Hearsay. We're suddenly hearing that word a lot, mostly from people (a) with an agenda, and (b) without a clear understanding of its application. Please accept the following as a public service.
"Hearsay" is a concept in the law, used to determine what evidence is admissible. Rules about hearsay come in the Federal Rules of Evidence under Rule 8 (and in analogous state rules). First, it defines "hearsay":
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
This is nowhere near as easy as it seems. The first part is easy - any statement not made in court. The second part gives law students, new lawyer, some old lawyers, and even a few judges, absolute fits.
Here's the key language - "prove the truth of the matter asserted in the statement." It's best proven by example. If I yell at the cat, "stop scratching the furniture," and you try to admit the statement into evidence to prove (a) I have a cat, or (b) the cat was scratching the furniture, that would be hearsay. But if you want to introduce it to prove that the cat responded by running in response to my voice, that it knocked you over, and you got hurt, it's not hearsay, because you're not introducing it to prove the facts of my statement, but to prove the existence of my statement, that I said a thing that caused an act that led to an injury.
I know. Not as easy as it looks. "He's got a gun!" is hearsay to prove he had a gun, but not hearsay to prove people ran in panic at hearing the words.
But wait, there's more. A lot more.
Some words are defined as not hearsay because of how they're used. If a witness testifies and says "the cat didn't scratch the furniture," you can introduce their earlier statement, "stop scratching the furniture," to rebut their testimony, and it's not hearsay. You can also introduce it to rebut a claim they're making something up, e.g. lawyer argues or other witness testified you didn't even own a cat until last week, the statement is admissible to rebut it.
Also, there's a whole series of statement by, or on behalf of, another that are defined as non-hearsay. THESE ARE IMPORTANT, so I'll lay them all out and discuss them individually:
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
DISCUSSION - if I'm on one side of a lawsuit (or impeachment) and you're on the other, I get to introduce anything you say. I get to introduce it whether you said it to me or to somebody else. I even get to introduce it if I overheard it on a telephone call I wasn't part of. What does that mean in the present situation? It means the testimony of David Holmes, that he overheard Trump refer specifically to the Bidens in a telephone call with Sondland, IS NOT HEARSAY. It means Lt. Col. Vindman's testimony that the "transcript" is incomplete and that Trump specifically referenced the Bidens IS NOT HEARSAY.
(B) is one the party manifested that it adopted or believed to be true;
DISCUSSION - This is a hard one. People will insist it's "hearsay within hearsay," yet the rules say it's not hearsay at all. If an opposing party says, "I believe what that other guy said is true," what the other guy said is admissible. So if Trump said he believes (the wacky conspiracy theory) that the Democratic Party's servers are hidden in Ukraine because he heard it on a podcast, it's admissible.
(C) was made by a person whom the party authorized to make a statement on the subject;
DISCUSSION - this one, and the next one, are really big deals when it comes to the President of the United States, given how many people are authorized to speak on his behalf. You know who is authorized to speak on a President's behalf? An ambassador. In fact, that's pretty much the definition of the job. You know who else? An attorney. Think Sondland and Giuliani.
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
DISCUSSION - this broadens the definition even further. You see, Trump is making a HUGE mistake refusing to let people testify. By saying everything they heard or said during their employment falls under executive privilege, he is holding them so close as to fall under this rule defining whatever they said as non-hearsay. You can't, on the one hand, say everything Mulvaney said or heard is privileged, and on the other say what he heard is outside the formal relationship and therefore can't be attributed to Trump. You can't even call it hearsay, because it's defined as non-hearsay. In other words, pretty much every word uttered under the roof of the White House is, by definition, not hearsay. Fun stuff, eh?
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
DISCUSSION - Trump can't conspire with Giuliani to bypass diplomatic norms to get Ukraine to announce an investigation, and please note, he was asking for an announcement before the investigation started, that was more important to him than any actual finding, anything said during the course of that relationship would Not. Be. Hearsay.
Okay, so much for Rule 801. Did I mention there are also Rules 802, 803, 804, 805, 806, and 807?
Read on, Macduff.
Rule 802: Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Yeah, that's the part people think they know. Of course, we already know everything in 801, which so many think of as hearsay, isn't. So anything under the White House roof, anything offered to prove the existence of the statement, rather than the content of it, any statement by Trump or anybody authorized to speak for him, etc., those don't fall under the rule.
Neither do the exceptions. Let's move on.
Rule 803. Exceptions to the Rule Against Hearsay
There are 23 of these. You don't want me to discuss them all. Let me touch on a couple that should end this whole conversation.
Records of a Regularly Conducted Activity.
DISCUSSION - If records are kept in the normal course of business, they're admissible. Why? Because there's an assumption that they weren't created to create fake evidence, but to keep the business, or government, running. That means any White House records (because they're ALL public records - they may be classified an not accessible, but they're regularly maintained and therefore fall under the exception) are admissible.
Public Records.
DISCUSSION - BAM! You see, anybody said or done by Trump is pubic record. It may be classified and therefore not accessible for decades, but it's public record and not excluded as hearsay. This, by the way, is the exception that puts the entire conversation to rest. This is the big one.
RULE 804 is a collection of exceptions that only apply if the witness is unavailable. Do you want to know what the first one is? "The witness is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies." In other words, if witnesses refuse to testify based on claims of executive privilege, their statements can be introduced by others!
Another one is when a witness is unavailable because they refused to respond to process, including a subpoena. So if they say, "I'm following the President's instruction to ignore your subpoena," their statements are admissible.
And here's one that's just so on point that I have to give it to you in its entirety:
Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
If a witness refuses to testify because Trump told them not to, because it would hurt him in the impeachment proceeding, Katie, bar the door. It's all coming in.
"But wait," you may say, "sure, some of these statements may fall under hearsay exceptions, but you want to use hearsay within hearsay." There's a rule for that, too:
Rule 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
And finally, the catch-all:
Rule 807. Residual Exception
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(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
CONCLUSION - So what can you take from all of this? Here’s the conclusion. The “it’s all hearsay” arguments are baseless. First, much of what we’re hearing isn’t hearsay, because it falls under the definitional exclusion, as non-hearsay. Second, the stuff that doesn’t is all public record, or statements by authorized agents, or (and this is the fun part) admissible precisely BECAUSE of Trump’s refusal to let people testify or produce evidence.
So please, if you really want to say, “it’s all hearsay,” educate yourself a bit, because, to be blunt, you’re wrong.
The final exam will be a week from Tuesday. It’s open book.