Hearsay, Hearsay!
Hearsay, Hearsay! by Josh Simmons, J.D. Candidate, Class of 2023
On June 28th, the House Judiciary GOP tweeted out “It’s literally all hearsay evidence. What a joke” —in reference to the recent hearings held by the House Select Committee on the January 6th Attack. House Judiciary GOP (@JudiciaryGOPD), Twitter (June 28, 2022, 10:19 AM), https://twitter.com/JudiciaryGOP/status/1541833774966636544.
The tweet raises eyebrows among those familiar with the concept of hearsay evidence. For one, House Rules state that “the committee is the sole judge of the pertinence of testimony and evidence adduced at its hearing.” House Rule XI cl. 2(k)(8). Therefore, hearsay and other evidentiary rules found in the Federal Rules of Evidence do not apply to the Committee. See also Co-Equal, Guide to Oversight Procedural Rules in the U.S. House of Representatives, RESOURCES, https://www.co-equal.org/guide-to-oversight#guideIntro (last visited June 29, 2022). It is unclear, then, why the House GOP would make this argument. Perhaps they are lamenting because, in a proper court setting, the statements would be inadmissible.
Except that may not be the case, either. Even if they were hearsay, out-of-court statements by witnesses could still be admissible. With understandable reticence, let’s return to evidence class. Hearsay is, of course, an out of court statement used to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). Hearsay is not admissible for any purpose… unless it is. See Fed. R. Evid. 803 & 804 (covering the many exceptions to hearsay). And let’s not forget Rule 807, the “hail-mary” of hearsay admissibility. See Fed. R. Evid. 807 (hearsay is admissible if it comes with guarantees of trustworthiness and is more probative than anything else the proponent can come up with). Hearsay is a convoluted area of law, to be sure. The general intent behind hearsay, however, is to sift reliable forms of evidence from the unreliable.
Hearsay is inadmissible because it is generally seen as unreliable. A statement made outside of court is hard to verify. Some exceptions exist, sure, but typically these exceptions are made credible by other means: such as the statement being contained within an official document, or the statement was made by someone unlikely to lie. The exceptions to hearsay are more like allowances, then— extending credibility where it is due.
Therefore, the House GOP cries of “hearsay!” may not be commentaries on actual hearsay law, but an indictment of unreliability. If a piece of evidence is hearsay, it is immediately in doubt. Perhaps this is what they are trying to say. Legal scholars arguing the finer points of hearsay evidence, then, are missing the point. The point is not a hypothetical exercise where the rules of hearsay apply, the point is that the GOP sees Committee witnesses as unreliable and perhaps the whole inquest as farcical.
Similar objections arose from the GOP during the 2019 impeachment of then-president Donald Trump. See Mathew Barakat, AP Explains: What’s wrong with hearsay evidence in Congress? AP (Nov. 15, 2019), https://apnews.com/article/donald-trump-ap-top-news-laws-politics-impeachments-1c7e4526345148d292fef46e7da9e701. The House called witnesses who spoke against Donald Trump, The GOP decried most of it as mere hearsay. Similar eyebrows were raised at these claims, too. Lawyers said that hearsay didn’t apply and, even if it did, the evidence would likely be admissible. But again, that probably wasn’t the point. Rather, the point the GOP really wanted to make was that the impeachment trial was illegitimate because the evidence given was unreliable.
That strategy is repeated here. Once again, hearsay is invoked by the GOP to cast doubt on witness statements, thereby painting the Committee hearings as unsubstantiated. Whether this is seen as a desperate attempt to undermine the proceedings, or a legitimate concern furthered by House GOP members, varies by personal opinion. One thing that remains true (which has always been so) is that when transferring legal concepts to political realities, oftentimes things get lost in translation. Words like “hearsay” may mean one thing to legal scholars, but another thing entirely to the general public or even different political groups. Therefore, it is important to first hear what is actually being said before arguing the finer points of a thing.
