Quote:
Originally posted by Hank Chinaski
You do have a court saying, based upon testimony, we believe she did want to die. But there is a huge problem with hearsay. "State of mind" doesn't answer that- SOM isn't an exception if it is the ultimate issue, and plus the SOM months or years earlier is of little value here. Of course evidence decisions are for the courts, but this one seems pretty suspect.
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Your points are legitimate -- but your statements about the SOM hearsay exception under FRE 803 [or the state equivalent] are incorrect. You also seem to miss the point that even a written living will is no more than hearsay evidence of then-existing state of mind. [Though it is much more reliable hearsay because it is written, notarized and signed.]
In the absence of evidence that one has changed one's views -- by either revoking a living will or, in the absence of a document, making contradictory verbal statements at a later date -- the most recent evidence of state of mind is properly presumed to hold. I think that is the right result.
I'm not in favor of a system where one must be sustained forever (unless everyone quietly agrees to secretly pull the plug). We had that already. I also think that, while a written directive is to be strongly encouraged -- it should not necessarily be required. Thus, we're stuck with messy fact-finding situations.
S_A_M
