Hearsay and the Detainee

When Blue Girl asked me to take on this assignment she made it clear she didn't want me writing legal briefs. Instead she wanted posts that were short and to the point. Given my email traffic on the new rules of evidence to be used in detainee trials, it is clear that I need to write something on the subject with a little more depth than I posted yesterday.

A lot will be written about the admissibility of coerced statements in detainee trials. Simply put coerced statements are almost universally held to be unreliable. From what I have read they are simply not considered admissible as evidence in any other trial any where in the civilized world. Making coerced statements admissible in detainee trials means America has descended into barbarism. Thanks Senators McCain, Specter and Graham.

A closer question is the admissibility of hearsay evidence. Every state in the Union has slightly different rules about hearsay, but they generally parallel those found in Rules 801-807 of the Federal Rules of Evidence. Rule 801 c defines "Hearsay" 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.” Rule 802 simply states that hearsay “is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.” The rules go on to provide that some statements that sound like hearsay are not considered hearsay. For example admissions of a party opponent or statements made “by a co-conspirator of a party during the course and in furtherance of the conspiracy” are not considered hearsay. The Rules then provide for two groups of exceptions to the general prohibition against hearsay. Rule 803 lists 24 pretty classic exceptions where the availability of the declarant is immaterial. Rules 804 provides six exceptions where the declarant is unavailable, including statements made in belief of impending death and statements made against a party's interest.

Rule 807 outlines a residual hearsay rule which is essentially any “statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness,. . . if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.”

In all cases under the normal Federal Rules of Evidence the burden is on the party asking for the admission of hearsay to fit the statement within a particular exception including the residual hearsay rule.

Contrast the classic approach with the Hearsay Rules outlined in the Manual for Military Commissions. Those rules are ironically numbered Rules 801-807 and are found starting at about page 213 of the manual. The numbering may be the same but the manual turns the classic hearsay rule on its head.

“Rule 802. Hearsay rule.Hearsay may be admitted on the same terms as any other form of evidence except as provided by these rules or by any Act of Congress applicable in trials by military commissions.”

The notes to the Rule state the “M.C.A. recognizes that hearsay evidence shall be admitted on the same terms as other evidence because many witnesses in a military commission prosecution are likely to be foreign nationals who are not amenable to process, and other witnesses may be unavailable because of military necessity, incarceration, injury, or death” Of course, those are all valid concerns but it was really unnecessary to make hearsay generally admissible. The authors could have easily carved out an “availability” exception. Instead they chose to shift the burden to the party questioning the hearsay. “Hearsay evidence otherwise admissible. . . . shall not be admitted if the party opposing the admission of the evidence demonstrates by a preponderance of the evidence that the evidence is unreliable under the totality of the circumstances.” Rule 803 MMC. As a practical matter shifting the burden greatly favors the government. The government has all the resources and all the access.

If I were creating a kangaroo court, I would install the hearsay rules found in the new Manual for Military Commissions.