A very brief primer on hearsay

After Cassidy Hutchinson’s sensational testimony on Tuesday, June 28, 2022, Trump and his defenders badly want to discredit her, and they’re throwing everything they can think of at the wall, hoping something will stick.

“One of the common themes of the smear campaign [against her] was the charge that her statements were all hearsay,” MSNBC reported two days later (read story here); and they’re clearly using the word “hearsay” as a pejorative to imply her testimony is unreliable.

Most of Hutchinson’s testimony wasn’t hearsay. The most important part that was, is the story about Trump lunging for the steering wheel of the limo when told he was being taken to the West Wing instead of the Capitol. She wasn’t in the limo; she heard that story later from Tony Ornato, a Secret Service agent and White House aide (whose own credibility is dicey; see story here).

What is hearsay?

Black’s Law Dictionary defines it (here) as “testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others.” The Washington Rules of Evidence define it (here) as “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.”

In layman’s language, hearsay is something you’ve heard, as opposed to witnessing it yourself.

The general rule is hearsay is not admissible in court to prove the substance of what was said. An example of hearsay is, “John told me the car was speeding.” A statement, “I saw the car speeding,” is not hearsay.

“Hearsay” doesn’t mean “untrue.” Hearsay testimony is capable of being true, is not intrinsically untruthful, and sometimes is admissible; the evidence rules allow certain exceptions. Nor is hearsay excluded due to unreliability; it’s excluded because it can’t be cross-examined.

The law recognizes hearsay can be reliable, otherwise there wouldn’t be exceptions. And in Washington, the hearsay exclusion is relaxed in the evidence rules governing administrative hearings (see those rules here). There, hearsay evidence “is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs.” Many business decisions, for example, are based on second-hand information.

Federal and other states’ hearsay rules and practices are similar to Washington’s. The treatment of hearsay is one of the commonalities in American law.

So, hearsay testimony can be reliable, and sometimes is accepted as evidence in legal adjudications. And the hearsay rule doesn’t even apply in congressional hearings, which are fact-finding affairs, not adjudications that determine people’s rights. So, claims that Hutchinson’s testimony in the House Jan. 6 hearing was improper because some of it was hearsay are specious. What really matters is not the character of her testimony, but its accuracy and truthfulness.

Trump and his defenders are entitled to rebut her claims. Fair enough. But it’s one thing to do it by squeaking in the press, and another to testify under oath. She testified under oath, and lying to Congress is a felony; let them testify under oath, subject to the same penalties for lying.

Chances are the committee already has corroborated Hutchinson’s account with other sources. As Newsweek pointed out, it’s unlikely they would expose her to being disproven (see article here). Others have predicted if those with knowledge of the matter and disputing her claims are called to testify, they’ll take the Fifth.

Courts try to determine the truth when factual matters are contested, and while this is a congressional hearing where court rules don’t apply, the practice of courts can be instructive. When a witness testifies, the burden of rebuttal is on the opposing side. So let those seeking to discredit her come forward with something that disproves what she said. If they don’t, and there’s no reason to disbelieve her, her story should be accepted as the truth.

I guess we’ll wait and see where this goes.

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