whisper.jpg

Hearsay is likely to be a HUGE feature of this trial. It is also, IMHO, an area of the Rules of Evidence that requires more creativity and strategic thinking than the others and therefore has always held a fascination for me.

Hearsay is defined by Rule 801 of the Federal Rules of Evidence as a “statement” (which can be oral, written or even nonverbal if intended as an assertion—think of a thumb’s up or an “OK” hand sign, or gang sign for that matter) other than one made by the witness while testifying, offered in evidence to prove the truth of the matter asserted.

In easier terms, it is an out of court declaration offered to prove the truth of itself. So, when Judy says Scooter told her X during their breakfast rendezvous in the hotel, that is an out of court declaration by Scooter. If Scooter said (and I’m making this up just for an example) that Cheney had kidnapped Santa Claus and had him tied up in the bunker in the WH basement and we wanted to offer that to prove 1) that there is a Santa Claus, or 2) that Cheney kidnapped Santa, or 3) that Santa was tied up in the WH bunker; well folks, THAT would be hearsay. Of course, we don’t need Scooter’s say so to prove there is a Santa, we already know there is.

There are some out of court statements that are not hearsay and they will figure prominently in the Fitzmas trial.

The first is prior statements by the witness on the stand. Remember, all or almost all of the witnesses in this case have testified in the grand jury, testified in a deposition or given a statement to the FBI or lawyers for the prosecution. If the prior statement was given under oath and differs from the testimony the witness is now giving in the trial, it may be used to “impeach” the witness’s credibility or show that the witness is now lying. If the statement is consistent with the testimony now being given by the witness at trial it may be used, regardless of whether or not is was taken under oath, to rebut charges that the testimony being offered is a recent fabrication.

So, “prior consistent statements” by, let’s say a reporter to another reporter or to his editor, can be used to prove that the reporter is not making it up are misremembering things two years later.

The second is called in Rule 801 (d)(2) a “admission by party-opponent,” but more often referred to an “admission against party interest”. Last Saturday night I was watching an old Tyrone Powers/Charles Lawton movie called “Witness for the Prosecution”. Marlene Dietrich played the wife of the accused and gets on the stand and testifies that on the night of the murder her husband came home covered in blood and said “I killed the old lady”.

Even though that was an out of court statement and offered by the prosecution to prove that Tyrone Powers was the murderer, it was allowed into evidence to prove that he committed the murder because it was a statement, made by a party to the case against his own interests in the case. The idea being, why would go you around saying something detrimental to your own interests unless it were true? Psychologists reading this know how unreliable that is, but shrinks didn’t write these rules. This exception applies to regular witnesses too, if the admission is against some interest of theirs and they are unavailable to testify at trial.

Some hearsay is allowed into evidence. These types of evidence are called hearsay exceptions (I think admissions against party interest should be classed as a hearsay exception, b/c it so clearly IS hearsay, but I don’t write these rules either). The hearsay exceptions are based on the idea that the circumstances surrounding them are such, that it is unlikely a person would be motivated to lie.

1) Present Sense Impression. That is someone describes to you something they are perceiving with one or more of their five senses as it is happening or immediately thereafter. A good example was a recent drunk driving case in Lawn Guyland. A guy got on a highway here, going the wrong way. People in other cars called up 911 and described, as it was happening, or right after they saw it, the car, the direction it was traveling and the speed and weaving manner it was traveling.

2) Excited Utterance. Similar to above but used to prove the declarant’s then state of mind, emotion, pain, etc.

3) Statements made for the purpose of diagnosis or medical treatment. The idea being that if you want the doctor to be able to help you, you will be motivated by self interest to tell the truth.

4) Statements made in fear of impending death. Deathbed statements are considered reliable b/c you are supposedly not going to lie just before you meet St. Peter.

5) Regularly Recorded records. I’m going to lump a bunch of separately listed hearsay exceptions here because they all operate on a similar principal. If you need to keep records for the purpose of relying on them yourself, business records, public records, religious records (marriage, baptism, etc), records of vital statistics, family records (family bible recording marriages, births etc), records and the statements therein relating to property ownership– all that kind of stuff—the idea is that you would not screw up your own ability to conduct you ordinary life’s business by putting down lies. I know, I know, two sets of books, fabricated evidence …… I hear you. Remember, just because it gets admitted into evidence does not mean you cannot contest its accuracy.

6) Market reports and similar tabulations. Think stock market ticker info, that kind of information. Again, because if it’s not accurate, there’s bigger problems than just one trial.

7) Learned Treatises. Textbooks and peer reviewed articles.

Now, there is class of hearsay that actually ISN’T hearsay, because it does not meet the full definition of hearsay. That is a statement that is not offered for the proof of itself. It is offered merely to prove that it was said. WHAAAAT? You say. What does that mean? Why would you want to offer a statement not to prove the truth of what was said?

Lots of reasons. For example, if I am on the stand and testifying about why I went to the store to buy a quart of milk on Monday, I will be allowed to testify that an hour before another person told me we were out of milk and needed to buy some more. It does not matter IF WE WERE ACTUALLY OUT OF MILK. The other person could have been mistaken or lying to me. The issue is not whether or not we were out of milk, it is why I went to the store to get milk.

Sometimes you offer statement not to prove the truth of itself, but expressly to prove that the out of court statement uttered to the person on the stand is demonstrably FALSE. Gee, can anyone name an upcoming trial where that might happen?? (Many raised hands.. Yes, you in the back—yes, you in the fishbowl. Ned , it it?).

You may also offer a statement to show absence of mistake, prior knowledge, or consciousness of guilt.  (See Rule 801(d)(1) for the exact rule on this.)

So, this is a fun set of rules for playing the “anticipate the testimony” game. Who can give examples of testimony we expect during the Fitzmas trial and how the hearsay rules will used to get it in?

I can’t wait to read this thread. This is gonna be fun. I’m going to print his one out and use it as a check off scorecard during the trial!

Related posts:

  1. The Bush Fairy Tale on the Libby Pardon
  2. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  3. Who really bombed Pan Am 103?: Evidence The US Bought The Megrahi Conviction
  4. Obama to Git-Mo Better Military Tribunals
  5. Bush’s Illegal Domestic Surveillance Program Also Expanded “Legal” Spying