Steve Palmer [00:00:00]:

Here we are. Lawyer talk off the record on the air, another edition of They Don't Teach You That in Law School. I got Troy here. Troy Hendrickson, works with me up in the law firm Palmer Palmer Legal Defense. And what we cover here are basically topics that Troy is learning about in law school, stuff that we, then deal with up in the real world and, like, street law that we do up there, criminal defense, and then try to take that even beyond that. So it's not you have to be a law student to enjoy this. In fact, I think we're getting a lot of, great feedback of folks who aren't even law students. Yeah.

Steve Palmer [00:00:31]:

Although, there is I just got a comment from somebody out in Pittsburgh that was listening or in, I think, Duquesne. That's Pittsburgh. Right?

Troy [00:00:39]:

Yeah. It's in Pittsburgh, I think. Yeah.

Steve Palmer [00:00:41]:

Stupid we are. So, anyway, we are, we cover various topics. And today, we happen to be working on a case, and you asked me about this. You know, know, what happens if trial come in in the morning from when we do these. I was wondering about why this is going on. So It

Troy [00:00:55]:

just keeps me up at night.

Steve Palmer [00:00:56]:

It keeps me up

Troy [00:00:56]:

at night. It keeps me up at night. Fascinated. Yeah. I'm just tossing and turning. I'm like,

Steve Palmer [00:01:00]:

I'm like, what Right.

Troy [00:01:00]:

What is the answer to this?

Steve Palmer [00:01:01]:

We'll get you an internship with Dershowitz next.

Troy [00:01:04]:

So the, the question was, we have a we have a crime we have a crime where the victim doesn't wanna come forward, doesn't wanna testify, whatever, doesn't really want the case prosecuted, but the state is still prosecuting it.

Steve Palmer [00:01:17]:

Right.

Troy [00:01:18]:

And then so in my head, it's not I'm not saying it's a victimless crime. However, if the victim doesn't wanna do it, why does the state now have the power to just say, yo, we're still gonna prosecute him. That's that's where I

Steve Palmer [00:01:27]:

use it. I hear terms like this all the time or comments like this. Well, the state's picking it up. We hear that. Yeah. And, you know, that's sort of common public vernacular, but it's not really accurate. I mean, the state is always picking it up if it's a crime. So let's start with that.

Steve Palmer [00:01:42]:

Who are the who are the parties in the lawsuit? Because a criminal prosecution is really just a lawsuit. And in Ohio, it would be the state of Ohio versus John Doe who's accused of the crime. If I sue you, it'd be Steve Palmer, plaintiff versus Troy Hendrickson, defendant in a civil case. So that's all it is. We're talking about the parties. And every time you have a crime, it's always the governmental entity, whether it's the US government, the state of Ohio, a mayor's court, or whatever town or city you live in. It'll be that entity versus the individual or sometimes even a corporation. Corporations can be charged with crimes.

Steve Palmer [00:02:18]:

So it you know, if you look at it from that perspective, it starts to make a lot more sense. It then it becomes about the evidence, and there's more nuance. We'll we'll dive into it. But, if the state is the plaintiff and they're trying to prove a crime against, say, you, the state needs evidence. A lot of times, into the mix is a victim. And, you know, we have victimless crimes. We were just talking about one off the air here. But, in the mix, we have a victim.

Steve Palmer [00:02:48]:

The victim is often the key evidence in the case. So if it's an assault, like the one we're working on, the person who is assaulted is going to supply the best evidence against the defendant. And now the question is, can the state prosecute the case even if the victim doesn't show up at court or doesn't wanna prosecute or isn't interested at all. And that's sort of the scenario you're talking about.

Troy [00:03:15]:

Yeah. And I understand that you're saying there's just two parties. How I view it is there is the main two parties, but then there's this little third party that is is evidence like you're saying. However, victims, I still are I I feel like are still technically a party of it. I mean, we've Marcy's Law or whatever, and I think they they should have some type of say. But I I do see what you're saying that the best evidence that they could have is the victim. Mhmm.

Steve Palmer [00:03:39]:

But if

Troy [00:03:39]:

they they if they have enough evidence without the victim, then

Steve Palmer [00:03:42]:

Yeah. No. Great. I I guess screw it.

Troy [00:03:43]:

But Great

Steve Palmer [00:03:44]:

point. We'll talk about the evidence evidence issues and whether the the prosecutor or the state rather can prove their case. But you brought up Marcy's law. In Ohio, we have some we have a constitutional amendment that it's a victim's right amendment, victim's rights amendment. And this is one of those things that always sounds awesome until it's actually implemented, and then there's some problems in the weeds. You know? In, you know, in general, we all like the idea that victims should be vindicated. They should have a say so on what happens, and that's a very popular position. But sometimes, it doesn't always go as the way the way the legislature or the voters wanted.

Steve Palmer [00:04:19]:

This is one of those cases. So if it is true that we are gonna give victims rights and say so in a courtroom, and what's happened is there's there's a huge push where prosecutors actually now anymore in modern times. And this is this is the shift has happened in my career over the last twenty nine years and change. Prosecutors now have to actually give notice to victims so the victims can show up in court and be heard. Most prosecutors will sort of push off decision and I say this with all due respect, but they push off decision making to victims where they'll tell me, look. I have to talk to my victims to see what they want. And I'm thinking to myself, wait a minute. Aren't you the state of Ohio? And this is just a witness? Well, no.

Steve Palmer [00:05:01]:

Now they're victims. We've elevated victims to a different status. Here is the dubious here here's where things get a little bit turned on their ear. What if the victim doesn't wanna prosecute? Then we're gonna hear something like, well, we don't have to do what the victim wants. Now if the victim so it's it's like one of these things where It's like

Troy [00:05:21]:

a little switch where they can turn

Steve Palmer [00:05:22]:

it on and off and, like, oh, this We will do whatever the victim wants as long as it's what we want.

Troy [00:05:27]:

Okay.

Steve Palmer [00:05:28]:

And then we will not only do that, we will rely on victim's input to make decisions and justify our decisions unless it's not what we want, and meaning unless it's not to prosecute. So it's sorta like those in favor of free speech. Well, look. I love freedom. I love free speech unless you don't agree with me. And then, you know, you should we should we

Troy [00:05:50]:

should curtail that speech.

Steve Palmer [00:05:51]:

And that's going on politically. But, yeah, it's like that happens. And this is where you gotta be careful. So if you're gonna give if the victims truly will have rights, then shouldn't I ask rhetorically the state respect when a victim doesn't wanna prosecute? Now there's a what's the counterargument to that? So you asked me about something. Yeah. You asked me about

Troy [00:06:11]:

I I think that the counterargument is

Steve Palmer [00:06:14]:

about a syndrome recently.

Troy [00:06:15]:

Yes. It was I think we're talking about, like, beating women syndrome. Is that Battered

Steve Palmer [00:06:19]:

women syndrome.

Troy [00:06:20]:

Syndrome. And the prosecutor would make the argument, well, she doesn't know what she actually needs. Like, she's

Steve Palmer [00:06:27]:

Yeah. We know better.

Troy [00:06:28]:

Yeah. We know better.

Steve Palmer [00:06:29]:

State knows better. Now that's a scary thought, frankly, but

Troy [00:06:32]:

But I we know better. And, you know, they could bring in experts on and say, like, hey. We're doing what's best for the victim. Like, we're trying to do the good thing here. So we we're just not gonna listen

Steve Palmer [00:06:42]:

to the So now it's time for my my, typical obscure movie drop. There was a movie called The Burning Bed made for TV, if I'm not mistaken, back in maybe I'm guessing '78, '70 maybe maybe '80. I don't know. Farrah Fawcett, I think, played a battered woman who, is based on a true story, I think, but she played a battered woman. She had been her abusive husband or boyfriend had been, physically and mentally abusing her for years. Finally, enough was enough. He beat her up, and he she waited till he fell asleep and lit the bed on fire, left the house with the kids and killed him. And, you know, the the question is whether that was an act of self defense based on this sort of, hangover effect of all the abuse over the years, and, you know, I'm not gonna go into detail about whether that's right or wrong.

Steve Palmer [00:07:31]:

But there is something like battered women's room, and and prosecutors will say and look. I mean, this victim is so, maybe call it, like, Stockholm syndrome. I don't know if you know what that is. But it is just so subject to this abuse that is, he or she had been have been accustomed to it and now will not prosecute on their own. So we need to step in and take over that role. We know better. Again, that's a scary thought, but there that's the argument for it. There and like anything in law, it all depends, and there's no there's never any sure right answer.

Steve Palmer [00:08:01]:

But,

Troy [00:08:02]:

you know like, that'd be like a case by case basis. Like, I'd have to I'd wanna know the amount of years, like, living together, like, the amount of events. Like, it you can't just automatically say because there's an abusive relationship. It's automatically bad women better women, I feel

Steve Palmer [00:08:17]:

like I'm not. And and there's law, at least in Ohio and I imagine elsewhere, there's law that says in order to establish something like battered women syndrome, you have to have an expert. There's gotta be an expert cycle. Psychology is gonna come in and say, yeah. I did an analysis. We ran these tests. We administered the blank blank blank blank blank, and, this person scored whatever. And I think that she qualifies or he qualifies as a battered victim, and, therefore, this.

Steve Palmer [00:08:44]:

You can't just the prosecutor can't just say it. Now but what we're talking about is really before that, the prosecutor's making decisions on whether to prosecute the case on behalf of, say, the state of Ohio. And that's what we're dealing with upstairs right now. Or at least the that's the question. Yeah. Is can the state prosecute when the alleged victim of a crime doesn't wanna pursue it? The answer is yes. Categorically, yes. It seems contrary, though.

Steve Palmer [00:09:08]:

This is where this is where I always get a little heartburn. And it it's it's it's not political. I I just I I

Troy [00:09:16]:

I got some Tums if you

Steve Palmer [00:09:17]:

need that. Tums. It always gives me a little heartburn. Because you get the state saying, alright. We're gonna we're gonna, ride Marcy's law to the dirt if this victim wants to prosecute, and we're gonna ask for max sentences if this victim wants that. And we're gonna we're not only that. We're gonna go to trial and not offer a a plea resolution, even though we think we might lose the trial because that's what the victim wants, because they really want that conviction. But if it's reversed, they won't do that.

Steve Palmer [00:09:46]:

And I'm not saying all look. I'm not impugning all prosecutors. There's lots of good ones. But I I run into this quite a bit. And, I I I even do some representation of alleged victims, and I've been on both sides. So under Marcy's law here in Ohio, victims have a right to a lawyer. And if I show up in court and tell a prosecutor, look, I'm representing the defendant's best friend or defendant's cousin. A lot of times, cousin's brothers get in fights over Thanksgiving or something.

Steve Palmer [00:10:12]:

I've had a few of those. This person doesn't wanna prosecute. They they got drunk. Somebody, lit the deck on fire because they were frying their turkey, and it got out of hand. And somebody called somebody an asshole, and next thing you know, there's a fist of cuffs in the backyard. And and they don't wanna prosecute it. The prosecutor says, sorry, Charlie. We're gonna do it anyway.

Steve Palmer [00:10:35]:

And it sort of irks me because I think if it were the opposite that the evidence was crappy and the prosecutor, didn't wanna prosecute it, but the victim says do it, they would do it. Yeah. So there's a double standard, I guess, is is really the problem. Let's say the prosecutor

Troy [00:10:50]:

goes Again,

Steve Palmer [00:10:51]:

not look. I'm not imputing all you people. So the this is gonna get cut out and say, he's saying that. I'm not. I'm just saying that's I run into that. And if you don't think I do, then you're not being intellectually honest.

Troy [00:11:02]:

So let's say the prosecutor goes to the victim's family and it goes to the victim and is like, hey. They wanna do a plea deal. Are you okay with five years instead of the max ten? I'm just making up numbers here. And they're like, no. We want the max. And the prosecutor turns around, still does the five year plea deal.

Steve Palmer [00:11:19]:

It happens.

Troy [00:11:19]:

And the family appeal Not yet. Okay.

Steve Palmer [00:11:23]:

Not yet. But they're gonna come into court and start banging the banging the table, and they have a right to be a court and say, we don't agree with this. And the prosecutors, they're gonna have to say, well, I'm doing it for a reason, for evidentiary reasons. And and this is why we have, I think I think the danger of this is when taken to its extreme, we end up placing prosecution in the hands of interested parties. And, look, I'm not I'm not diminishing what it's like to be a victim of a crime. It's horrible. I've been a victim of a crime, and it's it's not that. But, you know, Abe as Abe Lincoln famously said, he represents represents himself as a fool for a lawyer, and it's not unlike that here.

Steve Palmer [00:12:03]:

We don't want victims prosecuting the crimes. Then then we get in fact, we had a comment on one of our our other episodes, an eye for an eye. It starts to reduce to that, and there's a reason we want the state we wanna run it through the state's filter. Prosecutors know cases that they can prove and not prove. They know they know what is right and wrong most of the time. But the more we we inject these other interest into it, we are creating generation after generation of generation of prosecutors who don't do that stuff. You know, they've never had to evaluate a case independently of what a victim wants. And, again, I'm not criticizing.

Steve Palmer [00:12:38]:

It's just this is what's happening. This is what's happening. And prosecutors should have independent discretion to make decisions, and good prosecutors will do this. Good prosecutors will say, look. And I've heard him say it in chambers with judges. Look, judge. I I need to have a meeting with my victims and explain to them the problems with the case. And I'm just gonna tell them that I can't prove the case.

Steve Palmer [00:13:00]:

But all too often, maybe the opposite happens where the victim is saying, look. Five years is good enough, and the prosecutor is saying, why don't we? I think eight is probably better. I think this case is worth eight. Alright. Well, if that's what you say. You know, you can just see it you can just see it going in that direction, and that's where the danger is. So like all things, like all government policies and practices, it can it can go in an unexpected direction. And we might get unintended consequences.

Steve Palmer [00:13:28]:

Now there's some evidentiary issues, I think, was what we were getting at. Let's say the victim doesn't show up or doesn't wanna prosecute and says, I'm not cooperating. In Fact, I'm gonna we had a case. We did an appeal recently where, one of the victims just got on the stand, said, I'm not testifying. I'm taking the fifth. Yeah. Alright. So can the prosecutor still prove the case? Maybe.

Steve Palmer [00:13:50]:

Here's where it gets interesting because it's we're almost shifting into a whole another topic. We'll just do it anyway. Mhmm. Here's where it gets interesting because, look, everybody who's watched Matlock, Murder, She Wrote, what's the probably Suits now is another big lawyer suit.

Troy [00:14:02]:

Suits is the big one everybody watches now. They actually just, like, reboot it with, like, LA version. So, like, Suits New York was the one everybody watched, and now they're doing it again. I'd I think I watched the original Suits, like, live. My mom made me. I was a kid. You know? So And you were I I dabble. I dabble with it.

Steve Palmer [00:14:15]:

Alright. So, look, I remember Perry Mason reruns, and then Matlock and was a was the sort of the the modern Perry Mason. In in Perry Mason and Matlock, there's always this famous moment where, during the thundering cross examination by the defense lawyer, whether it'd be Perry Mason or Matlock, somebody said, you're right. It was actually me. I did it or, you know, you get in in fact, my former partner, Eric Jovich, god rest his soul, he got we used to call it a matlock. If you get the victim to basically recant on the witness stand, we'd call it a matlock, and he got one. I've never had one exactly like that, but he got one one time. No.

Steve Palmer [00:14:54]:

You're right. I I actually don't I can't recognize this guy. So, you know That'd be amazing. It was a Matlock.

Troy [00:14:59]:

Yeah. Imagine the jury was like, wow.

Steve Palmer [00:15:01]:

And everybody's thinking, what does this have to do with victim's rights and somebody showing but here's the thing. If I'm being prosecuted as a defendant for a crime and the person who's accusing me of the crime is not in court, I don't get to have a Matlock moment. I don't get to ask that person questions. I don't get to cross examine that person. I don't get to confront that person. Any government you're a government scholar? Confrontation clause. Confrontation clause is sixth amendment. I was gonna put you on the spot and see if

Troy [00:15:27]:

you knew the system.

Steve Palmer [00:15:28]:

So the sixth amendment to United States constitution guarantees, among other things, your right of confrontation, also trial by jury and, and and counsel. But it's but, anyway, your right of confrontation is I get to confront my accusers. That that is interpreted as I get to question my accusers, the witnesses against me in a courtroom, and my lawyer gets to ask leading probing questions. Why pray tell would we need such a thing?

Troy [00:15:57]:

Is that, like, because back in the day, common law, like England, they would have just accused your crimes. You couldn't even, like, confront them. Like, it was just say, hey. Here's what you're accused of. You're guilty.

Steve Palmer [00:16:06]:

But yeah. Because we can't trust the government. Yeah. You know, look. We don't trust the government. And anybody who does, then think twice. Because, look, the government is made up of people, and people are made up of our own inherent flawed, human characteristics, whether you believe in in that biblically or whether you just can watch it. Like, we are all flawed.

Steve Palmer [00:16:25]:

We all have this thing called ego. We all have this thing called, self, and we have this self interest. And prosecutors are no different. I wouldn't expect a pro like, we we put a lot on prosecutors to go into a courtroom and actually say, my job is to do justice. I'm gonna do what's right. But I'm gonna have to do what's right in the context of this fight, this adversarial fight, which sometimes, if you take it to its logical extreme at times, it means they have to give up. They can't shoot all the bullets in their gun. I mean that metaphorically.

Steve Palmer [00:16:56]:

They can't use every tool at their disposal because their job is to do justice and protect the defendant's rights. And I hear I even had a federal case where a federal judge was saying, well, this is gonna violate the government's due process rights, and I went ballistic. The government didn't make due process rights. We do. Like, the constitution doesn't protect the government from us. It's the opposite. And that's why we have something called confrontation. And our the US Supreme Court, I should look up the quote or the case, but the US Supreme Court has talked about confrontation for years since in since the founding of our country.

Steve Palmer [00:17:28]:

And they have said it's almost an exact quote, but I'll see if I can get it right. Cross examination is the greatest legal engine ever invented for the discovery of the truth. Meaning, we can't trust the government nor should we. Doesn't mean they're bad. Doesn't mean prosecutors are bad. But are we recognize inherently as a system that we can't trust the government to present both sides of a case. So we have to give the defendant the ability and protect the defendant's ability to present his side of the case. That means confrontation.

Steve Palmer [00:18:02]:

I get to ask that witness on the stand, yeah, but you didn't see this, and you like, think cousin Vinny, my cousin Vinny. Your glasses needed an update. This was too far away, and you couldn't see. You know, the I think his girlfriend is

Troy [00:18:19]:

the expert witness to it.

Steve Palmer [00:18:21]:

It's awesome. My cousin Vinny is awesome. Look. I mean, there's lots of stuff that's unrealistic, but it is awesome. It's a great lesson in trial lawyer and the right of confrontation. It also is a great lesson in another right that we have, which is called the, the right to compulsory process. We we also incumbent in our rights under the sixth amendment is actually subpoena witnesses to come testify for us. So in My Cousin Vinny, they bring in the expert who happens to be his girlfriend.

Steve Palmer [00:18:46]:

Yeah. Right? Yeah.

Troy [00:18:48]:

Right. She's she's very well qualified, though. She did a great job.

Steve Palmer [00:18:50]:

Right. She was great. And we we should we'll do a breakdown of that. But, anyway, the point is is that when the prosecutor or the state is choosing to go forward on a case without a victim, I don't have a right of confrontation. Now that doesn't automatically render the case void or or, automatically say that, I win as a defendant, But it definitely creates some problems. And

Troy [00:19:15]:

Your I mean, your main evidence is it's gone now. Well, it's not gone. It's a lot harder to use it now. There's just they gotta find a way to They

Steve Palmer [00:19:25]:

have to prove the case without the victim. Now let's talk about ways they can do that. So we don't have a victim coming into a courtroom and saying, Troy did this to me. Met so he followed me in my car and whacked me with his tire iron because he, wanted to steal my wallet, and I recognized Troy. So you're not you don't wanna prosecute because you were you knew I was just joking or whatever it was, or you knew he was just so, you're not gonna prosecute. You're not showing up in court or whatever. Maybe maybe you're just they couldn't find you. How do they how does the state prove its case? Well, maybe there's witnesses.

Steve Palmer [00:19:55]:

So if there's a witness that says I saw this happen, I recognize that guy, and that was him, and he did it. Fair enough. The prosecutor is not relying on what you say. They're relying on what somebody else says, and I get to cross examine that person. Say there's a video evidence or video surveillance camera that picked it up, and it's on tape. Same thing. I can challenge. I can dispute.

Steve Palmer [00:20:15]:

I can call experts to say that's not accurate. I can challenge that video. But we'll say none of those things exist, And the prosecutor wants to prove the case based on what the what the victim says, what what the accuser actually said out of court. Accuser goes calls 911 and says, man, I this guy, I know him. He's my best friend. He just whacked me on the head with a tire and stole my wallet. His name is Steve Palmer, just perfect description. This is who he is.

Steve Palmer [00:20:49]:

And now that person changes his mind, or maybe it isn't available and doesn't testify in my trial. I don't get to cross examine that statement. I don't have a witness there to cross examine. That's where problems arise. How's it how's it resolved?

Troy [00:21:03]:

I think how it resolves is they just have a lot weaker case. I mean, there is exceptions to try and get their statements and everything in. I mean, that's what we're going through upstairs right now. But, I mean

Steve Palmer [00:21:15]:

Alright. So there's you're you're really bringing up two separate things. One, the case against the defendant is a lot weaker. I mean, the jury's gonna Yeah. Have to decide the case without the testimony of the star. Mhmm. And I think the reason the star is not there is gonna be important, and it may not be what everybody thinks. It may just because the witness like, you get a battered woman who doesn't come to court, and the jury is gonna I think, you know, juries are smart.

Steve Palmer [00:21:36]:

They're gonna catch wind of that, and they're gonna say, yeah. It makes sense. She's not coming to court because this guy's doing this day in and day out. Yeah. So we don't care that she's not here. In fact, we feel worse for her that she's not here, and we're gonna be more likely to convict. But maybe in another scenario, it might be that, alright. Well, this alleged victim

Troy [00:21:51]:

is Is the prosecutor I'm sorry. Is the prosecutor just allowed to say, of course, the victim didn't show up?

Steve Palmer [00:21:56]:

Not without evidence, and it's gotta be relevant. So Okay. Sometimes, sometimes not. You know? Because I mean And we have to the defense would have to be careful not to open the door to that, but, meaning bring up something that would permit the prosecutor to refute our argument. So, you know, if the if the victim's not there, a jury but they're gonna get the hint. Right? In a domestic violence case, the jury's gonna think, well, of course, she doesn't wanna be here because that's that's the trope. The vic you know, they they they're batter they they don't wanna prosecute. They've they've been overcome by this constant abuse.

Steve Palmer [00:22:29]:

But there might be a flip scenario where it's not so clear, and the the jury may think on a different scenario that, boy, if this guy in this case can't doesn't have the wherewithal to actually come in, that's too weak for us. So there still has to be proof beyond a reasonable doubt is what you're getting at. And the jury has to be convinced beyond a reasonable doubt. And just because there's evidence of it doesn't mean they have to believe it. They may want more evidence to be firmly convinced. But there's another issue, and that's the confrontation issue. And and can the court even admit the statements without the witness testifying? And this is where the US Supreme Court, I I don't know, starting with a case called, Crawford v Washington back in February.

Troy [00:23:10]:

Sounds about right. I've read it a lot.

Steve Palmer [00:23:13]:

They said, look. Hearsay. So everybody knows what hearsay is. Not a everybody thinks they knows what hearsay is. They think think they know what hearsay is. Not a court statement, that that is offered to prove what the statement says. So, you know, this is the guy who did it. So the prosecutor is gonna offer that statement.

Steve Palmer [00:23:28]:

And since we don't have a witness actually saying and it's made out of court, it's hearsay. And, or since and I it's hearsay whether the witness shows up or not, but if the witness doesn't show up and not only is it hearsay, I don't get to cross examine that person. So now we have a hearsay problem, so there has to be an exception. There are lots of them as you're learning. Yeah. Like a statement for medical diagnosis or treatment, out of court statement. If the person is making that statement to doctors to get treatment, well, it's coming. It's not hearsay.

Steve Palmer [00:23:56]:

Excited utterances, present sense impression. There's lots of them. We won't go into them. But assume there's one that exists. Now it's hearsay, but it's coming into evidence. I still don't get to cross examine it. And the US Supreme Court is sort of slowly over the years honing in on this issue and reviving a defendant's right of confrontation in that scenario. So it gets really dicey for the prosecutor about whether they, the state, can pursue a case based solely on hearsay evidence by a victim who's not or a witness who's not testifying in court.

Troy [00:24:32]:

The state has to go over two speed bumps. The first one, they have to get over the hearsay issue.

Steve Palmer [00:24:36]:

Has to get in first. Right? Yep.

Troy [00:24:37]:

And the next speed bump is is it a compensation clause issue?

Steve Palmer [00:24:41]:

Yep. And they can

Troy [00:24:41]:

get over about the speed bumps.

Steve Palmer [00:24:43]:

So what they don't teach you yeah. You're exactly right. Yeah. That's a that's a great way to put it, calm speed bumps, their hurdles. And what they don't always teach you in law school is this. When and I learned this early on. If I'm in a courtroom and you hear objection, hearsay, I always, even before Crawford v Washington, I always would say objection, hearsay also violates my client's right of confrontation, because immediately and that that wasn't always obvious back in the day because in the old law before Crawford, it just says, well, as long as it's a firmly rooted hearsay exception, doesn't matter. But I always said That's kinda crazy.

Troy [00:25:19]:

That's that's how it was. Mhmm.

Steve Palmer [00:25:20]:

You just wow. Yep. Didn't violate confrontation. But I learned from an old war horse who was an expert in federal and state evidence for the better part of his life, still alive, my father, who was an evidence professor. I learned evidence at the dinner table. And every time you object on hearsay, you also say confrontation. I don't care if the witness is there or not. I still say confrontation.

Steve Palmer [00:25:42]:

Judge is why? Because it's a habit. Judge is gonna say, well, the guy testified. You can cross examine. I don't care. It's still confrontation because I say so. Deny my objection if you must. Because I'd rather have the objection and be wrong than not have the objection and be wrong.

Troy [00:25:57]:

Yeah. I mean, whoever does the appeal will appreciate it. That's for sure.

Steve Palmer [00:26:01]:

So, anyway, a great question. Because they and look. You know, you're learning about hearsay in law school. What they're not teaching you is that these rules that you're learning have real life applicability. In fact, I think your teacher even said, oh, you'll never use it. You'll never use Yes. Yes. You'll never use medical diagnosis or treatment statements in real life.

Steve Palmer [00:26:17]:

I do it every day. Yeah. Because victims of crime go to the doctor. Mhmm. And they they say, doc, this guy punched me and broke my orbital socket, and here's the medical treatment I got. And the doc's gonna say, what happened? And the the the person the victim is gonna say, well, I was at a bar, and I was walking to my car, and somebody out of nowhere came up and socked me in the eye and broke my orbital socket. Are those statements are the facts behind that for the purpose of medical diagnosis or treatment? You might be surprised how broad that goes, but maybe. And so those statements are now they could form the sole basis for the prosecution or at least corroboration of what somebody says on the witness stand.

Steve Palmer [00:27:02]:

So it is a critical exception.

Troy [00:27:03]:

We would need to do, like, a whole episode on this whole medical exception and the conference confrontation issue. Right here.

Steve Palmer [00:27:10]:

I, I I used to look. I used to We

Troy [00:27:11]:

we just need to do primary purpose episode. That's what needs to happen. Like, it just needs to

Steve Palmer [00:27:15]:

We we I used to I give I still talk at seminars and and sort of teach There's there's evidence that you learn in the in class, and then there's trial evidence, and they're totally different animals. Now the thing is, though, you have to master the rules first. Become a master of the rules and understand the academics, and then you get to do the fun stuff. Like, how do you apply those rules? How do you get creative? Where where are the where are the snakes in the grass? But, anyway, that's a whole different episode. But great topic. And, if you folks have a topic you want us to cover, maybe you're a law student because I know that we have growing it's like the we got the law school army starting to follow us. And if you're in law school, you want us to cover something that they don't teach you in law school or you think maybe we're learning up or that you were covering upstairs in the law practice or you just want some real world insight into it, I'll give it to you. I'm not always right, but I try to be.

Steve Palmer [00:28:02]:

Just shoot us a comment, lawyertalkpodcast.com. Shoot us a question there, comment in the socials, and we'll get to it. But until then, this is lawyer talk off the record, on the air. They don't teach you that in law school style till next week.