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The dominant counter-narrative
against the whistleblower complaint is that it is hearsay,
and the critics' claim
that the whistleblower complaint is hearsay
is absolutely true.
In places, it's actually double hearsay,
but this probably isn't the criticism
that you think it is.
(stirring music)
Hey, Legal Eagles, it's time to think like a lawyer,
because certain American presidents
and certain Republican senators from South Carolina
seem to have forgotten how to do that.
Recently, Lindsey Graham and many others,
including the President of the United States,
are disputing the veracity of the whistleblower complaint
and the readout transcript
of the phone call with the Ukrainian president
on the basis of hearsay.
You can find many prominent Republicans going on cable TV
and complaining that the whistleblower complaint is hearsay,
and therefore should be disregarded.
- The whistleblower wasn't on the call.
The IG, Inspector General, didn't read the call.
The president did nothing in this phone call
that's impeachable.
- You can also find them on Twitter
basically recapitulating the same thing,
that the whistleblower complaint
and the readout and the transcript should be disregarded
on the basis that it's hearsay.
Lindsey Graham has gone so far as to say
that you can't even get a parking ticket
in the United States on the basis of hearsay,
and that's somehow the basis for potential impeachment
of the President of the United States.
- This seems to me like a political setup.
It's all hearsay.
You can't get a parking ticket conviction based on hearsay.
The whistleblower didn't hear the phone call.
- Recently, the White House has been scrambling
to counter the bombshell allegations
of the whistleblower complaint and the Ukraine transcript.
As an aside, when critics fight the process
instead of the substance of an argument,
it tells you a lot about the weaknesses of their defense.
You might have heard of damning with faint praise.
Well, this is praising with faint damnation.
Well, first, let's talk about the nature of hearsay.
What is hearsay?
Hearsay is an out-of-court statement
offered to prove the truth of the matter
asserted in that particular statement.
Out-of-court just means it's not under oath
and not made in the particular proceedings
that are occurring at the time,
and offered to prove the truth of the matter asserted
is that you are relying on the veracity
of the statement itself,
as opposed to some other reason.
So, for example,
let's say I testify in court that Will from Knowing Better
said LegalEagle is the greatest YouTube channel
that exists today.
Now, if I were trying to prove
the truth of the matter asserted,
that LegalEagle is, in fact,
the best YouTube channel out there,
then that would be hearsay,
'cause I'm using the truth of the matter asserted.
- What does that mean?
Basically, whatever you want it to.
There is no, look.
- However, if I am simply using that as evidence
to show that Will has seen LegalEagle
or that he knows how to speak English,
that's not using the truth of the matter asserted
in the statement,
and therefore, would not be considered hearsay
despite the fact that it is still evidence
of something that someone else said outside of court.
Also, another thing that trips up a lot of people
is that photos, videos, and audio recordings
themselves are hearsay.
They are recordations of statements
that are made outside of court,
so you need a hearsay exception
if you're going to admit things like a video recording
or an audio recording into court.
As you're probably aware,
hearsay is often inadmissible in court,
but it's often admissible as well.
It depends on the rules of evidence
and it depends on the exceptions to the hearsay rule.
It also depends on the tribunal.
In fact, my understanding
is that in many civil law countries,
hearsay is always allowed,
and whether the evidence is considered strong or weak
is left to the trier of fact.
There's no blanket rule that hearsay
needs to be excluded.
But in the American judicial system
and the American tradition,
hearsay generally is not admissible
because you can't cross-examine
the person who is making the statement.
And you also can't check the credibility
of the person whose statement is being elicited into court.
Basically, it's a due process issue
more so than the common belief
that hearsay is just bad evidence
and should not be admitted.
It's more about not being able
to cross-examine the declarant.
On the contrary,
the rules of evidence in almost every state
and the Federal Rules of Evidence have tons of exceptions
where you allow hearsay into evidence.
American courts recognize that, like any kind of evidence,
hearsay can be very strong or it can be very weak.
It depends on the circumstances.
That's why, generally,
you would look for corroboration to the hearsay statement
or you would try and find counter-evidence
to the hearsay statement as well.
There's absolutely no blanket rule that says
hearsay is necessarily bad evidence,
and is not probative to the issue at hand.
You can imagine a circumstance where a murder victim
screams out, "Oh, my God, Mike Myers is killing me,"
right before Mike Myers kills them,
and that would be pretty good evidence
that that person actually did the killing.
But you might also imagine another circumstance
where someone simply just makes up a statement
that they claim they heard.
It depends on the particular circumstance,
and you have to take these hearsay statements case-by-case
to determine whether it itself is strong
or particularly weak.
It's sort of like the difference
between direct and circumstantial evidence.
Often, laypeople say that circumstantial evidence is weak
and direct evidence is very strong,
where in actuality in the court,
sometimes direct evidence like eyewitness testimony
is actually very weak,
because people have false memories,
they don't remember things particularly well.
Direct evidence, often in the form of eyewitness testimony,
can be extraordinarily weak.
On the contrary, DNA evidence, for example,
is 100% circumstantial.
But DNA evidence can often be
the strongest evidence that's out there.
So, just as the difference
between direct and circumstantial evidence
depends on the particular evidence at issue,
it can be weak or strong,
so too can hearsay be weak or strong
depending on the circumstances
and depending on the corroboration or lack thereof.
And as you're probably aware,
there are a lot of exceptions to the hearsay rule.
In fact, the exceptions probably swallow the rule itself.
It's actually kind of hard for practitioners
not to be able to get hearsay evidence
into evidence in court proceedings.
In the Federal Rules of Evidence,
you can find the exceptions to the hearsay rule
in FRE 801, 803, and 804.
Some of these exceptions
are called non-hearsay for some reason,
so if it falls into the particular exception,
it's actually considered not hearsay.
I don't know why that distinction exists.
Other hearsay exceptions actually rely
on the declarant being unavailable.
But in any event,
if a hearsay statement falls into one of these exceptions,
then that hearsay statement is admitted into court,
and the fact finder is able to consider the evidence
whether it's strong or weak.
So, since my practice often involves
the Federal Rules of Evidence,
let's take a look at the most recent allegations
and pieces of evidence
under the rubric of the Federal Rules of Evidence.
Now, President Trump's incriminating statements
to the Ukrainian President Zelensky
are probably admissible on their face
as binding admissions against him
under Federal rule of evidence 801(d)(2),
which are admissions by a party opponent.
In this case, a prosecutor would be able to use
the statements made by a defendant,
or in this case, the President of the United States,
against them.
In fact, Federal rule of evidence 801
is one of those sections
that considers something not hearsay.
So, statements by a party opponent
are actually not even considered hearsay
in the first instance.
And even if that wasn't the case,
that Donald Trump was not a party to these proceedings,
potentially, impeachment proceedings,
the statements would still be admissible
under the exception to the hearsay rule 804(b),
which is a statement against someone's interests.
The declaration against interest exception
stems from the idea that if you say something
that is against your penal interest,
odds are, you're probably being pretty accurate,
because why else would you testify, basically,
against yourself?
Additionally, the things that President Trump is accused of,
which includes extortion, bribery,
and abusing the office of the presidency for personal gain,
would almost certainly be considered legal acts.
Legal acts are things that occur
using statements that carry with them
their own kind of legal significance.
For example, if you thought about a written contract,
well, those are just written words that are on a page,
and as I said before,
documents themselves are considered hearsay.
But a contract is not considered hearsay
because you're not using it
for the truth of the matter asserted
so much as the legal act itself of forming a contract.
And the things that President Trump has allegedly done
would consist of words that form themselves
into a legal act.
Like, how else would you commit the act
of bribery, extortion, or abuse of power
without using those words themselves?
So, in that particular circumstance,
those legal acts would not themselves be considered hearsay.
Apart from President Trump's statements himself,
the readout or memorandum of the call
between President Trump and President Zelensky
would probably be admissible
under a number of separate exceptions to the hearsay rule,
including 803(1), the present sense impression,
803(5), a recorded recollection,
803(6), a record of a regularly conducted activity,
or 803(8), a record of a public office.
Business and governmental records
are often admitted into court
using one or more of those exceptions.
Some of those exceptions require you
to show a certain chain of custody,
but in this particular case,
the White House released it directly
and has admitted the veracity of the particular call,
so I'm not sure that you would run into
those particular issues in this case.
Now, when you have double or triple hearsay,
like when someone says,
"He said that this other person said this other thing",
you can admit that, too,
but you need exceptions for every level.
So, that takes us to the whistleblower complaint itself,
which, indeed, would be considered hearsay,
as any document would be considered hearsay,
and it contains hearsay in the form of things
that other people said.
So, in order to admit that into court,
you would need to have an exception for both levels.
In here, the first-hand witnesses
are probably conveying a present sense impression
into a recorded recollection, business record,
or record of public office.
That covers those two levels,
and to the extent that a witness is conveying something
that President Trump said,
to the whistleblower, that's considered triple hearsay,
but again, so long as you have exceptions for each level,
it would indeed be admissible.
Here President Trump's statements are both legal acts,
and therefore not hearsay,
and admission by a party opponent,
again, a non-hearsay/exception to the hearsay rule.
Now, you can correct me if I'm wrong,
but I don't think anyone is disputing
that the whistleblower complaint would not be as strong
as the more primary pieces of evidence
that the whistleblower actually relied on.
And as always,
you would want to corroborate or disprove
the statements of the whistleblower.
And in fact, one such piece of primary evidence
is the transcript itself.
What's incredible here is that the whistleblower complaint
is so close to the transcript.
It's not 100% accurate, but it's damn close.
So, now that we have the readout
of the Trump-Zelensky phone call,
there's no reason to use
the whistleblower's secondhand account of that phone call
when we can just turn to the readout itself.
And if the verbatim transcript or the audiotape
of this particular phone call ever comes out,
we'd want to use that instead of the readout.
So, it's absolutely true that the whistleblower complaint
contains hearsay and double hearsay.
It's all the more reason
to talk to the intelligence community Inspector General
who did an investigation following up
on the whistleblower complaint,
or the first-hand witnesses that witnessed
President Trump and President Zelensky
either have the conversation
or who witnessed other people cover up that conversation.
And it's all the more reason to examine the documents
that were generated as a result
of this conversation and others
and that were potentially hidden
in a code-word-secured database away from everyone else.
So, it's odd, and perhaps a little disingenuous
to focus on the hearsay nature of a whistleblower complaint
when we already have evidence in the form
of the transcript of the call itself
that corroborate some of the allegations
in the whistleblower complaint.
So, the whistleblower-complaint-is-hearsay argument
is probably not as strong as Lindsey Graham thinks it is,
and it's absolutely inchoate
in the context of the actual primary evidence,
like the transcript.
When the underlying evidence is out,
focusing on the complaint is a little bit
like the Wizard of Oz saying,
"Don't pay attention to the man behind the curtain."
Oh, and by the way,
even if hearsay weren't admissible in court,
which it often is,
hearsay is used all of the time in front of grand juries
to seek an indictment.
Now, impeachment is not the same
as a regular criminal indictment.
We'll talk about that in a second.
But notwithstanding,
prosecutors get indictments using hearsay all the time.
They're not bound by those same rules of evidence.
But even if we were going to talk
about the rules by which the Senate
will conduct an impeachment trial,
the Senate rules allow for the use
of hearsay in an impeachment.
It even went to the Supreme Court
in Nixon v. the United States in 1993.
That's not president Nixon, but a judge named Walter Nixon.
And as you might recall, since history repeats itself,
the last presidential impeachment was started
by one of the most famous examples
of hearsay in modern times.
Linda Tripp secretly recorded her conversations
with Monica Lewinsky
as she talked about her affair with President Clinton.
That was hearsay as well.
So, critics are right that the whistleblower complaint
and some of the evidence contained therein
is considered hearsay.
It's just not the defense that they think it is.
Now, if you wanna learn how to make good arguments,
or at least better arguments than Lindsey Graham,
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So, improve yourself now
so you can start making non-hearsay arguments.
Do you agree with my analysis?
Leave your objections in the comments
and check out my other real law reviews over here
where I will see you in court.
Allegedly.