Dispatches from the Creation Wars

Amusing Objection in Dover Trial

The ACLU-PA blog records a rather amusing objection by the Thomas More Law Center attorneys yesterday. One of the plaintiffs in the case, Mrs. Eveland, was on the witness stand and was being asked about school board meetings that she attended where the ID policy was being discussed. This was the meeting at which school board member William Buckingham asked, ’2,000 years ago someone died on a cross. Isn’t someone going to take a stand for him?” while encouraging the board to find a textbook that wasn’t “laced with Darwinism”.

Mrs. Eveland wrote a letter to the local newspaper after that school board meeting and the plaintiff’s attorney asked her if she would read that letter out loud in court. The TMLC attorney objected, calling it “hearsay”. The judge listened to the attorney and asked, “Who wrote the letter?” The attorney answered, “She did.” “Overruled,” said the judge. It doesn’t sound to me like the attorney understands what “hearsay” is.

Comments

  1. #1 Dave S.
    September 29, 2005

    It is possible to commit a hearsay infraction against yourself, isn’t it?

  2. #2 Dan
    September 29, 2005

    Now that’s funny.

    I went to the ACLU site and read a comment from someone who said, essentially, the lawyer probably isn’t that inept; it must have been a tactical move of some sort.

    Yeah. When you’re about to get hammered with evidence you really don’t like and you don’t have solid ground on which to object, make a frivolous objection. That way, just in case the judge wasn’t paying attention, you can be sure he will now, and he’ll know just how bad the evidence sucks for your side.

    Great tactic.

  3. #3 Ed Brayton
    September 29, 2005

    Dan-

    It’s like the great scene from A Few Good Men where Demi Moore’s character objects to the testimony of the doctor and is overruled.

    “Your honor, we strenuously object.”

    “We strenuously object? Is that how it’s done? We object! ‘Overruled.’ No, you don’t understand, we strenuously object. ‘Oh, well if you strenuously object, I’ll reconsider.’”

  4. #4 Ed Brayton
    September 29, 2005

    Oh Dan, by the way, you might be interested in this. The TMLC did attempt a Daubert challenge against Barbara Forrest, but it failed. Now the DI is citing portions of the discussion of that challenge, wherein the judge agrees that some of the unattributed quotes in her book and her initial expert report would not be admissable and telling the plaintiff’s attorneys that they need to “contour” her testimony to avoid areas that might lead to lots of objections. The DI is citing that to discredit her testimony before she even gives it. I hope to have the order rejecting the Daubert challenge shortly so I can cite the judge’s final conclusions allowing her testimony.

  5. #5 Dave S.
    September 29, 2005

    From the film Liar, Liar –

    DANA: With the court’s permission, I would like to play a tape.

    FLETCHER: Your Honor, I object!

    JUDGE STEVENS: And why is that, Mr Reid?

    FLETCHER: Because its devastating to my case.

    JUDGE STEVENS: Overruled.

  6. #6 raj
    September 29, 2005

    Um, this is funny as heck. The TMLC lawyer was totally unprepared. He should have known that she was the author of the letter she was reading. A decent civil trial lawyer learns, during discovery, virtually all of the details of the opponent’s case. If the TMLC lawyer did not know that the witness was the author of the letter, he is incompetent.

  7. #7 Dan
    September 29, 2005

    Ed: Yeah, that scene from “A Few Good Men” is funny, as is the one from “Liar, Liar”. As to the Daubert challenge to Forrest’s testimony, making the challenge is a pretty standard pre-trial matter. I’d be surprised if our side didn’t make similar challenges to TMLC’s experts. If you get the pre-trial transcript, let me know.

  8. #8 Ginger Yellow
    September 29, 2005

    “I went to the ACLU site and read a comment from someone who said, essentially, the lawyer probably isn’t that inept; it must have been a tactical move of some sort.”

    I’d have thought the ACLU would know how inept the TMLC is, at least when it comes to fighting religious establishment cases.

  9. #9 Ed Brayton
    September 29, 2005

    Dan wrote:

    I’d be surprised if our side didn’t make similar challenges to TMLC’s experts.

    In fact we didn’t, and I was surprised to hear that as well. I was told that there was a good deal of discussion about it, but that the Pepper Hamilton attorneys really felt it was unnecessary. Heck, the experts from the other side did a fine job of eliminating themselves!

  10. #10 Ed Brayton
    September 29, 2005

    By the way, we do have all of the pretrial motions and rulings available. Some of them have been made available on the NCSE’s Kitzmiller page, but the rest are available if needed. That’s how I got the text of the judge’s ruling on the Daubert motion. The NCSE is collecting every bit of information they can to document this project. I can’t think of a case where more background information was available publicly, from the motions to the expert witness reports to the briefs filed on both sides. All of that is public information, of course, but rarely is it made available so easily.

  11. #11 Dan
    September 29, 2005

    In fact we didn’t, and I was surprised to hear that as well. I was told that there was a good deal of discussion about it, but that the Pepper Hamilton attorneys really felt it was unnecessary. Heck, the experts from the other side did a fine job of eliminating themselves!

    I agree that the creationist experts have done yeoman’s work taking themselves out of the case. And it has been amusing to watch.

    Nevertheless, I’m shocked by the lack of Daubert challenges. You always make the record, just in case, so you’ve got something to take up. A very bold move by the Pepper Hamilton attorneys that I’m not, of course, in any position to second guess. But it does make the old trial lawyer in me cringe…

  12. #12 maurile
    September 29, 2005

    The letter was hearsay if it was offered into evidence to prove the truth of its content, so the objection isn’t necessarily as silly as it sounds, depending on context.

    The letter itself wasn’t made under oath, so it is hearsay. It’s easy to get around that hearsay problem, however: all the witness has to do is affirm that she wrote the letter and that its content is true. When she does that, she is adopting the letter’s statements while she is testifying under oath, so a hearsay objection to the letter would be silly.

    If she hadn’t adopted the statements, however, the objection may have made sense (again, depending on context).

  13. #13 Hyperion
    September 29, 2005

    This is the same lawyer said in an interview that “this case isn’t about religion,” despite the fact that he was trying it for TMLC? This new objection really doesn’t surprise me after that.

    This is the problem that the creationists will always run into with these court challenges: substandard goyische lawyers.

  14. #14 raj
    September 30, 2005

    maurile at September 29, 2005 06:19 PM

    The letter was hearsay if it was offered into evidence to prove the truth of its content

    I beg to differ. The letter might be considered hearsay if the author of the letter was not on the witness stand and available for cross-examination. After the witness admitted that she was the author of the letter, it was fairly evident that she would be available for cross-examination of the contents of the letter, after it had been read into the trial record. The crux of hearsay is the availability of the original author for cross-examination (loosely speaking).

    There are a number of exceptions for the hearsay rule.

    BTW, given the fact that the author of the letter was on the witness stand, if the opponent’s lawyer did not want to cross examine her regarding the contents of the letter, is particularly telling. It’s virtually an admission that the contents of the letter were correct.

    BTW2, this procedure would be little more than a lawyer handing a document to a witness that had been generated by the witness, and asking the witness to admit that he/she had authored the document. There’s no difference.

  15. #15 maurile
    September 30, 2005

    I tried to link to FRCP Rule 801 above, but the link didn’t work. Here’s the URL.

    http://www.law.cornell.edu/rules/fre/rules.htm#Rule801

    (See also the notes for subdivision (d)(1).)

  16. #16 spyder
    September 30, 2005

    Is this why the DI people wanted to make sure they each had their own attorney’s with them???