conviction is unlikely.
Since Clint was already there, why didn't she explain it instead of hanging up then? If she was worried enough to immediately call 911, you would have thought that she would have communicated that sort of information to someone she was talking to over the phone who was actually on the scene.
None of these various accounts from various sources over the years make a whole lot of sense. The only explanations IMO are (a) something was brewing in the background so that she immediately knew a serious incident was going down, or (b) the accounts of the conversation and subsequent actions are not accurate.