[supercat]

I suppose you have a better way to resolve the case? Care to share with the class?

Well, for starters, I would suggest that oral statements should generally not be "clear and compelling" in the absense of anything to authenticate them (such as a videotape, etc.) It is trivial for an unscrupulous person to attribute to people things they never said. There may be a few cases where an oral statement could constitute clear and compelling evidence, but only if all of the following apply:

1. The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible.
2. There is consensus about what was said and what was meant, the statements were clearly intended to serve as a living directive, and the claimed meaning is plausible.
3. There is a logical reason why the person making the statement was unable to personally put it into tangible form.
4. The statement is disclosed to people who can officially record it as quickly as practical.

An example of a case where purely oral statements might constitute clear and compelling evidence would be a train wreck, where an injured passenger tells others of his wishes prior to losing conciousness. In such a case, if the other passengers were to report what the passenger said as quickly as practical to officials, I would say such statements could be regarded as 'clear and compelling' evidence:

1. Unless the other passengers conspired to cause the crash, they would seem an unlikely group to conspire to invent a story.
2. There would be little confusion about the person's statements or the purpose thereof.
3. The person's decision to give the statement orally rather than writing or recordig it would be clear and logical given exigent circumstances.
4. The witnessess to the statement would be able to report it in timely fashion.

As you can see, I wouldn't outlaw all non-recorded oral statements, but I would only allow them in places where there would be no reason to doubt them. Let's see how Terri's "wishes" stack up:

1. Her wishes were heard by an openly-adulterous husband, his brother, and his sister-in-law. One of them had a very clear and obvious conflict of interest, and conspiracy by the others is highly plausible.
2. The three people witnesses Terri's claim that Terri spoke to each of them at a different time; there is thus zero corroboration. There is no particular reason to believe Terri's statements--if she made them--were meant to be enforceable as a living will. At the time Terri's statements were made, hydration by any means was not considered life support and therefore a claim that she intended them to justify the removal of same would seem implausible.
3. There is no logical reason why, if Terri wanted her supposed wishes carried out, she could not have written them down.
4. The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made.

Do you think my criteria for accepting oral statements are too rigid? Terri's siblings' hearsay testimony fails all of them.

[robertpaulsen]

Well. That took some some work. Thank you for your effort.

Naturally, my first reaction to your 4-point criteria is that it was designed around the Terri case (ie., working backwards to achieve the desired result). Basically, it does nothing more than detail your version of "clear and convincing".

For example, let's take your #1. "The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible."

Now read just the "Saturday, April 2, 2005 of this link to see that Judge Greer evaluated the oral evidence with this in mind.

"In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence."
-- from the above link

It's an interesting link. On your #2 about removing tubes as implausible:

"... and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise ..."

I don't agree with your #3. I don't think there needs to be a reason.

#4 "The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made."

True. But why would they be recalled any sooner. For what purpose? It wasn't until Michael requested the court to determine Terri's wishes that it was necessary to recall Terri's statements.

As to the charge that by waiting seven years, Michael was not acting in good faith, Judge Greer said it the best: "That assertion hardly seems worthy of comment other than to say that he should not be faulted for having done what those opposed to him want to be continued."