A Quick Primer on the Hearsay Rule for the WSJ Law Blog
posted by Jeffrey Lipshaw
The Wall Street Journal Law Blog has a post on the Mitchell Report, and I thought I would do a public service by explaining the hearsay rule in response to this observation: “Well now, the names of 89 baseballers are forever besmirched, courtesy of an extra-judicial investigation which relied on hearsay evidence (e.g., unsworn testimony of clubhouse staffers).” This echoes the objection raised by Rusty Hardin, Roger Clemens’ lawyer, to the effect that the Mitchell Report “threw a skunk in the jury box.”
Federal Rule of Evidence 801(c) defines “hearsay” as follows: “‘Hearsay’ is 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.” Let’s put aside for the time being the “trial or hearing” phrase, because the fair question, looking particularly at the allegations regarding Clemens, is whether anything offered up by Brian McNamee (a strength and conditioning coach) was hearsay in the context of giving evidence to Mitchell.
- McNamee’s statement that he personally injected Clemens is not hearsay. The declarant is McNamee. He is describing an act, not a statement.
- McNamee stated that Clemens asked McNamee to inject him. Now Clemens is the declarant. But the statement is not be offered for the truth of an assertion. It is being offered for the fact of the request itself, which would seem to be relevant to the question whether Clemens knowingly used a steroid.
- At some point, according to the report, Clemens told McNamee that the steroids “had a pretty good effect on him.” Again Clemens is the declarant. The statement is not being offered for the truth of the assertion that the steroids did or did not have a good effect. The statement is being offered for the fact of the statement, which is relevant to whether Clemens used the steroids. [UPDATE: Views offered by several commenters below, including Howard Wasserman and Michael Risch, persuade me that this could be hearsay. After reflecting on this for a day or so, I'd agree that Clemens' alleged statement is asking the listener to add the implicit presupposition that he used the steroids. If you take the implicit requested presupposition as an implicit assertion, it is offered for the truth. But how does it differ from the following? The issue is whether a person was high on recreational drugs. The witness testifies that the declarant stumbled out of a room, and said "oh, wow, that was good shit." Put aside whether an exception (like excited utterance or present sense impression) applies. That just doesn't feel to me like a statement offered for the truth of the matter asserted.]
- Jose Canseco told Mitchell that he had conversations with Clemens about the benefits of Deca-Durabolin and Winstrol, including how to cycle and stack the steroids. In itself, this has marginal probative value, if any, as to the actual use of steroids. It is corroborative of McNamee’s testimony, however. But it is not hearsay.
The funny thing about this is that the WSJ Law Blog introduces the complaint by suggesting that a few non-lawyers said they agreed with Hardin’s objection. My experience is that lay people rely on repeated statements of a non-present declarant all the time, often consider it quite reliable, and are confused (as are many lawyers) about why it’s excluded only when it relates to the truth of the matter being asserted. Assuming that McNamee were to testify at a trial in which Clemens’ use of steroids were at issue, Hardin could cross-examine McNamee on the accuracy of McNamee’s own perception of the events or statements, but he wouldn’t be able to keep them out as hearsay.