https://www.msnbc.com/opinion/msnbc-opi ... y-n1296674June 30, 2022, 5:30 AM EDT
By Steve Vladeck, MSNBC Opinion Columnist
Former President Donald Trump and his supporters were quick to try to discredit former White House aide Cassidy Hutchinson’s damning Jan. 6 committee testimony on Tuesday. One of the common themes of the smear campaign was the charge that her statements were all “hearsay,” a hand-waving response deployed by, among others, the Twitter account for Republicans on the House Judiciary Committee and conservative commentator Erick Erickson.
The not-so-subtle insinuation is that Hutchinson’s testimony isn’t credible — that no one should believe what she said because it is hearsay. The reality is both a lot more complicated and a lot less of a criticism than those leveling it want you to believe. At the risk of bringing nuance to a mud fight, here goes.
The textbook definition of hearsay is “an out of court statement offered to prove the truth of the matter asserted.” In other words, someone says something (or writes something down), and one side in a legal dispute wants to use that statement in a trial to prove not that the statement was made (that’s usually fine), but that its substantive content is correct. Imagine I saw John Doe jaywalking and told my friend Mike. It’s not hearsay if I testify about what I saw. But it is hearsay if Mike testifies as to what I told him I saw. The default rule is that such evidence is inadmissible — because it’s unreliable; just because I said something to Mike is n’t evidence that what I said is true, whereas my testifying to what I saw firsthand is. (The Constitution even enshrines a form of the hearsay rule, guaranteeing criminal defendants the right to “confront” witnesses against them.)
With all of that having been said, there are three critical caveats to this (seemingly) broad understanding. First, hearsay applies only to judicial proceedings — to contexts in which hearsay is potentially being used to formally establish someone’s legal liability. (Hence the definition’s focus on out-of-court statements.) There’s no comparable hearsay rule in the court of public opinion or, as relevant here, in congressional proceedings, because there’s no formal establishment of liability in either. And no defendant whose right to confront adverse witnesses is at stake. Thus, even if every single word of Cassidy Hutchinson’s testimony on Tuesday would have been hearsay had it been given in court (and it wasn’t), that doesn’t make it inappropriate fodder for Congress.
Second, as anyone who has suffered through a law school evidence class can tell you, the hearsay rule is riddled with both exemptions and exceptions — circumstances in which statements that might otherwise appear to be hearsay are admissible, because they come with far fewer reliability concerns or they are far more likely to be probative (evidence of something relevant) or both. For instance, the Federal Rules of Evidence (which apply to all civil and criminal trials in federal court) don’t treat as hearsay many statements made by a “party opponent”; that is, someone on the other side of the dispute. So if Mark Meadows were charged with a crime, statements he made to Hutchinson wouldn’t be hearsay at all. And if a co-conspirator makes an admission to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, that can be admitted against all co-conspirators. In that respect, even if Hutchinson’s testimony had been part of a criminal proceeding (and, once again, it wasn’t), her testimony about what she saw and much of her testimony about what others told her wouldn’t have been hearsay under the Federal Rules of Evidence at all.
Even when statements do meet the definition of hearsay, they can still be admitted in court if they satisfy one of the “exceptions” to the hearsay rule.
Third, even when statements do meet the definition of hearsay, they can still be admitted in court if they satisfy one of the “exceptions” to the hearsay rule. For example, in federal court, witnesses can testify about “present-sense impressions”; that is, statements someone made about an event during it or immediately after it happened. Hutchinson’s testifying about text messages she exchanged with Meadows and others on Jan. 6, 2021, certainly meets that definition. The same is true for “excited utterances,” like Hutchinson’s testimony about Trump’s throwing his lunch against the wall. The Federal Rules of Evidence also allow witnesses to testify about “statements against interest” that others made to them, so long as the people who made the statements are unavailable — including because they have refused to testify themselves despite having been subpoenaed.
In other words, even if hearsay rules applied to congressional hearings (and, one last time, they don’t), the overwhelming majority of Hutchinson’s testimony would likely have been admissible — either because it wasn’t hearsay in the first place or because it was admissible hearsay owing to the nature of the statements and/or the refusal of those who made the statements about which she testified to put themselves in front of the Jan. 6 committee.
Were this a criminal trial, the one line of testimony about which there might be a colorable argument is Hutchinson’s statements about what Tony Ornato — a Secret Service agent who was the White House deputy chief of staff for operations — told her about Trump’s alleged altercation with a member of his Secret Service detail as he was leaving the Jan. 6 rally. But there are still several possible grounds on which even that statement might be admissible in a criminal trial, especially if there were other indications of the statement’s reliability or if Ornato refused to testify.
Of course, none of this proves that Hutchinson was telling the truth. The best evidence of that isn’t the applicability (or lack thereof) of hearsay rules; it is that Hutchinson gave her testimony under oath (lying to Congress is a felony whether you’re under oath or not, but the oath also raises the specter of perjury charges). And it doesn’t matter whether or not this current administration would decline to prosecute her; the statute of limitations for that offense is five years, meaning Hutchinson would be taking a heck of a risk by knowingly making false statements in her testimony.
The point here is one that even lawyers often forget — that Hutchinson’s testimony isn’t just about evidence; it is evidence itself. And that evidence is deeply important to the Jan. 6 committee’s work of fully unearthing the events leading up to and culminating in the violence at the Capitol. People are free to choose not to believe her (people are free to believe the Earth is flat), but contra the claims of Trump’s defenders, there’s just nothing inherently unreliable about virtually all of Hutchinson’s testimony and nothing inappropriate about the committee’s soliciting it and relying upon it.
Steve Vladeck
Steve Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast).
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