I think the point is, people are reporting that Trump said something at an event, and they heard him say it. It isn’t a thing Trump directly published.
But wouldn’t there actually be a recording of him saying it? If not a professional filming the event, then several dozen Trumpists recording it on their mobile phones.
Also, I’m reading it as not being directly related to the criminal charge against him. It’s if he claims he needs a delay because he can’t find a lawyer, then Smith can show him stating that he voluntarily turned down many offers. Would hearsay even be relevant to that?
Hearsay is an out of court statement, not under oath, and not subject to cross-examination.
If Trump says, out of court, “I did X on May 1, 2022,” that is hearsay. He’s not saying it in court.
If Trump does not testify in court (and in a criminal trial he can’t be compelled to do so), then if the prosecution wants to put that statement in evidence, they would have to call someone else who heard it said. That’s what makes it hearsay.
There may be an exception to the hearsay. If “X” is something against Trump’s interest, in relation to the matter on which he’s being tried, then they may be able to get his statement that he did “X” into evidence, as a statement against interest.
Situation changes if Trump agrees to testify. Then, the prosecution likely would be able to put the statement to him. Even then, in some jurisdictions, his statement that he did “X” may only go to his credibility, not as direct evidence that he did “X”. I don’t know how the federal rules of evidence deal with that.
Even if it’s recorded? To introduce a video in which Trump says (hypothetically) “yes I kept every one of those top secret documents and I told the feds to go fuck themselves,” you need the testimony of, say, the cameraman who swears that Trump was sitting in front of his camera when the statement was recorded?
It doesn’t matter if it’s a recording or someone’s recollection. It’s an out of court statement, not under oath, and not subject to cross-examination. A recording may be more accurate than someone’s recollection, but it’s still hearsay. To get it into evidence, you would need to call someone who can testify that they were present in the room and made the recording, and that in their opinion it’s an accurate recording of what he said. That’s hearsay.
It’s ancillary to the criminal proceedings. If a point is in dispute leading up to the trial, rules of evidence may still apply to the point in dispute. Again, I have to say I’m not at all familiar with federal rules of evidence, so don’t know how that issue would be handled.
This boggles my mind. I’m not doubting you, it’s just not something I’ll ever be able to wrap my mind around in a way that makes sense to me.
For example, why do mobsters worry about what they say if everything outside of court is hearsay? Why not just come out and directly order the kill? Even if the feds tap the line, it’s still outside of court and not under oath, right?
Because hearsay is not an absolute bar to evidence being admitted. If a person says something against their interest, that can be admitted. If low-level mobster turns on the godfather, and is prepared to swear in court that he heard the godfather order the hit on someone, that would likely be admissible. Same for confessions to the police.
Again, I’m talking about the classic common law rule and exception. I don’t know if the federal rules of evidence have provided a different approach.
But by that logic, Trump publicly stating that he has refused representation would also be admissible hearsay by virtue of being against his interest, wouldn’t it?
I get the utility of this rule in the age of deepfakes, having a witness to go on the record confirming that the recording is genuine and not fabricated. But at the same time we’ve known for decades that human memory is terribly faulty and eyewitness testimony rarely aligns to the pure objectivity of a mechanical recording, so the fact that we need an imperfect person to confirm that the machine-captured video and audio is “accurate” absolutely blows my mind. Digging further into this would probably take the thread off topic, though, so I’ll just boggle and leave it there.
Guys, I’ll make it easy for you. The Federal (and most states) rules of evidence say it’s not hearsay. You don’t even need an exception. A statement by a party-opponent is not hearsay. (even though it is an out of court statement used to prove the truth of the matter asserted. Some academics suggest it makes more sense as a hearsay exception, but so far it’s just defined as “not hearsay.” ).
801(d)(2)(A)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
So, if I understand correctly, if Trumps attorneys argued that they need a continuance so they can bring more attorneys on board, the prosecution could introduce Trump’s public statement that he didn’t need more attorneys and is turning them away?
I imagine you can also take an audio or video clip out of context to make it seem like a person is saying something they aren’t. I don’t know how the rules of evidence handle that.
It should be trivial to present an unedited audio or video clip to A) Give the excerpt context; and B) To simply refute that was was said, was said as presented.
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.