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Sorry, Mr. President, most criminal investigations begin with ‘hearsay’

Despite what Republicans say, ‘hearsay’ isn’t synonymous with ‘unreliable information.’

Sen. Lindsey Graham (R-S.C.) takes questions from reporters at the Capitol in Washington, Sept. 25. Graham has dismissed the whistleblower complaint as “hearsay.” (J. Scott Applewhite/AP)

Republicans have tried to discredit the whistleblower report at the heart of the Ukraine controversy by calling it hearsay. “You can’t get a parking ticket conviction based on hearsay,” Sen. Lindsey Graham (R-S.C.) complained last weekend on “Face the Nation.” “The whistleblower didn’t hear the phone call.” Trump tweeted Tuesday that the report “has all second hand information,” and he has claimed (falsely) that the rules governing whistleblowers were recently changed to allow reporting of events not witnessed firsthand.

“Hearsay” has a precise legal definition, and hearsay rules apply only during civil or criminal trials, but Republicans are using the term in a much looser sense. When they say “hearsay,” they seem to hope that Americans will hear “rumor.” Perhaps they think the public will imagine a courtroom scene from “Law & Order,” where an attorney jumps up and shouts, “Hearsay!,” after which a judge considers the matter carefully and says: “Sustained! The jury will disregard.”

None of this makes much sense. The first problem with the Republicans’ hearsay defense is that the White House’s rough transcript confirmed much of what the whistleblower was told by several officials. But even if that memo had not been released, the complaints about hearsay would be missing the mark. Hearsay does not mean “unreliable information,” and it can play an important and legitimate part in many kinds of investigations and legal proceedings. So while Trump and his allies are correct that the whistleblower report could not, by itself, be introduced as evidence in a criminal trial, that’s entirely beside the point. 

Hearsay — to simplify a bit — refers to statements made outside of court. If a witness sees a truck hit a car, and his sister tells him that she saw the truck run a red light immediately beforehand, the witness can testify only to the accident. If he repeats what his sister told him about the red light, that is hearsay. The sister would have to come in to tell the jury directly what she saw.

There are exceptions to the ban on hearsay evidence. If a statement was made under oath, at a previous hearing or deposition, the Federal Rules of Evidence assume that under certain circumstances it is reliable enough to be admissible, even if the speaker does not appear in court. There’s also a “dying declaration” exception: If a man on his deathbed proclaims that his son killed the family cat, that, too, can be used in court. The law assumes (rightly or wrongly) that people who think they are dying are more likely to tell the truth. 

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To be considered hearsay, a statement must not only have been made outside court but also put forward to establish the truth of whatever was said. As in: The truck really did run the red light. Some secondhand statements are introduced to show someone’s state of mind — that they were angry, say (in which case the statements could be admitted).

These are important rules for trial lawyers, but they have little to do with the whistleblower complaint, which was not introduced at a trial. And using hearsay is entirely acceptable in all sorts of contexts, including formal investigations. 

Law enforcement is expected to use hearsay to lead to more direct sources of information. If police are trying to solve a murder, and a woman tells them she has heard from several people that her neighbor was the culprit, they don’t discount that statement because it isn’t firsthand; they follow that lead in search of direct evidence. That’s pretty much what happened with the whistleblower complaint: It prompted officials to seek the rough transcript, which is not hearsay. And on Thursday, the House deposed the former special U.S. envoy to Ukraine, Kurt Volker, who provided incriminating text messages, among other evidence.

Grand juries, which decide whether formal criminal charges can be brought against a suspect, can also rely on hearsay — weighing things a police officer testifies she heard during her investigation, for instance. The impeachment inquiry in the House will determine whether the Senate should proceed with a trial, making it analogous to grand jury proceedings. So there would logically be no ban on hearsay in that context. What’s more, impeachment trials in the Senate don’t follow the rules of criminal trials, so hearsay could be introduced there, too, if the Senate chose to allow it.

The nugget of truth in the Republican talking point is that suffering consequences solely because of hearsay can feel unfair — and can sometimes be unfair. But if Graham and others are truly concerned about such apparent injustices, they might focus instead on hearsay’s use in instances that harm the lives of those less powerful than the president. I worked as a public defender for five years in the Bronx, and I saw hundreds of people arrested, handcuffed, fingerprinted, interrogated and detained — all on the basis of hearsay. This is utterly routine in the American criminal justice system. One police officer writes a complaint saying that a different officer saw a man hand a package to another man. The officer says that in his judgment it was a drug sale, and suddenly, before any substances have been tested or witnesses heard, a person is taken from his life, job and family, and thrown in jail. If the grand jury in that case relies on hearsay in issuing an indictment, the person can be incarcerated for months or years, awaiting trial.

The defendants in such cases might later get their day in court (if they aren’t coerced into taking a plea deal first), where the hearsay rules do apply. But those rules don’t apply in all courtrooms. Judges in immigration court rely on hearsay regularly when denying people asylum or other forms of relief, for instance.

Meanwhile, prisoners who wait years for a parole date can be denied by parole boards if a guard reports hearing a secondhand account of a rule violation. Federal judges are free to consider hearsay evidence at sentencing, in deciding how much of the rest of their life someone spends in prison.

The unquestioning use of hearsay does present problems, and we might consider tightening the rules in various non-trial contexts. But the Republican complaints ring hollow in the current controversy. Impeachment proponents would be naive to rely exclusively on hearsay in building a case against President Trump — and they aren’t doing so. They know they face an uphill battle in the Senate and want to make the strongest case possible. The House is already subpoenaing people with firsthand knowledge of the Ukraine call and the surrounding events and moving toward demanding documents of relevant calls with other world leaders. Unlike immigrants facing deportation, criminal defendants facing jail and parole candidates facing longer sentences, the president is in absolutely no danger of suffering penalties on the basis of hearsay alone.

Twitter: @SarahLustbader

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