# Hearsay (Cosby Trial) **URL:** \ **Category:** Factual Questions\ **Created:** [April 16, 2018, 9:53pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537 "2018-04-16T21:53:19Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 16, 2018, 9:53pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/1 "2018-04-16T21:53:19Z")
[Cosby accuser denies framing Cosby or knowing key witness](http://www.msn.com/en-us/tv/celebrity/cosby-accuser-denies-framing-cosby-or-knowing-key-witness/ar-AAvWHZB?ocid=ientp) > [@](#): > > The defense plans to call Jackson as a witness and says she will testify that before Constand lodged her allegations against Cosby in 2005, Constand had mused to her about setting up a “high-profile person” and filing suit. Jackson has said that she and Constand worked closely together, had been friends and had shared hotel rooms several times. > > A judge blocked Jackson from testifying at last year’s trial, which ended in a hung jury, after Constand took the stand and denied knowing her. At the time, Judge Steven O’Neill ruled Jackson’s testimony would be hearsay. Since then, prosecutors have told Cosby’s lawyers that Constand had modified her statement to acknowledge she “recalls a Margo.” > > The judge has ruled that Jackson can take the stand at the retrial but indicated he could revisit the issue after Constand was finished testifying. I’m not completely sure of why it’s inadmissible hearsay altogether. My best guess is that it’s not a party admission because a witness is not a party, and it’s not a statement against interest because the declarant is available. But that’s just from looking at the Wiki page on the subject. Perhaps someone who actually knows what he’s talking about can comment. But my real question is why is whether or not it’s inadmissible hearsay dependent on whether or not Constand admits to knowing Jackson or not? I couldn’t find anything which indicated that something like this would have a bearing on it. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [April 18, 2018, 2:36am UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/2 "2018-04-18T02:36:05Z")
I’ve had good luck researching issues like this on Cornell’s Legal Information Institute page ([hearsay | Wex | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/wex/hearsay)). Another good resource is [Nolo.com](http://Nolo.com) ([Hearsay Statements in Criminal Court | Nolo](https://www.nolo.com/legal-encyclopedia/hearsay-criminal-cases.html)). Until a legal expert drops in, reading the actual law on the subject (which the cornell site links to) will be your best bet. The Nolo site mentions some interplay between the confrontation clause (defendent’s right to question witnesses providing testimony before the court) and hearsay exceptions, but doesn’t provide any details. You may want to search the Cornell site for info about the “confrontation clause” ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [April 18, 2018, 11:19am UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/3 "2018-04-18T11:19:40Z")
I am making a blind guess, which is a bad idea, but… If two people knew each other and talked about something when they were together, then their reports of what each other did and said at that meeting would be eyewitness testimony. If they never heard of each other and never met, that would no longer be the case. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [April 18, 2018, 1:19pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/4 "2018-04-18T13:19:23Z")
> [@DavidwithanR](#): > > I am making a blind guess, which is a bad idea, but… > > If two people knew each other and talked about something when they were together, then their reports of what each other did and said at that meeting would be eyewitness testimony. If they never heard of each other and never met, that would no longer be the case. The real answer should be ascertainable from the transcripts of the original hearing but I don’t have them. My best guess isn’t that different than yours although “eyewitness testimony” isn’t quite the right legal framework. Generally, hearsay is inadmissible in court. Hearsay is basically any statement made outside of court that is entered into the record for the truth of the matter asserted. Constand’s purported statement that she planned to extort a wealthy dude with a false accusation is hearsay. One exception to the the hearsay exclusion is for “party admissions.” These are statements made by a party to the lawsuit out of court which are entered into evidence for the statement’s truth. In this case, Constand is a party to the lawsuit, so things she said out of court are admissible. She has the opportunity to refute them, so this is considered fair game. In the earlier trial, Constand said she didn’t know the witness. I can guess that the judge concluded that, if Constand didn’t know the witness, the witness must have been reporting what “Someone Else” told her that Constand said. If so, there would be two levels of hearsay: (1) what Constand told Someone Else, and (2) what Someone Else then told the witness. (1) is a party admission and could be admitted into evidence based on the hearsay exception but Someone Else needs to testify about that. (2) is the witness reporting a statement by Someone Else, and she is not a party, so the party admission exception to hearsay doesn’t apply to what Someone Else said. Thus, the witness’s statement about what Someone Else said would be excluded as hearsay. In the new trial, Constand has conceded that she knew the witness. Accordingly, it looks more like the witness will testify about what she heard Constand say directly. That is admissible under the party admission exception to the hearsay exclusion. ---
**Author:** ![Jasmine](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jasmine/32/2964_2.png) [@Jasmine](https://boards.straightdope.com/u/Jasmine)\ **Post date:** [April 18, 2018, 1:25pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/5 "2018-04-18T13:25:11Z")
My simple understanding of “hearsay” is simply that it consists of anything you didn’t see or hear yourself. “I walked into the room and saw Frank shaking Molly, who was sobbing loudly.” (credible testimony) “I heard sobbing coming from the room. When I mentioned it to Sally later, she said that Molly sobs a lot when Frank is abusing her.” (hearsay) ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 18, 2018, 2:04pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/6 "2018-04-18T14:04:35Z")
> [@Tired\_and\_Cranky](#): > > One exception to the the hearsay exclusion is for “party admissions.” These are statements made by a party to the lawsuit out of court which are entered into evidence for the statement’s truth. In this case, Constand is a party to the lawsuit, so things she said out of court are admissible. She has the opportunity to refute them, so this is considered fair game. I wouldn’t think Constand is a party here. This is a criminal case. > [@](#): > > In the earlier trial, Constand said she didn’t know the witness. I can guess that the judge concluded that, if Constand didn’t know the witness, the witness must have been reporting what “Someone Else” told her that Constand said. The witness is testifying the exact opposite - that Constand herself told her this. If you start to believe Constand over the witness before she even gets to the stand then you might as well have the witness not testify regardless of the hearsay issue, because Constand is also contradicting the substance of the witness’ testimony. The notion that the judge decided to believe Constand over the witness just for the narrow purpose of declaring her testimony to be hearsay doesn’t seem to make sense. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [April 18, 2018, 2:19pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/7 "2018-04-18T14:19:26Z")
> [@Fotheringay-Phipps](#): > > I wouldn’t think Constand is a party here. This is a criminal case. You are right. I was thinking this was a civil case. Constand is not a party and the party admission exception is inapplicable. I’m sorry. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [April 18, 2018, 11:22pm UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/8 "2018-04-18T23:22:17Z")
> [@Tired\_and\_Cranky](#): > > You are right. I was thinking this was a civil case. Constand is not a party and the party admission exception is inapplicable. I’m sorry. Isn’t Jackson’s testimony being offered to impeach Constand? I believe that is another exception to the hearsay rule. I think it is permissible to impeach a witness even if they are not a party. Essentially Jackson is going to testify that Constand told her about her plans to lie on the witness stand. Earlier, the judge had ruled that Jackson never met Constand and thus could not have heard direclty from Constand what Constand was alleged to have said. Now Constand has admitted she might have met Jackson. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 19, 2018, 12:34am UTC](https://boards.straightdope.com/t/hearsay-cosby-trial/812537/9 "2018-04-19T00:34:55Z")
> [@Jasmine](#): > > My simple understanding of “hearsay” is simply that it consists of anything you didn’t see or hear yourself. > > “I walked into the room and saw Frank shaking Molly, who was sobbing loudly.” (credible testimony) > > “I heard sobbing coming from the room. When I mentioned it to Sally later, she said that Molly sobs a lot when Frank is abusing her.” (hearsay) It depends. It’s hearsay if the purpose of the testimony was to establish that Molly cries when Frank is abusing her. But if it’s offered to explain why the witness bought gun – he planned to give it to Molly so she could protect herself from Frank, for example – then it’s not hearsay. It’s hearsay if it is testimony about an out of court statement, and it’s offered into evidence to prove that the matter asserted in the statement is truth, as **Tired and Cranky** correctly explains above.