Quigley on evidence: Hearsay edition

I observed earlier this week that there is a classic satire of democratic politics struggling to escape from the House’s impeachment inquiry. It was only yesterday that the Obama administration refused to provide lethal military aid to the Ukraine. Now the provision of lethal military aid appears to have become a holy sacrament in the evolving Democratic orthodoxy, one with its own martyrs and rites and hymns. You know, like abortion and LBGQT “rights” and liberation from biological reality (or from reality, period).

My favorite moment of the first day of public hearings in the inquisition this past Wednesday came courtesy of Illinois Democrat Mike Quigley. RealClearPolitics has posted video along with a partial transcript of Quigley’s five minutes in the sun here. This post is the pedantic companion to Steve’s “Hearsay Edition” of The Week in Pictures, offered in the hope that it may slightly elevate the level of discussion out there.

Responding to Republican criticism of critical parts of the testimony heard by the Intelligence Committee as hearsay, Quigley offered a “primer on hearsay[.]” He asserted: “I think the American public needs to be reminded that countless people have been convicted on hearsay because the courts have routinely allowed and created needed exceptions to hearsay. Hearsay can be much better evidence than direct, as we have learned in painful instances and it’s certainly valid in this instance.”

What was he talking about? Like so much that the Democrats say, I doubt the accuracy of what he said and I doubt that even he knows what he was talking about. Perhaps he could offer a prominent example with which he is familiar from his days practicing law, but I doubt that too.

I studied the law of evidence at the University of Minnesota Law School in a course taught by Roger Park, now the Distinguished Professor of Law and James Edgar Hervey Chair in Litigation at UC Hastings College of the Law. Professor Park is a great teacher. I’m a little rusty on the law at this point, but Quigley’s remarks reminded me of how Professor Park drilled the definition of hearsay into our thick skulls. He was (and I assume still is) a most creative teacher. We couldn’t emerge from his course without understanding what hearsay is (and is not). I am quite sure that Quigley has not had the benefit of Professor Park’s course or casebook or of a comparably excellent evidence teacher, though he may just be a dope.

The concept of hearsay is routinely misused or has a different meaning in common parlance. In colloquial speech, it means the statement of a third-party related by someone else (the witness) — something like a rumor.

In the law of evidence, however, hearsay is more narrowly defined as (1) an out-of-court statement (2) offered to prove the truth of the matter asserted in the statement. If the out-of-court statement is not offered to prove the truth of the matter asserted in the statement, but for some other purpose, it is not hearsay. Rule 801 of the Federal Rules of Evidence distills the rule as follows: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Quigley distinguished hearsay evidence from “direct” evidence. That is confused too. Direct evidence is distinguished from circumstantial evidence. Hearsay is distinguished from non-hearsay evidence. It was excluded from evidence under the common law because of its inherent unreliability. The common law rules have been incorporated in the rules of evidence applicable in our state and federal courts.

Quigley accurately stated that the law of evidence recognizes exceptions to the hearsay rule. They are generally set forth in Rule 803 of the Federal Rules of Evidence. I can’t think of any that obviously apply to the testimony of George Kent or William Taylor that Quigley was defending.

Certain statements that would otherwise constitute hearsay are excluded as non-hearsay by definition. Foremost among them are “admissions of a party-opponent” (out-of-court statements made by an adversary in the proceeding) and co-conspirator statements during and in furtherance of the conspiracy (offered against a party-opponent, they are admissible once the conspiracy is proved as separately required).

The out-of-court (or out-of-forum) statements introduced in the testimony before the committee on Wednesday contained hearsay within hearsay — double and triple hearsay, if not more. If the rules applied, a judge would have to determine whether an exception applied or whether the statement was or was not hearsay at each level.

The Democrats might argue that the statements attributed to President Trump are admissions — non-hearsay by definition. But President Trump has been accorded no role in the hearings. He is simply their subject. He is not a party-opponent; he is not a party at all.

Some of the statements attributed to President Trump may not have been introduced against him for the truth of the matter asserted. If that is the case, they are not hearsay.

The hearsay rule is only one of the rules of evidence that would be applied in hearings subject to the law of evidence. Evidence in such a hearing would also have to pass muster under the rules of relevance, for example.

Professor Park could fashion a good final exam based on the testimony of George Kent and William Taylor. I may be mistaken, but I doubt that Rep. Quigley would have made it out of law school if he would have had to take one of Park’s finals.

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