Re: Hernandez to be Acquitted and Return to the NFL
posted at 9/5/2013 11:40 AM EDT
In response to BabeParilli's comment:
In response to stillgridlocked's comment:
Babe, the Federal present sense impression exception has not been adopted in Massachusetts so under Massachusetts law that statement cannot be used. Good try though.
Section 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. [Exception not recognized]
Unfortunately for prosecutors, Massachusetts is among the minority of States that has not adopted the present sense impression hearsay exception. So the text is not coming in through that exception in a Massachusetts court, where Hernandez appears headed. (The statement could be admitted in federal court in Massachusetts under the Federal Rules of Evidence.)
That to which you refer is about the text messages, not about statements occurring immediatly after the event.
From Mass Law notes (Section 803):
"The proponent of the evidence is not required to show that the spontaneous utterance qualifies, characterizes, or explains the underlying event as long as the court is satisfied that the statement was the product of a startling event and not the result of conscious reflection. See Commonwealth v. Santiago, 437 Mass. at 624–627, 774 N.E.2d at 147–148.
“[T]he nexus between the statement and the event that produced it is but one of many factors to consider in determining whether the declarant was, in fact, under the sway of the exciting event when she made the statement. . . .”
The person making the statement was not recalling something that happened 2 weeks before. It was within minutes of the event.
I posted those to show you what you used, present sense impression, in that post is NOT a hearsay exception in Massachusetts. So first you were wrong about that Babe not that you would ever admit that.
Now you are coming back and calling it an excited or spontaneous utterance.
Unfortunately what happened is that Wallace told Ortiz that Hernandez told him that he shot Lloyd. That's actually called 'double hearsay'. Check the web, that's what actually was said.
Hernandez told pal Ernest Wallace that he shot Odin L. Lloyd, 27, in an industrial park near Hernandez’s sprawling North Attleboro manse on June 17, according to a police interview with another Hernandez associate, Carlos Ortiz. The statement appeared in documents filed in a Florida court by the Miramar, Fla., police department, to justify a search of Wallace’s home there
Ortiz claims Wallace told him that Hernandez confided in him (Wallace) that he shot Lloyd. Ortiz's statement is "double hearsay."
The ruling on it's admissability will hinge on whether the State can convince the Judge that Wallace and Hernandez were in a joint venture to murder Lloyd. The Judge will have to rule that what Ortiz states that Wallace to him constitutes a statement made in furtherance of the goal of joint venture.
(d) Statements Which Are Not Hearsay. The following statements are not hearsay and are admissible for the truth of the matter asserted:
(2) Admission by Party-Opponent. The following statements offered against a party are not excluded by the hearsay rule:
(E) A statement of a coconspirator or joint venturer made during the pendency of the cooperative effort and in furtherance of its goal when the existence of the conspiracy or joint venture is shown by evidence independent of the statement.
Ortiz may never come to the stand to testify about his statement because he could be incriminating himself. The Defense can ask him whatever they want once he's on the stand.So can he say testifying may incriminate him. If he doesn't testify that's a problem because you have the right to face your accuser in court.
For all anyone here knows Ortiz could have pulled the trigger and made it up. What happens if Wallace and Hernandez say Ortiz shot him?