Many Americans have been disturbed at the manner in which the impeachment hearings have been conducted. Judge John Wilson (ret.) analyzes the process.
There are certain principals that all Americans hold near and dear to their hearts. “The Defendant deserves a fair trial.” “The Defendant is entitled to confront the witnesses against him.” “The Defendant is presumed innocent until proven guilty.” Clearly, Congress is not a Court, and an impeachment inquiry in the House of Representatives is not a trial. Nonetheless, for a majority of Americans, on the right, and quite a few in the middle, there are certain aspects of the current impeachment hearings against President Donald Trump that are disturbing and dangerous.
Much of the country was not riveted to their TVs while career diplomats William Taylor and George Kent discussed their concerns over President Trump’s infamous telephone call with the President of the Ukraine, Volodymyr Zelensky. In particular, Taylor testified that “a member of his staff overheard EU Ambassador Gordon Sondland on July 26 (2019) discussing the investigations on a phone call with Trump.”
Legally, this testimony would be considered hearsay – that is, “an out-of-court statement, made in court, to prove the truth of the matter asserted.” “At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability… The rule against hearsay was designed to prevent gossip from being offered to convict someone.”
There are, of course, exceptions to the rule against the admission of hearsay evidence. For instance, an excited utterance – a statement made about a startling event close in time to that event, about the event – is admissible, as is a present sense impression – a description of an event made either during the event, or immediately after it. A good example of an excited utterance, is a witness testifying they heard someone yell “slow down!” just prior to a car crash, or that same witness testifying that he heard someone say “I knew they were going too fast,” right after an automobile accident.
Apparently, this time-honored rule is not applicable to the House impeachment hearings. In a statement which received much attention, Representative Dan Quigley (D-IL) stated “Hearsay can be much better evidence than direct, as we have learned in painful instances and it’s certainly valid in this instance.”
To be fair to Representative Quigley, I believe he meant to say “circumstantial evidence,” and not “hearsay.” But even this statement would be incorrect. Direct evidence – that is, the testimony of a witness who observed the event, is always superior to circumstantial evidence (evidence which tends to show that the event happened and that the defendant did it – for instance, a blood stain on a defendant’s shirt that matches the blood type of the victim).
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Other media outlets also rushed to defend Quigley interpretation of the law. GQ entitled an article, “What is Hearsay, and Why Are Republicans Making a Fuss About it?” NBC News also defended the use of hearsay evidence against the President in their article, “Republicans blasted ‘hearsay’ impeachment testimony. But they were in Congress, not court.”
As disturbing as this development may be, even more chilling is the recent statement made by Speaker of the House, Nancy Pelosi (D-CA); “If the President has something that’s exculpatory – Mr. President, that means you have anything that shows your innocence – then he should make that known. And that’s part of the inquiry. So far we haven’t seen that.”
Putting aside the condescending tone used by Speaker Pelosi, all Americans should be concerned that an elected member of Congress, sworn to uphold the Constitution of the United States, an experienced lawmaker, should exhibit such a fundamental disregard for the rule of law.
The phrase, “Innocent until proven guilty” has its origins in the 1789 French Declaration of the Rights of Man. It was a hallmark of British jurisprudence throughout the 19th century, and was formally adopted in the United States in 1894, in the US Supreme Court case of Coffin v US. (For an extensive discussion of the history of the concept, see here:
It is bad enough for a member of Congress to misquote and misunderstand a legal standard for the admissibility of evidence. But for a leader in Congress to call upon the President to provide proof of his own innocence is shocking in its ignorance. Granted, a Congressional investigation is not a legal proceeding, per se, and Congress is not a Court of law. Yet, this inquiry is similar to a Grand Jury proceeding. It is intended to result in an “indictment” – that is, a recommendation to the full House as to whether or not Articles of Impeachment should be voted on, adopted, and then referred to the Senate for trial.
Of what use is an inquiry/indictment that does not follow legal rules; that uses and adopts unreliable evidence; that does not provide for the rights of the accused to be respected? Further, if this inquiry forms the basis for an Impeachment, and the evidence used in said Impeachment is unreliable, why would the Senate do anything more than dismiss the Impeachment referral out of hand?
If the intent of House Democrats is to attack the President, and damage his chances of reelection, then at the very least, some reliable evidence of wrongdoing must form the basis for the accusation. The use of hearsay allegations and calling upon a Defendant to provide evidence of his own innocence has not been seen in an American Court room since the Salem Witch trials of the 1600s. It would be a national disgrace to see such irregularities form the basis for such a serious measure as a Presidential Impeachment 300 hundred years later.
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