A Primer on Hearsay
The GOP talking point so far seems to be that everything in the whistleblower complaint is hearsay and thus should be thrown out. As a lawyer, I thought it might help those in the community here to know exactly what hearsay is and what it isn’t.
Let’s start with the basic definition of hearsay. Hearsay, generally speaking, is an out of court statement offered in court for the truth or veracity thereof. Or as Federal Rule of Evidence 801 states:
Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Now, here’s the thing: pretty much everything is hearsay. Which is why there are a whole lot of exceptions to hearsay. See, for example, Federal Rule of Evidence 803. And it’s quite possible that several of the statements made to the whistleblower fall under various exceptions.
The first exception is “Present Sense Impression.” Which is defined as:
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Now, we don’t know when the other witnesses passed information to the whistleblower, but it’s very possible, even likely that they were made “immediately after the declarants [the witnesses] perceived it.” If so, it becomes closer to admissible evidence than hearsay. Ideally, we would want the direct witnesses to provide testimony, but if the whistleblower has notes or records that maybe sufficient.
Second is the “Excited Utterance”, similar to the present sense impression but made about “a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Again, depending on the timing of when information was relayed to the whistleblower, some of the statements may be excited utterances. Again, it would be best if the other witnesses testified.
Some other exceptions that will likely be of note - “Records of Regularly Conducted Activities” and “Public Records” are also, by definition not hearsay. And that’s definitely going to make the readout/transcript from Wednesday admissible. As will the Congressional testimony that happened today and will continue to happen over the coming weeks.
Now, here’s the other thing, when you start a criminal investigation or a law suit, you’re often relying on hearsay. Because, again, pretty much everything is hearsay within the technical definition. Once you have reports of illegal or unlawful conduct, you investigate, you get direct statements regarding the events and collect other evidence.
And that’s where this argument gets particularly stupid, because the readout/transcript that was released on Wednesday confirmed what was in the whistleblower complaint today. The documents the White House have released so far constitute direct evidence, they are clear and obvious statements against interest.
If someone tells you that the complaint is hearsay, point out that there are public records corroborating the allegations, and that further testimony will likely determine whether or not the allegations within the complaint constitute exceptions to hearsay.