Ok you fellow lawyers, what if Izzy Switt videotaped a "Dying Declaration" telling his sto
SanctionII
Posts: 12,510 ✭✭✭✭✭
Who knows how legally astute Izzy Switt was in his later years and whether or not he planned for the day when a legal contest over his 10 1933 Saints would take place. Imagine if he did so plan.
It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
The legal fight between the government and the Langbords over the admissibility of Izzy's "Dying Declaration" would be huge and full of drama.
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie].
For all you lawyer forumites, what do your think of a possible Dying Declaration from Izzy?
It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
The legal fight between the government and the Langbords over the admissibility of Izzy's "Dying Declaration" would be huge and full of drama.
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie].
For all you lawyer forumites, what do your think of a possible Dying Declaration from Izzy?
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Comments
Any lawyers, or for that matter, anyone else want to chime in?
When the Mint made these coins, some were handed out by a cashier, right?
If so, when they left the Mint thru normal channels, doesnt that make the Gov's case harder?
If not and if my question is one of the rare "stupid" questions, Im sorry and forget I asked.
Also looking for VF-EF Seated halves.
Sell me your old auction catalogs...
If a relative was present when Izzy made his "Dying Declaration" video, the testimony of the relative about what Izzy said would not be admissible evidence to prove what Izzy said (the relative's testimony would be hearsay, which is generally inadmissible). However the relative's testimony would be admissible evidence that could lay an evidentiary foundation to support the admissibility of Izzy's "Dying Declaration" video (which is admissible as an exception to the hearsay rule). The testimony of the relative would be used to prove that Izzy's "Dying Declaration" video is in fact what the person seeking to introduce it into evidence says that it is. The relative's testimony about the when, where, who, etc. surrounding the creation of the video tape is admissible evidence to support the fact that the tape is what is purported to be.
I still find my head swimming when I consider the legal rules of evidence
Didn't wanna get me no trade
Never want to be like papa
Working for the boss every night and day
--"Happy", by the Rolling Stones (1972)
It is possible that the 1933 Saints could have left the mint legally and it is possible that the 1933 Saints could not have left the mint legally.
The interesting issue in the Langbord lawsuit is who has to prove what. The trial judge will decide if the Langbords have to prove that the 1933 Saints left the mint legally; or if the government has to prove that the 1933 Saints did not leave the mint legally. Whoever the judge determines has to prove something will have a difficult time doing so since no person is alive who can testify as to what happened and the introduction of documentary evidence will also be a probelm given multiple legal grounds upon which to object to the documents.
In other words, when the trial starts, will the court assume that the coins left the mint legally (in which case the government would have to produce admissible evidence that the coins did not leave the mint legally) or will the court assume that the coins left the mint illegally (in which case the Langbords would have to produce admissible evidence that the coins did leave the mint legally).
The major fight that will take place in the case is ove the issue of who will have to prove things.
Your instincts are pretty good for a lowly tax lawyer. The videotape (or other form of evidence of the content of the declaration) would be inadmissible because the so-called "dying declaration" exception to the hearsay rule applies only when the statement concerns the cause or circumstances of the impending death.
Thank you Sanctions11 for that quick and informative response.
One last question as you seem to know alot about this situation.
Why should the Longboards have to prove they left legally? Shouldnt the burden of proof fall with the Mint, after all they screwed up(potentially)?
I knwo things are always that simple, but it seems like that would be the fair way to go about this. Right?
Also looking for VF-EF Seated halves.
Sell me your old auction catalogs...
In this case I would NOT expect the dying declaration to to hold up as an exception to the hearsay rule, because he would have a motive to lie (i.e. leave a fortune to his heirs).
Still, I doubt that it would make much difference if Izzy were a saint, and he told the truth through out his entire life. The Federal Government is determined to confiscate these coins or take a huge chunk out of their realized selling prices. For that reason I don’t expect things to work out very well for the family regardless of the evidence.
Posession being "nine-tenths of the law", intuitively it seems like the party bringing the suit would have the burden of proof.
I agree w/Sanction that whoever has the burden of proof in the case will lose.
<< <i>Put in its simplest form the fact that there was a indeed venue for the coins to have left the mint facility legally, in my mind shifts the burden of proof on the guvmint to show that they didn't. >>
There are few burdens of proof for the government unless there is an independent judiciary. The government sets the rules and then does what it pleases. Unless a judge takes up for the issue for the family, those coins are toast so far as the family is concerned.
Franklin D. Roosevelt was a very good president, but he was also a very arrogant man. He set these rules, and the government is not going to back off especially since the government does not care about how much money they waste in this case. You can take that to the bank.
<< <i>
<< <i>especially since the government does not care about how much money they waste in this case. You can take that to the bank. >>
Isn't that the depressing truth.
Proud Participant in Operation "Stone Holey" August 7, 2008
<< <i>It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
...
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie]. >>
If Izzy Switt did make such a recording before his death, the recording would not be admissible because it is hearsay unless it could fit under one of the hearsay exceptions. As you mention, there is a dying declaration exception, but for the exception to apply in this case, it would have to be made while under the belief of impending death and concerning the cause or circumstances of the cause of his death. So unless he was on his death bed and was telling a story of how he was killed by the coins, the tape would not be admissible.
However, there are other hearsay exceptions that might work, such as a recorded recollection or a statement in an ancient document (older than 20 years). This is assuming that the tape could properly be authenticated.
-Fuzz
<< <i>
<< <i>It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
...
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie]. >>
If Izzy Switt did make such a recording before his death, the recording would not be admissible because it is hearsay unless it could fit under one of the hearsay exceptions. As you mention, there is a dying declaration exception, but for the exception to apply in this case, it would have to be made while under the belief of impending death and concerning the cause or circumstances of the cause of his death. So unless he was on his death bed and was telling a story of how he was killed by the coins, the tape would not be admissible.
However, there are other hearsay exceptions that might work, such as a recorded recollection or a statement in an ancient document (older than 20 years). This is assuming that the tape could properly be authenticated.
-Fuzz >>
This is what I was thinking as well. The Dying Declaration exception has certain formalities/rules attached to it. It's not a wide open exception and absent some explanation of the circumstances surrounding the tape then I say inadmissible.
Ancient Documents- aren't there only a few types that qualify?
Gosh, I liked Evidence back in the day but I'm glad I don't have to remember it now. Rule Against Perpetuities? I have to lie down now...
All of the lawyer stuff aside, it would be interesting indeed if somehow, somewhere there was a 'firsthand" recording of how he came by those Double Eagles...!!
Chicolini: Mint? No, no, I no like a mint. Uh - what other flavor you got?
However, now that the topic of the Dying Declaration exception to the hearsay rule has been talked about in this thread, I am sure that the next case that comes in my door will result in me having to deal with it.
No one to blame but myself. Guess I should go look at the evidence code and case law on the subject to learn the arcane details of same.
COOL THREAD!!!!!
Thanks for posting it!
<< <i>The replies to this thread copmmenting on the limited circumstances that would allow the Dying Declaration exception to the hearsay rule come into play illustrates how long ago (fall 1978 through spring 1981) I was in law school studying the rules of evidence and how some things you learn in law school never, ever, are things you have to deal with once you start practicing law (In 26 years of practice I have never had to deal with a Dying Declaration situation).
However, now that the topic of the Dying Declaration exception to the hearsay rule has been talked about in this thread, I am sure that the next case that comes in my door will result in me having to deal with it.
No one to blame but myself. Guess I should go look at the evidence code and case law on the subject to learn the arcane details of same. >>
Don't forget that for the Dying Declaration hearsay exception to apply, the declarant must be unavailable. Note: unavailable doesn't necessarily mean dead (though it could). Someone could be unavailable for other reasons such as having a privilege against testifying or being in a coma.
-Fuzz
"Everything is on its way to somewhere. Everything." - George Malley, Phenomenon
http://www.american-legacy-coins.com
<< <i>Easy call: Inadmissible. Better stick to real estate law, Sanction.
Would it be admissible as a dying declaration if his death was a result of being struck in the head by the 1933 double eagles?
<< <i>The Langboard suit is not and never was an issue about the legality of ownership of the coins. It is about the furtherance of government service employees careers and their obsession with exercising the power of authority. Also, anyone who thinks that the government seeks to obtain legal recovery of the coins merely for the purpose of destroying them is ignorant. The powers that be recognize the value of whatever revenues could be realized from a public sale of these additional pieces, even if their value on an individual basis is diminished by the public perception that they are not "unique" for private ownership, as the Fenton coin was promoted to be. >>
Really? Whats a few million to the Guvmint when they piss it away by the billions? Its the power thing tho, thats a fact.
<< <i>Hey, as long as we're playing make believe, let's see what happens if he has a letter from Eleanor Roosevelt saying how good he was in bed last night, and here's something to remember me by........
I wonder if this was the comment that the judge thought I would be shocked, shocked to hear read in court!!!!!!!!!
LOL!!!
<< <i>
<< <i>It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
...
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie]. >>
If Izzy Switt did make such a recording before his death, the recording would not be admissible because it is hearsay unless it could fit under one of the hearsay exceptions. As you mention, there is a dying declaration exception, but for the exception to apply in this case, it would have to be made while under the belief of impending death and concerning the cause or circumstances of the cause of his death. So unless he was on his death bed and was telling a story of how he was killed by the coins, the tape would not be admissible.
However, there are other hearsay exceptions that might work, such as a recorded recollection or a statement in an ancient document (older than 20 years). This is assuming that the tape could properly be authenticated.
-Fuzz >>
Bingo! In addition to choking on the coin, they would also have to overcome the personal knowledge aspect, which is based upon more than ipse dixit. That is, it is because I say so argument.
We just lost (technically) a case based in part upon this argument. We were expecting the jury to award in excess of 800K on all claims.
I took the verdict sitting down. In short, Were there damages? YES
What is the total amount of damages? The jury foreman says: Six Hundred Thirty.......
I was expecting his next word to be Thousand.......
He said DOLLARS!!! I almost flipped the chair...
I say technically lost but because we obtained some $, we get to motion for atty fees. Figure approx 500 hours at $350-$500 per hour...
As to the other evidence questions raised by some of the other posters, neither the recorded recollection rule nor the ancient records rule would overcome the hearsay bar. The recorded recollection rule, despite being grouped into Rule 803 (availability of declarant immaterial) is interpreted as requiring the presence of the witness, who must first testify that he lacks the memory to accurately recall the information that the party wishes to introduce via the recorded recollection. Mr. Switt is dead, so he would be unable to take the stand and tell the court that he lacks sufficient memory. Some courts have, in narrow circumstances, still allowed recorded recollections created prior to the death of the declarant, but the evidence offered in those cases met other indicia of reliability which would clearly be lacking in the case of a self-serving video about why Mr. Switt should be allowed to keep his coins. Additionally, the video would still fail to satisfy another important requirement of the rule, which is that the recollection be made at a time that it is "fresh" in the memory of the declarant. Considering that Mr. Switt's deathbed confession would have occurred long after he acquired the coins, it would be impossible for the tape to have been made at a time that the events were "fresh" in his mind.
As for being an "ancient document," I doubt a trial judge is going to buy into this argument. Even if the video had been made more than 20 years ago to satisfy the time requirement, because the contents of the video is actual live testimony made to explain the controversy of the coins, it would offend the basic purposes of the rule to admit the statements contained therein without satisfying an additional hearsay exception. I suppose the application of this rule might be an open question that some judges might entertain, but the application of this rule to a videotape (as opposed to more traditional ancient documents, such as letters, deeds, handwritten accounts, etc.) would be such a novel interpretation of the law that my guess is most trial judges would prefer to err on the side of caution and keep such a statement out due to the fact that it lacks the basic threshold indicia of reliability present in all other hearsay exceptions. This is a tape made to explain why Mr. Switt and his family have legal right to the coins -- the heart of the subject matter of the case -- and the ancient documents rule is typically applied to documents that were made long before the legal controversy arose.
Was that just for having gold or was it for having gold that shouldn't have gotten out? If it was for the latter, then I think these are more likely than not linked to the previous, and since he put up no unquestionable defense at that time, these should not be considered legal either.
I've been told I tolerate fools poorly...that may explain things if I have a problem with you. Current ebay items - Nothing at the moment
<< <i>Hey, as long as we're playing make believe, >>
he named names and admitted to acquiring them illegally in said video?
<< <i>
<< <i>It would be an absolute bombshell in the Langbord case over the 10 1933 Saints if the family and Barry Berke produced in discovery a videotape of Izzy Switt on his death bed telling (truthfully, I would hope) the story of how he "legally" came into possession of his stash of 1933 Saints (the ten that are the subject of the lawsuit and any others he at one time had). For example he exchanged earlier double eagles at the cashier's window at the Mint for 1933 dated double eagles.
Of course, in addition, additional evidence [live witnesses, written declarations, other video taped statements of live witnesses] that could authenticate and lay the foundation for the admissibility of Izzy Switt's videotaped "Dying Declaration" would have to be present.
...
BTW, "Dying Declarations" are an exception to the hearsay rule and thus these types of statements are admissible in court [on the theory that people facing immediate death have a motive to tell the truth and do not have a motive to lie]. >>
If Izzy Switt did make such a recording before his death, the recording would not be admissible because it is hearsay unless it could fit under one of the hearsay exceptions. As you mention, there is a dying declaration exception, but for the exception to apply in this case, it would have to be made while under the belief of impending death and concerning the cause or circumstances of the cause of his death. So unless he was on his death bed and was telling a story of how he was killed by the coins, the tape would not be admissible.
However, there are other hearsay exceptions that might work, such as a recorded recollection or a statement in an ancient document (older than 20 years). This is assuming that the tape could properly be authenticated.
-Fuzz >>
Declaration against interest perhaps