Patterico's Pontifications

6/9/2011

Poetic Justice for Elizabeth Edwards?

Filed under: General — Aaron Worthing @ 7:54 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Oh this is sweet:

In a final act of revenge, Elizabeth Edwards secretly recorded a testimony in her dying days that helped prosecutors indict husband John last week, it was claimed today.

John Edwards is due to stand trial on charges that could lead to a 30-year jail sentence after he pleaded not guilty on Friday to using $925,000 in campaign funds to cover up an affair and love child.

The estranged wife of the former presidential candidate is alleged to have filmed a damning testimony that was central to the prosecution’s case for charges.

Friends said the cancer victim, who died in December, wanted to ‘haunt’ her estranged husband and his mistress Rielle Hunter, with whom he fathered a child and made a sex tape.

Do read the whole thing.

Now in fact the Daily Mail appears to be using the term “testimony” in the informal sense, but still even as an out-of-court statement it might very well be admissible if other conditions are met.

But honestly my suspicion is that this kind of “testimony” is of little value if it is merely disputable eyewitness accounts, i.e. he said, she said.  That could be dismissed as the anger of a woman scorned.  On the other hand, if she gave specific information about names, transfers, correspondence, whatever…  it might lead to other independently verifiable evidence.  And that might be her (successful revenge).

It all makes me think of this classic movie moment:

That scene is hammy as hell, and almost 30 years later, it still rocks.

Update: In the comments, “J” reminds me that Mrs. Edwards was herself a lawyer. So we can be reasonably certain that she made sure it was admissible, and as damaging as she could make it. Nice.

[Posted and authored by Aaron Worthing.]

26 Responses to “Poetic Justice for Elizabeth Edwards?”

  1. well, its not a weinerpost, but its still about a cheating POS…

    Aaron Worthing (e7d72e)

  2. Dizzam.

    Speaking of hell, it hath no fury like a woman scorned, apparently.

    JR (646e8b)

  3. Mrs. Edwards was an attorney and considered to be much smarter than her husband. Perhaps because of her background AND meeting with well-informed counsel, she was able to testify in a legal manner that was either used to help law enforcement track down her husband’s illegal behavior and/or be used in a trial. Justice might actually prevail.

    J (2946f2)

  4. J good point. didn’t know she was a lawyer too.

    so she probably planned around all the concerns.

    Aaron Worthing (e7d72e)

  5. Back when I first saw that scene I figured that Khan was quoting from Moby Dick.

    I was at least partially correct, the section “to the last I grapple…” are from Ahab’s last lines, not sure where the rest of it comes from, but it does feel like a quote.

    LarryD (feb78b)

  6. Those lines and others were delivered by Gregory Peck in the movie, “Moby Dick”.

    Machinist (b6f7da)

  7. She was happy to help cover things up and protect him when he still had a shot at the Democratic presidential nomination. We wouldn’t be reading about any of this if they had succeeded, so it’s about sour grapes, not justice.

    Scrutineer (27df25)

  8. I’m with Scrutineer.

    The first thing she did after the scandal was confirmed was take to Daily Kos and lie about the situation. At that time, she still had hopes that she, at least, was going to speak at the Democratic National Convention.

    She was willing to go along with all of it as long as it benefited her.

    And Kos was willing to let her.

    MayBee (081489)

  9. What kills me about this is that John Edwards has a net worth of what? 9 figures? And he’s too cheap to spend HIS OWN $900K to buy off Rielle Hunter?

    That fact alone says a lot about him. The guy who rails about why the rich must be forced to dig deeper into their pockets went looking for someone else’s cash to do his personal dirty work. Dig deep yourself, chump.

    Gene (8da286)

  10. It’s a nice idea, Aaron, but can you identify the Federal Rule of Evidence under which it would be admissible, and the authority suggesting that its admission would be permissible under the Confrontation Clause?

    It’s hearsay — an out of court statement offered to prove the truth of the matter asserted (FRE 801). Even if it’s a sworn statement, since Edwards couldn’t cross-examine, it’s not admissible like a prior in-court or deposition statement. (FRE 801(d)(1).) The usual array of hearsay exceptions (FRE 803 and 804.) It’s not a “dying declaration” (FRE 804(b)(2)) because it’s not about the cause of her death.

    Because it’s not supported by any firmly grounded hearsay exception, its admission would almost certainly violate the Confrontation Clause.

    Sorry to be That Lawyer, but there you go.

    Ken (2e87a6)

  11. Oops, left a part out:

    All that shows why her video wouldn’t be admissible at trial. But it was perfectly admissible before the grand jury, because the grand jury can hear hearsay. But people seem to be suggesting — incorrectly — that she staged it to invoke some hearsay exception.

    Ken (2e87a6)

  12. ==Edwards has a net worth of what? 9 figures? And he’s too cheap to spend HIS OWN $900K to buy off Rielle Hunter?==

    Joint checking accounts with your wife can be a b*tch sometimes.

    elissa (1d49e1)

  13. Ken’s right. I don’t see how you ever get past Crawford. There may be admissible portions, but none of them could be offered for the proof of the matter asserted; no factual assertion made would be admissible to help prove that fact. I don’t know all the facts, but I doubt anything that would be admissible would be especially useful.

    The idea that she could do something to make factual assertions admissible seems misguided.

    She certainly could have left information that would help an investigation, though.

    –JRM

    JRM (de6363)

  14. ken

    there are exceptions that apply when a witness is simply unavailable.

    Aaron Worthing (e7d72e)

  15. Aaron:

    I know that. I cited them. I’m saying that they don’t apply.

    I mean, I’m not a federal criminal lawyer or anything, but . . . oh wait. 🙂

    Ken (2e87a6)

  16. Aaron:

    Read Crawford and Melendez-Diaz again. Ken is still right.

    –JRM

    JRM (de6363)

  17. I can’t think of any circumstance where anything left behind by Edwards could be used in the gov’t case-in-chief.

    BUT — a very clever lawyer, and she was one, could very well have created a statement which could be used in rebuttal if Edwards were to take the stand and testify. In that case the hearsay statements of Elizabeth would be used to impeach Edward’s testimony by showing that he made inconsistent statements at an earlier time, and not for the truth of the matter asserted.

    Use of hearsay evidence to impeach is always subject to Rule 403 analysis, but it would be hard to make a firm call before all the evidence is known.

    shipwreckedcrew (58dde3)

  18. Actually, I mispoke — the evidence could be used in CX of Edwards, not likely for rebuttal since that would be for the truth of the matter asserted.

    For example, Edwards might be asked if he ever said “XYZ” to his wife while she was alive. He can admit or deny having said “XYZ”.

    If he denies, it might be possible to get the impeaching evidence in rebuttal, but not certain.

    shipwreckedcrew (58dde3)

  19. shipwreckedcrew:

    I don’t practice federally, but it seems like FRE 501 (marital communications privilege) is going to entirely foreclose your proposed effort, and that’s before you get to other potential problems.

    –JRM

    JRM (de6363)

  20. The marital communications privilege would only apply to communications made in a circumstance where Edwards had some expectation that his communications with Elizabeth would not be disclosed. Given the state of their marriage following the disclosure of the affair, I doubt he could make that case — depending on the nature of the statements she recounts and when they were made.

    She would have possessed a spousal privilege in that she could not be compelled to testify against him. But, under the scenario described, she clearly has not asserted that privilege.

    shipwreckedcrew (58dde3)

  21. I know that courts have held that this type of thing – admitting the testimony of a dead person not subject to cross – doesn’t violate the Confrontation Clause of the Sixth Amendment, but I don’t get why it doesn’t.

    Brian (68dcfc)

  22. OK I made the preceding statement before I read the prior comments. So now I’ll read and learn.

    Brian (68dcfc)

  23. No, I’m almost certainly this is not something that would be admissible, certainly not if Edwards didn’t take the stand, and probably not anyway.

    See the discussion in Althouse’s post and comments.

    Beldar (a1d653)

  24. Meh … that’s overstating it. Let me amend that to say based on what I’ve thought of myself or read so far, I’m not persuaded it’s admissible.

    Beldar (a1d653)

  25. BTW, I also agree with Brother shipwreckedcrew: The spousal privilege could only be asserted by Elizabeth, if she were alive and wanted to. Otherwise wifebeaters would be practically immune from successful prosecution, no?

    Beldar (a1d653)

  26. “If he denies, it might be possible to get the impeaching evidence in rebuttal, but not certain.”

    This I don’t think I do agree with.

    If she were alive, you could call her as an impeachment witness to say from the witness stand the same thing she said in the tape.

    If she refused, you could ask her if she’d ever made a prior inconsistent statement.

    And if she denied that, then you could use the tape to impeach her.

    But the tape is just an out-of-court statement, and anything in it about what John Edwards ever said is double-hearsay. Even if there’s an “admissions” exception because he said something really damning, you still have the problem that the tape is an out-of-court statement, even if you could properly authenticate it.

    Beldar (a1d653)


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