THE UNLUCKIEST MURDERER IN HISTORY: The Shark Arm Case and the dead witness dilemma

Added: 2026-05-07

[00:00:00]Welcome to the Rebuttal Podcast, where we break down case law, comedy, and chaos in the legal field. I am once again your host, Rev. Masel. As always, today's case is a lesson of sorts, on luck, on divine intervention, and on the dead witness dilemma. The facts of this case took place in Australia in 1935 in the 1930s generally really and the cast of characters that are going to enter the scene are outlandish enough for you to say, "Are you sure this is real?"

[00:00:31]Indeed, it is. I researched it very thoroughly. I invite you to sit back, enjoy, and think about the last time you were in an aquarium. Maybe pay attention to what the fish are coughing up. Very quick disclaimer though. I often pull excerpts from news articles, from press releases. I read sections of entire court opinions to you. This is not one of those. This is me writing about it top to bottom. This is a Reb Masel special. Enjoy. Quote, "You never know what worst luck your bad luck has saved you from." Cormick McCarthy. No Country for Old Men. Part one, The Shark. On April 25th, 1935, 300,000 spectators and 60,000 veterans swept into Sydney. It was Anzac Day, the acronym for the Australian and New Zealand Army Corps.

[00:01:22]Two allied countries with the dynamic of siblings who hate being mistaken for the other. A national day of remembrance for all servicemen killed in combat and peacekeeping operations. That year also marked the 20th anniversary of Australia and New Zealand's first major military action in World War I. Every hotel was booked. The peers overcrowded, the beaches overrun. Charlie and Bert Hobson were ready for them. The Hobsons owned the Coogi Aquarium Baths, a 50-m pool at the northern end of Coogi Beach. To attract paying customers year round, the Hopsons installed an electric pumping system which could empty and fill the pool with fresh sea water in less than an hour. In the hotter months, the pool was for people. In the cooler months, the pool was for creatures. There had been eight shark attacks in Sydney's waters in 1934 when tiger sharks or great whites would tear an arm or a leg off an unsuspecting swimmer off the coast of Sydney's beaches. A manhunt, fish hunt really, if you want to be technical, would commence to kill the animal. The Hopsons caught and threw sharks in their pool to satisfy the public's urge to see the beasts wreaking havoc alive and up close. Well, alive and up close before the sharks promptly died from swimming in a pool. Naturally, SeaWorld take notes. A week before the Anzac holiday weekend, Bert and his nephew struck gold. Just in time for the swarm of tourists, a large 14 1/2 ft tiger shark had stuck itself on the other end of their fishing line. The large shark had come across a smaller shark already stuck on the line and swallowed it whole. The stuck line stayed in the smaller shark now eaten, which stayed inside the large shark, now also stuck. In all, it took 45 minutes for the Hobsons to maneuver the massive shark onto their boat and then into their pool. And the shark, now barely alive, sunk to the bottom. Revived with an oxygen pump, the shark half-heartedly bobbed around the pool and for the most part refused to eat any of the food thrown at it. Nevertheless, the Hobsons took out advertisements in the local paper announcing daily feeding times at 3:30 p.m. and 5:30 p.m. for quote the largest tiger shark ever in captivity.

[00:03:32]That is unconfirmed, but if the Hobsons say it, we're just going to roll with it. Despite this enticing draw, only a handful of people were watching the half-dead shark bob around the pool by late afternoon on April 25th when suddenly the shark started thrashing.

[00:03:48]According to witnesses, the shark beat its tail against the surface, lapped the pool at a high rate of speed, bumped against the side, sloshed water over the rim, stopped at the shallow end of the pool, sunk to the bottom, and vomited in that order. The brown vomit contained a whole lot of things that smelled awfully bad. A rat, a bird, a shark fin not from the shark it ate earlier. More parts of the smaller shark it definitely ate earlier. And for the grand finale, a severed human arm cut off at the shoulder tied with a rope around the wrist. The arm had been eaten by the smaller shark, who had caught itself on the Hopson's fishing line, who had been swallowed whole by the larger shark, who had been caught by the Hopsons, who had survived long enough to get seasick in their pool, who had vomited up the somehow still intact arm in front of witnesses.

[00:04:34]Yeah. What was that about luck and divine intervention? Police were called and the left arm was fished out. The coroner, a notable surgeon and local expert on shark wounds, was perplexed.

[00:04:46]Instead of torn flesh indicative of sharkbite marks, this arm had been cut off with a sharp instrument. Though not as cleanly as a surgeon would have done it, it was obvious the arm had been relieved of its torso by someone less fish and more human. Although he was unable to determine if the arm was removed while the person was dead or alive, the coroner was able to take photos of the intact bicep, which just so happened to have a perfectly preserved tattoo on it. Whoever murdered the owner of this arm had dismembered it and dumped it in the ocean, which in 1935 should have probably been enough to get away with it. The odds of a small shark eating the only body part with distinguishable markings in the pre-DNA era are slim. Other than the face, which even spending a few weeks, a few days in the ocean could also become very not identifiable extremely quickly. So, honestly, throw that out as even a possibility. The odds of that shark then being eaten by a larger shark who was then captured and displayed in a tank capable of making that larger shark nauseous enough to vomit it up. Laughly silly. Sure, murdering someone comes with a bit of bad karma. You get back from the world what you put into it.

[00:05:58]Unfortunate as it may be to know that very evil people sometimes live comfortable and seemingly neverending lives. See Henry Kissinger. But this many unforeseen natural causes tying together to ensure a run-of-the-mill murderer doesn't get away with it.

[00:06:13]Either this victim was blessed by some now very angry gods of fate, or the universe just decided this killer needed to be humbled in a very goofy ass way.

[00:06:21]The third option would be chalking this up to freak coincidence, which is a lot more logical but a lot less fun. So, I'm going to go with one of the first two options. Thank you so much. But back to the logic. Descriptions of the tattoo were included on the front page of the Sunday paper. Two boxers facing each other in blue outline with red boxing shorts. Keep in mind also how many people had tattoos back then. Was it as prevalent as it is now? I don't think so. After glancing at photos of the tattoo, Edward Smith went down to the police station. It was, in his words, quote, undoubtedly my brother's arm.

[00:06:56]Part two, the boxer. Jim Smith was a 45-year-old English-born amateur boxer who couldn't fight well enough to be paid to do it. One of his former bosses, a bar owner, described him as quote, "A man with seemingly not an enemy in the world." The newspapers ran this description for months, not realizing his boss was either a bald-faced liar or had only spoken to the guy a handful of times. Smith had been hanging around seedy quick cash schemers for years at that point. To say he couldn't have gathered a few foes through the several criminal enterprises he was involved in is hilarious. You might say, "Hey, Reb, some people don't speak ill of the dead." Well, start speaking honest of them for the love of God. Let's not rewrite history when the key to finding this no enemy in the world quote unquote man's killer is quite literally to find those enemies. There can't possibly be none. For Smith, there were indeed two.

[00:07:51]In the 1920s, Smith opened a series of billiard parlors in downtown Sydney as a front for an illegal gambling ring.

[00:07:58]Police raided Smith's operation in 1932, but instead of charging him, he was hit with a very hefty fine on the condition that his bars stayed legal. Naturally, he installed unlicensed slot machines to try to pay it off. What happened?

[00:08:13]Another hefty fine. Then in August 1933, the owner of a different club called police to report a distressing number of billiard balls had been stolen from her property and she thought Mr. Man with seemingly no enemies in the world was behind it. Smith was called into the station. According to the police report, his very irate wife Glattis arrived there first. Where her eye was directed when she walked into the police station is unclear, but what follows thereafter implies that Smith was in the proverbial doghouse and Glattis was more terrifying than the prospect of a mafia hit. He folded like a cheap suit. Before detectives even said a word, wife next to him, Smith made an offer. He would start informing them on one of the quote best smuggling cases in Sydney if they just let him return the balls and be done with it. They agreed. And that is how Jim Smith became a police informant on gang smugglers over billiard balls.

[00:09:09]But not just any smugglers. One of the most dangerous criminals in Sydney in the 1930s. Eddie Weman, a leader in the city's criminal underworld and notorious for taking out hits on anyone interfering with his enterprise, was arrested during a foiled bank robbery based on information Smith fed to the police. All things considered, snitching on Weman and then blowing your cover shortly thereafter would be very stupid.

[00:09:34]But since Jim's arm did indeed end up in a cloud of shark vomit, you can guess where this is going. As an aside, because again, my research really went in all different places and directions that I wish I could go back from. One place it went that I will give to you now, show you now is the Australian slang term for police informant is fizz gig. F I Z gi. Fizz is a noun and fizzing is a verb for short. You are a fizz. If you are informing on someone, if you are a police informant, you're a fizz, a fizzle, a fizz gig. This is a grammatically correct sentence. The fizz is fizzing on my cousin Brandon. Edward Snowden, one of the most famous whistleblowers of our time, is a fizz gig for fizzing on the NSA. Deeply unserious use of the English language, in my opinion, deeply thoroughly silliest bone in your body was used to create these words. In the 1500s, quote, FIS gi FSg was a derogatory label for a flirtatious gossiping woman, specifically frivolous or flirtatious girl. Apparently, men had never been shameless gossip on a level to earn their own slur for it. I say with complete sarcasm. They had been, they are, they will continue to be. But historically, men engaging in gossip is described as talking or sharing information or delivering news. Women doing the same are apparently figs. Is she a frivolous gossip or simply a woman speaking? In society, there wasn't a difference. Misogyny is everywhere, including in our slang. Before the billiard ball stealing incident, Smith had been helping a man, and this is his name, Reginald William Lloyd Holmes, a name either destined for British royalty or Australian mob ties. There is truly no in between. And a Patrick Francis Brady smuggle cocaine, cigarettes, and other contraband into Sydney and commit the occasional insurance fraud just as a treat. Holmes ran a successful ship building business in Lavender Bay and Brady was a convicted forger. Brady would forge checks signed by Holmes' wealthy clients for him and Smith to cash. After the trio were connected to the suspicious sinking of an overinsured pleasure yacht called the Pathfinder in 1934, the police started sniffing around. Now, the Pathfinder sinking, all right, was its own Wikipedia page that has its own like it was newsworthy standing alone. this trio which included our murder victim arm and a smaller shark and a bigger shark in an aquarium and puke. I just don't understand how they had the time to be involved in so much tom foolery. This is not believable. Sensing their cushy, drug pushing occasional fraud, if we're in the mood business might be up, Smith began blackmailing homes. Mid blackmail, Smith let it slip that he'd been feeding police information on local forgery schemes. Smith was an informant. Holmes spread the word. Part three. Shark one, bullet one, gangsters zero.

[00:12:43]Hi everyone. I want to take a quick break to thank Skiims for sponsoring this episode. Bras and underwear are something I do not want to be reminded that I am wearing at work during the day and when I wind down at night. I want them to feel like nothing is there. The Fits Everybody collection from Skiims is so soft, it does just that. My favorite pieces for work under my suits, for example, are the high-waisted thong and the scoop bralette. They mold to my body like shapewear without cutting into my skin. I can wear them all day without constantly readjusting, and I also reach for them on the weekends when I want to lounge around in a t-shirt and sweats.

[00:13:19]The Fits Everybody collection is seamless, cozy, and a perfect addition to your wardrobe. Shopkims fits everybody collection atks.com.

[00:13:27]After you place your order, be sure to let them know rebuttal podcast sent you.

[00:13:31]Select podcast in the survey and be sure to select rebuttal pod in the drop-own menu that follows. You won't regret it.

[00:13:38]Now, back to rebuttal.

[00:13:46]According to the police, Smith was last seen drinking and playing cards with Brady at the Cecil Hotel in Cronula on April 7th, 1935. Also bizarre that this case has a Cecil Hotel, which if you look up Cecil Hotel in LA, the subject of I believe at least two plus documentaries with respect to odd events happening. Uh case is very unserious.

[00:14:11]Either it's deeply serious and unsettling or we can have a laugh about it. Pick your poison. This is what we know. According to the police, Smith was last seen drinking and playing cards with Brady at the Ceil Hotel in Kanula on April 7th, 1935. Brady had rented a cottage nearby. After he left, the owner discovered a trunk and a mattress had been replaced and the walls scrubbed clean. The next day, Brady showed up at a taxi driver's home asking for a ride to Sydney. Disheveled and terrified, he kept one hand in his coat pocket the entire ride. Every few minutes, the taxi driver told police Brady would look through the back rear window as if expecting to be followed. Brady had asked the driver to take him to Holmes's house. And that is it. Without the rest of a body or a confession, a jury would be hardressed to convict on just these facts. So, the police pressed harder.

[00:15:02]They arrested Brady on murder charges and aggressively interrogated him and Holmes for several days. Back then, you could arrest and confine someone for several days. you didn't really need probable cause or an arrest warrant or charges to be brought. You could just kind of uh confine somebody until they confess. It's kind of why the fifth amendment exists. Holmes, however, denied ever knowing Brady, which is a bit of a stretch. If you're going to lie about committing murder, at least have a few truths in there. Okay? I've literally never met the guy. Come, we can prove that pretty easily as false.

[00:15:35]Come on. At least say you knew him.

[00:15:37]That's not legal advice. But after sticking to that story of never knew the guy, sorry, Holmes was released. And this is where this case gets even wilder. 4 days later, Holmes brought a bottle of brandy and a revolver with him for a ride on Sydney Harbor in one of his speedboats. After driving for a bit, he started drinking. Once he was drunk enough, he pointed the revolver at his head and fired. The bullet ricocheted off the bone in his forehead because of course it did. In fact, all that gunshot managed to do was knock him out cold and launch him backwards off the boat and into the water. You might be thinking, "Oh, okay. So, he definitely drowned then. Finally, some logic in this story.

[00:16:25]Something believable. Wouldn't that be something?" No. A rope hanging. I'm not laughing cuz it's funny, but it is funny. A rope. I'm laughing cuz it's funny. That was a lie. It is funny. A rope hanging from the bow caught on his wrist and prevented him from drowning until he eventually regained consciousness and climbed back into the boat. Reb, there's literally no way that someone can shoot themselves in the head and have the bullet ricochet. That's not I don't know if that's the right medical term for it. Doubtful that it is. But all I can tell you is that it happened.

[00:16:57]You can give me an explanation that somehow makes sense physics-wise.

[00:17:03]It could have been a faulty gun, something with the chamber, maybe the bullet was made out of a Cheeto. I don't know. Okay. Why? All I know is the it did. I don't know how it did, but it did. It was diding. Okay. Not diddling.

[00:17:19]Did no pedophiles in this case that we know of. A change of pace if you've been watching any political news lately. And maybe it's a lie. Maybe everyone who researched this case, who wrote about this case back then and later, years later after they, you know, talked to some people who were involved and were like, "Hey, what happened there?" Uh, maybe everyone all colluded to say this would be some funny [ __ ] to have people almost a hundred years from now be laughing about or gawing at on a podcast. I'm sure that was the goal. So obviously what we can take from that incident and also the existence of this case as a whole arm and smaller shark and bigger shark and aquarium in puke is that Jim Smith's ancestors were working triple overtime. You are telling me that one of the suspected accompllices to his murder survived a point blank gunshot to the head to the skull to the noggin. At that point if I am the murderer I am turning myself in. Okay. Hands up. Guns no longer blazing. They are put away.

[00:18:19]there in the sea. I have a debt to pay.

[00:18:21]Apparently, the gods say that I do. And if the afterlife won't accept my early check-in into that room, right, gun to the head, I can only assume the hellfire cooking for me in the afterlife will indeed be probably a lot worse than a few decades in a prison cell now, here and now. Because whatever spirits are working in Jim Smith's favor are are in that afterlife presumably. Okay? With respect to whatever you believe. I'm not trying to get religious here, spiritual here, but I am indeed trying trying to get funny because what the [ __ ] else is going on? Coincidences, kanky dankies, cannot possibly add up to all of this.

[00:18:56]They can. They can. Maybe the spirits will call it even after he goes to prison. Stay optimistic, Reginald.

[00:19:04]Listen, suicide isn't funny. Attempts aren't funny. People survive suicide attempts all the time, and it's not funny. But can you please put all of that aside for just one second to let me do my bit? Thank you. Jokes not aside, the mortification alone from this horribly embarrassing suicide attempt would have had me drive that boat to anywhere but their city. That is the last anyone in Sydney would have seen of me. I can tell you that much. No chance I am being forced to boat back home on a suicide attempt walk of shame to let everyone know that yeah, I'm actually invincible. turns out, but not really in a helpful way. The coincidences were adding up on Regginald's conscience, and he just wanted this [ __ ] to be over with. So, in any event, Reginald Holmes did indeed go straight from his speedboat to the police station to get a few things off his chest. He told the police Brady had murdered Smith, dismembered his body, and dumped the parts in Chattanooga Bay. for Australian gangsters at the time. This unceremonious burial was called the quote Sydney goodbye, which is chef's kiss on verbiage on great use of the English language. Loving that. So, you love that bodies were dumped in the This podcast is not for you. 500 lb in 1935 would be 46,157ish pounds today, which is about $62,339 in 2026. So, it's a hefty amount of cash to be extortting people out of. If he didn't pay, Brady vowed to set Holmes up as the murderer. With that, police finally had the testimony to back up a murder conviction. But unfortunately, this is a very stupid case. A hitman blew up those plans. I like I just it's it's just on June 11th, a visibly nervous Holmes withdrew. And I'm not smiling ear to ear over people dying and getting hit. Okay, verb. I come on. I'm tired of the disclaimers. If any of you know any lawyers who are in the most violent and brutal areas of law ever, you would know that the only way any of us get through it is with light-hearted laughter and comedy and jokes. Like literally, that's the only way that we can find any levity in the situation and survive the job.

[00:21:25]This is not even close to being that, but I got jokes. All right, I got jokes.

[00:21:30]On June 11th, a visibly nervous Holmes withdrew another £500 out of his bank account and told his wife he had to meet someone. His body was found inside his parked car on June 12th, the same day he was due to testify as the primary witness at the coroner's inquest into Smith's murder. He was not given police protection, nor did police get a written statement from him to memorialize his version of the events, which is super convenient. And listen, police incompetence the same back then it is as it is today. You know, this kind of dumb oops, forgot. Again, this is the shark arm case. Of course, they didn't get his written statement. Of course, he was killed by a hitman. Of course, the little shark, bigger shark, aquarium, vomit, cloud, you get it. Though many suspected Holmes hired a hitman to test if his heart was as bulletproof as his skull, it was unlikely. Though the crime scene was staged to look like a suicide, forensic investigators ruled his death a homicide. His murder to this day remains unsolved. Without Holmes's testimony, the circumstantial evidence left to prosecute Brady was weak. Quote, "One arm isn't even a whole body." His lawyer argued in court, "Anyone can live without an arm. You can't even be sure Smith is dead." Fair point, baby.

[00:22:46]Lawyering, tried and true. Great point to make. And in September of 1935, a chief justice indeed agreed. Brady was acquitted and walked out a free man. He moved to Brisbane and maintained his innocence for the rest of his life before passing away at age 76. To this day, Jim Smith's murder remains unsolved. A prevailing theory is that gangster Eddie Weman, having just found out about Smith informing on him, ordered Brady to kill Smith. Based on the cab driver's testimony, Brady was acting like anyone would act in that situation, being forced to kill someone for the first time, which is stressed the hell out.

[00:23:25]This theory, however, has never been confirmed. In a final report, detectives on the case wrote that in their opinion, Brady would have been convicted had Holmes lived to testify against him. So goes the tale of how the unluckiest murderer imaginable was saved by a series of unfortunate for everyone else events just a few short months after a tattooed arm whooshed out of a tiger shark's mouth and shown a very bright light on a very dark deed. Whether it was Brady or another man responsible for Jim Smith's murder or a one-armed Smith who left his tattoo in the harbor and took his secrets far from Sydney Waters, the tom foolery of this case can leave us with a few lessons. First, the only sure thing about luck is that it will change. The laws of circumstance, timing, and fate are volatile, mercurial, and apathetic. The laws of man and rules of court are our best attempt to deal with the gray they create. Second, though not so much a lesson as it is a neat setup for the lesson I'm about to give you, the legal system is no stranger to the dead witness dilemma. Today, most cases involving a murdered witness wouldn't be handled the way it was in Sydney in 1935. It probably wouldn't be fair. Some legal genius once pondered if a witness turning up dead 20 minutes before an evidentiary hearing resulted in the automatic and irrefutable implosion of an entire criminal trial. Even so, today a deedant's prior unsworn statements cannot be admitted against a defendant in a criminal case or an opposing party in a civil case unless certain stringent requirements are met. And just a note, generally the preferred term in the law for a person who has passed away is deedent. More austere terms like dead dude and the departed are oddly disfavored. So that is what deedent means if you weren't familiar. But why?

[00:25:12]What is the logic behind not admitting the statements of a dead person in a criminal trial? Can detectives who spoke to a dead witness testify about what the witness said? Do we really need witnesses alive and talking under oath?

[00:25:26]If so, why doesn't every murderer just put out a hit on all of their witnesses so they can walk free if the dead witness talked to somebody while they were alive? What is the problem? Part four. When a shark swallows an arm, hearsay, the confrontation clause, and the dead witness dilemma. Note, this lesson will require that we switch over to the American legal system of rules because, well, that's what your host knows. Remember, this is information, not legal advice, nor is it intended to supplement a full-blown course on evidence and hearsay rules for the love of all that is unholy. Do not use these next few minutes as your Hail Mary study guide for a law school exam. This is the more cut to the chase summary I could cook up just to make a sliver of sense to people who have never actually learned what hearsay is and how it functions in court. This crash course is a chummy severed arm to the full body.

[00:26:14]You will be tested on as a law student and that you need to know as a lawyer.

[00:26:18]Chummy severed arm, not the full body.

[00:26:21]With that, let's begin. What is hearsay?

[00:26:23]Hearsay is a statement made out of court by the declarant offered at trial for the truth of the matter asserted in the statement. As a general rule, hearsay is inadmissible in court. All five elements must be met for the statement to meet the statutory definition of hearsay.

[00:26:38]One, a statement means a person's oral assertion, written assertion, or non-verbal conduct if the person intended it to be an assertion. An assertion means the person intended to communicate a fact. Tina saying, quote, "Hail told me he met Mary at the grocery store." That amounts to Tina's verbal claim that Mary went to the grocery store, which is a statement under the hearsay rules. Second, a statement can only be hearsay if it was made out of court. meaning a statement the declarant the person speaking does not make while testifying under oath at the current trial or hearing. Number three, a declarant means the person who made the statement. Obviously, this does not necessarily mean the person currently testifying, but a person testifying under oath can be the declarant for hearsay purposes. An example of this is if Mark took the stand at trial and testified, quote, "I told Rose, I left the party at 8:00 p.m., Mark is the declarant making the out of court statement to Rose." If Mark testified about what Rose told him, Rose would be the declarant for hearsay purposes. Make sense? If it doesn't, it doesn't matter.

[00:27:43]We can keep going. Number four, to be hearsay, it must be offered at trial.

[00:27:47]Meaning, a party offers the statement as evidence at the current trial. But see the next rule quote for the truth of the matter asserted in the statement means a party must offer the statement as evidence that the substance of what the declarant asserted is factual. An example of this is if the statement quote Mary told me it rained on her wedding day is offered at trial as proof that it rained on Mary's wedding day. It is being offered for the truth that it indeed rained on the day that Mary got married of the matter what the weather was like on the day Mary got married asserted by Mary the declarant the person talking. However, if instead the same statement was offered to prove the statement's effect on the witness Mary spoke to. For example, if Mary's statement to the witness made the witness angry because she felt that Mary, her wedding planner, did not care that her wedding day was ruined, then the statement is not hearsay. In that scenario where the statement is not offered for the truth of the matter asserted, all that matters is that the words were spoken, not that they were true. Mary could be lying through her teeth and it's entirely irrelevant to what the statement is being offered to prove. The truth of Mary's statement, i.e., it rained on her wedding day has no bearing on the impact her statement had on the witness. Mary's statement is not hearsay if it is introduced to established the truth of her claim that it rained on her wedding day. Mary's statement is hearsay, however, if it is indeed introduced to establish the truth of her claim that it rained on her wedding day. I know that that raises more questions than it answers, but just take it for what it is, okay? That's what truth of the matter asserted means.

[00:29:30]Despite this very brief and non-exhausted summary of the definition of hearsay, by now most people are either fuming or confused. I hear you. I see you. We see each other. If you have ever followed a trial where cameras were permitted in the courtroom, you have definitely heard hearsay statements from witnesses testifying without a sustained objection to them. How? The word hearsay is only used to identify statements that are by definition inadmissible unless a hearsay exception or exclusion applies.

[00:29:58]When an outofc court statement is being offered for a purpose other than to prove the truth of the matter asserted in the statement, okay, the merry, it ran on our wedding day situation, then it is a non hearsay use and thus it is not hearsay since it does not satisfy element five that I talked about. It would not be thrown out on hearsay grounds, but could potentially be excluded on a different legal basis. So for the whole like, oh, it's being introduced for a non-harsay use or a hearsay use, it's the equivalent of taking a hairbrush, brushing your hair with it, or using the hairbrush as a club. The hairbrush, if we recall the hairbrush hairs, okay, we're rebranding hair brushes as hearsays, okay? Using my hearsay to brush my hair. You're using it for a non-hairbrush use if you're swinging it. So it's not a hairbrush. If you're using it as a hairbrush, it's a hairbrush. And that's Does that make sense? Perfect. That's the best metaphor I could come up with on the spot, on the fly. Work with me here. Hair brushes, non-hairbrush use, hairbrush use, hearsay use, non-harsay use. Further, every statement that does satisfy every element of the hearsay definition, aka 1 2 3 4 and five, is not per se, meaning automatically as a matter of law, barred from submission as evidence at trial.

[00:31:12]Under the federal rules of evidence, there are at least eight hearsay exclusions and 23 hearsay exceptions.

[00:31:19]Imagine how confused we are as lawyers, as law students. Okay, it is [ __ ] that people hearsay is extremely difficult to get for law students to study to ram into your head. Literally wrote memorization of all of these exceptions, all of these exclusions, all of the context that they might appear in it. It's it's it just gets confusing.

[00:31:36]Okay? So, if you're confused, that's correct. I'm just giving you the overview so that we could talk about the competation clause because that's that's fun. The legal leg work looks something like this. We ask three questions. It's like a flowchart. Number one, is it hearsay? Does it satisfy all of those five elements of a hearsay statement? If it does, it's hearsay. Go to number two.

[00:31:58]Is it nevertheless admissible under either the federal rules of evidence or the state rules of evidence that apply?

[00:32:06]If it is admissible hearsay under those rules, yay, amazing, you go to number three and ask yourself, am I in a criminal trial? Because in criminal trials only, even if it is admissible hearsay, you have to ask if the confrontation clause under the sixth amendment forbids the prosecution from using it. Anyway, if the shark arm case went to trial in the United States today, the confrontation clause, yes, the sixth amendment to our United States Constitution and Regginald Holmes's death would go handin hand. One rule to keep in mind in this context, a defendant's outofc court statements are not hearsay if they are being offered against them at trial. So essentially, everything the defendant has said to others is fair game, not hearsay, admissible, we're good. So long as those statements are offered by the opposing side. So in this circumstance by the prosecution. Has Brady in this case been yapping his ass off. Oh yes he has. Note however that this exception okay this hey this isn't here say we're fine does not apply to statements helpful to the defendant. I know a quick blood boiling hypothetical to demonstrate this. Let's say for example a defendant tells a police officer I did it. That is admissible hearsay against the defendant. But if a defendant tells a police officer, "I didn't do it." That is inadmissible hearsay since it is not being used against the defendant.

[00:33:35]Another reason why you should not talk to the police under almost any circumstance without a lawyer present.

[00:33:41]Period. Done. Absolutely no. Thank you.

[00:33:44]And another FYI, courts often admit statements made by the defendant when they were intoxicated. Even statements made by seriously injured defendants are often admissible against them. Stop talking to cops. Put that on a shirt. I have. Thank you. Part five. What is the confrontation clause? The Sixth Amendment to the Constitution says, quote, "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." Translation: You have the constitutional right to be confrontational. Fight. Fight. Business as usual. for the founders back in the day. See, for example, them dueling all the time, but now set in stone in our bill of rights with a bit more decorum.

[00:34:27]Next time you hear about a defense attorney getting cussed out by a hostile witness on the stand, be grateful for the luxury of watching a foundational constitutional right be exercised with vigor. Okay, light a firework and throw a hot dog on the grill. Freedom, America, eagles calling. The confrontation clause after all is rooted in the medieval system of quote trial by battle which means what? Messy, dramatic, antagonistic. Well, yes, but we prefer the word adversarial. Whatever you want to call it, the Sixth Amendment champions our adversarial system of justice by demanding you, yes you, have the at least the chance to grill every speaker behind the statements the prosecution uses as evidence against you in a criminal trial. not civil, criminal only. Okay? You can't have just faceless people, okay, like they did back in the day to just pull up and be like, "He did it." And they're like, "Who said that? I can't tell you, but like we have a statement from someone who's really reliable. You need to tell me this what what they said." And I need the chance to ask them some questions. That's the concept. Okay. Duh. And sidebar about the adversarial system and by extension the confrontation clause being rooted in the medieval English practice of trial by battle or quote the gladiator model.

[00:35:39]These trials by battles were not metaphors. Specifically, medieval historians describe feuding parties as being put through a trial by ordeal.

[00:35:48]Capital O orals. Disagree with your neighbor about whose cow is worth more.

[00:35:53]Ordeal. Accused of stealing a piece of iron from the blacksmith. Ordeal. A medieval ordeal, mind you, which included in no particular order by how badly they sucked. Trial by combat, trial by fire, trial by water, trial by cross, trial by ingestion. Which are we picking? Roll the dice. I'm going to say water. I already hate my answer. There's no good one. It was the legal practice of the time that if subjecting an accused person to a painful or extremely dangerous quote situation, God would intervene to save them if they were indeed innocent. Obsessed. Amazing.

[00:36:29]Living in a society like that, I cannot stress enough how high the incentive would be for me to be the opposite of everything I love. Confrontational, no longer me, baby. Opinions, I've never had one ever in my life. If I were a medieval anybody, I would have won a medal for how zealously I let things go.

[00:36:47]Truly, if this is what I'm up against, if on the off chance anyone got pissed at me for the things I did, for the chat I had to say, or I don't know, wanted to accuse me of a crime just to get back at me. Yeah, you better believe that I'm going to let it slide right off. I'm I No, I'm just not going to get myself in that situation. Punch me in the face.

[00:37:06]Accidents happen. It's totally fine. I am literally so pacifist. I don't want God to choose between the two of us. I don't not that I don't think that I'm chosen. Capital C highly favored and divinely protected that I am. I don't want a final destination back and forth until one of us goes, but that's just me. Fast forward a few hundred years and the United States somehow took that system to mean capital O orals are good.

[00:37:28]Fighting adversaries is better, but we could do it all by word of mouth in a courtroom. God bless. Historically, unfair outcomes resulted from not requiring witnesses to appear, if you can imagine. At Sir Walter's treason trial in 1603, prosecutors read a letter from an alleged quote accomplice to the jury without giving an opportunity to cross-examine the quote accomplice at trial. Argued that the accomplice was lying to save himself and famously demanded quote, "Let him be here. Let him speak it. Call my accuser before my face." The judges refused his request and was sentenced to death. You can imagine how many faceless, anonymous, conveniently unavailable witnesses would be submitted by a prosecution when they knew that they didn't have to force them to pull up. Confrontation clause is a no-brainer. We do need to have it. In a criminal trial, not a civil trial, in a criminal trial, if a speaker, a declarant, a witness is unavailable for cross-examination. Let's say they're sick, they're dead, they're missing, they're uncooperative, they are dodging subpoenas like a mystery puddle in a subway car, and their outofc court statement is being offered to prove the truth of the matter asserted. Like I explained previously, the confrontation clause bars the hearsay statements.

[00:38:46]Period. Bars them. Can't provide them.

[00:38:49]Can't submit them. Can't be evidence.

[00:38:50]The defendant needs to be able to confront the witness. Okay? In civil court, many exceptions and exclusions allow hearsay statements to be admitted, even if the witness is unavailable. In criminal court, we tap the sixth amendment sign, unless, of course, the defendant had something to do with the witness being unavailable. Finally, the point of this lesson reveals itself.

[00:39:15]Reginald Holmes, enter stage, right?

[00:39:18]Part six. Would Reginald Holmes's statements to police be admissible? Now, to recap, Holmes told police that Brady told him that Brady had killed Smith and dismembered his body. Holmes also told police that Brady made various threats to extort him out of 500 lb. Now that Holmes is dead, and no one thought to ask him to write any of this down with a signature, the detectives who interviewed Holmes would have to testify as to what Holmes told them if the judge rules the statements are admissible.

[00:39:47]Don't worry, my head hurts from hearing that, too. Like a shot at a bar or a new set of twins, we can make hearsay a double. This is what we call double hearsay. If you are not watching on YouTube, you might want to click over and check out this diagram, this lovely drawing I made to demonstrate exactly what double hearsay is. I love a visual.

[00:40:08]If you don't like one, then don't click.

[00:40:10]But if you do, click, people. It's helpful. When double hearsay happens, each individual hearsay statement must be admissible on its own in court for the entire testimony to be admissible.

[00:40:22]In other words, if you want to admit a two-layer cake into evidence, each individual layer must be separated from the other to see if each can stand alone as cake. If one can't, the whole cake is trashed. Brady's statements to Holmes are admissible as non-H hearsay party opponent statements since Brady is the defendant on trial and his yapping admissions to other people are fair game without all of the hearsay haaloo but here the vehicle by which Brady's statements would even make it into court must be driven by a different haaloos's hearsay statements to the detective if we ignore Brady's statements we are left with one because this is a criminal trial the confrontation clause will bar the otherwise admissible pursuant to an exception or exclusion. He hearsay if the declarant, which is Holmes in this case, is unavailable to be cross-examined by the defendant, which is Brady. Being dead makes you unavailable. Indeed, unless my motion to throw a Ouija board on the stand and light a candle is ever granted one of these days. A jury in 1994 was already way ahead of me on that, but you would know that if you listen to our episode titled, "The jury is on drugs, your honor." Highly recommend. One exception, however, to admitting hearsay statements over the confrontation clauses prohibition if the witness is dead, right, is if the defendant had something to do with the reason why in this case Holmes departed this earth is unavailable to testify. That is called forfeite. The forfeite exception, however, is extremely specific on purpose. The only way statements made by a formerly alive he unavailable witness could be admitted at trial if they are otherwise admissible is if the defendant's actions led to their death or harm that came to them and the defendant took those actions for the purpose of preventing them from testifying. So like if they killed them on accident, let's say, right? Random coincidental hit and run. Didn't know it was him. My bad. Didn't know they were going to testify me. My bad. then no, their statement still can't come in.

[00:42:16]Even though technically, yeah, the defendant is the reason for their death or harm. Okay. Uh but they didn't kill them for the purpose of preventing them from testifying. If they killed them without actually ever knowing that they were going to testify against them or having a hunch, like had no clue that they were involved or had no clue they knew what they knew. Again, doesn't qualify for the exception. It still isn't admissible because they're unavailable. Not for the purpose of Is that does that make sense? I'm not laughing cuz it's funny. I've just been talking a long time. I'm getting giggly here. Holmes was not killed by Brady, and there is no evidence to support that Brady was otherwise involved in Holmes' death. Accordingly, if this case were tried today in the United States in 2026, the entire cake would likely need to go, which includes the layer of Brady's statements to Holmes of him admitting to Smith's murder. And to think what I just gave you was the brief summary of how that would work. Welcome to the chummy, severed left arm of law school. So, what's the legal takeaway here? Brady's statements to Holmes would be barred from the criminal trial.

[00:43:14]Period. But the way that the court gets there is complicated to say the least.

[00:43:19]Are you having fun yet? My rebuttal for today's episode is you should not murder anyone. You should not dismember their body and throw them into the ocean. But if you happen to give anyone a Sydney goodbye, it might be prudent for you to check for tattoos. I hope you guys have a lovely rest of your day, rest of your week. This has been an episode of Rebuttal. And if you learned something, great. If you didn't, that's just fine.

[00:43:41]The limit of your understanding is not the limit of all understanding, which means it is not your job at times to be an expert, which in this case is a positive. If you don't understand anything about hearsay, that's amazing.

[00:43:55]There are so many people tasked in this world to understand it and apply it as their whole job in courtrooms around the country and around the world. So, put a pin in it. All you need to understand from this episode to get joy out of life is, "Oh my [ __ ] god, what are the odds? Smaller shark, big shark, aquarium, puke." Bye you guys.