Trump fans dismissing Cassidy Hutchinson’s testimony in the January 6th Hearings as “hearsay” prompted a column on hearsay.
We’ve all heard trial lawyers object: “Hearsay!” So, what is hearsay, and is it always excluded?
Hearsay is an out-of-court statement offered to prove the truth of its contents. Testimony that “Joe told me Donald told him Mike wore a dress to the party” is inadmissible to prove what Mike wore. What if Joe testifies Donald told him that? Still inadmissible, unless offered to show Donald’s view of Mike. We need Donald to testify that he saw Mike in the dress. (If Donald testifies Sue told him, it’s again inadmissible.)
Out-of-court statement is obvious. “Offered to prove the truth of its contents” is an important qualifier folks sometimes miss. “When I woke up that morning, Donald said it was snowing outside.” Inadmissible as evidence it snowed; but if this happened in Miami, and is offered to show Donald isn’t quite sane, it gets in. Or if Donald had immediately sold the witness emergency snowshoes for $1,000 on a sunny 82-degree day, it’s admissible as evidence Donald lied to defraud someone. “Hang Mike!” or “Let’s steal that!” wouldn’t be hearsay, if the witness heard it.
Even hearsay may be admissible. There’s a complex series of rules that basically reduce to common sense. If the context and conditions strongly suggest truth, maybe it gets in. For example, judges may admit testimony to “excited utterance” made without time to think, and thus more than usually credible.
Witness says Donald asked about her cabin, saying he might need a hideout because he just robbed a bank. Donald’s admission of a crime is hearsay, but admissible as “an admission against interest.” That is, a reasonable person in Donald’s position wouldn’t have made that statement falsely because it’s contrary to his financial or other interest, or likely to expose him to civil or criminal liability. It’s also admissible if Donald is a party to the case, because a party’s statements aren’t defined as hearsay.
Donald, seeking medical care, says his stomach hurts because the damned bank guard shot him. Doc’s hearsay testimony is admissible.
In earlier times, a statement by a dying person, “Donald shot me,” was allowed as evidence because someone about to meet St. Peter wouldn’t add another lie to his record. These days, that reasoning seems weak; but in homicide cases courts still admit a victim’s statement about “who done it” made when the victim thought death was imminent.
Other admissible hearsay includes the family bible’s list of children’s birthdates, if those dates are in question.
A court may reject evidence when its tendency to inflame jurors’ passions and prejudices outweighs its value as evidence. There’s also a catchall exception that may admit statements that aren’t among the listed hearsay exceptions but offer similar assurances of credibility. Too, if Donald testifies he won an election, hearsay testimony that he said he lost can be used to impeach him, and he can be cross-examined on that.
Unlike a court trial, public hearings can and do admit hearsay. We each get to judge witnesses’ credibility, although too often we do so on whether or not we like the testimony.
Judges use the witness’s demeanor, her possible motives, biases, and interests, and the circumstances, as well as whether the testimony is internally consistent and supported by existing evidence.
Cassidy Hutchinson seemed credible to me.
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[The above column appeared this morning, Sunday, 10 July 2022, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both station’s websites.]
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