No, The Whistleblower Complaint Is Not Hearsay
Amid the fracas of the declassification of the whistleblower’s complaint and the House’s impeachment inquiry, one line of defense from the President’s allies has been that the complaint is “hearsay”:
That certainly sounds scandalous. Anyone who’s seen Law & Order knows that hearsay is inadmissible and unreliable. Impeaching a President with evidence that couldn’t be used in a parking ticket case? Horrifying!
In fact, nothing improper is going on here. The rules of evidence, including the hearsay rule, don’t apply in impeachment proceedings because the procedural context is entirely different in trials before the Senate. Even if this were a criminal case to which the rules did apply, the hearsay rule doesn’t apply to an informant’s communication with law enforcement about possible criminal activity. In fact, informants and even formal criminal complaints routinely include secondhand information because they are not “evidence” within the meaning of the hearsay rule.
What Is The Hearsay Rule?
The hearsay rule is a rule of evidence that prohibits the use of secondhand statements as evidence at trial. The common law system has a strong preference for live testimony by witnesses with firsthand knowledge of the events about which they testify, and generally forbids witnesses from repeating something they heard from someone else as evidence that the secondhand statement is true. As every law student knows, there are a lot of exceptions to that general rule, but we don’t need to worry about those.
How does this work? Say Pablo is suing Deepa for running a red light and hitting his car; Deepa says the light was green and that Pablo ran the red light. Mary witnessed the accident, and she told Walter that the light was red when Deepa ran it. The hearsay rule would prevent Walter from testifying about Mary’s statement at trial in order to show that Deepa ran the red light. Only Mary could testify about what she saw. Why? Partly because we want the jury to be able to watch Mary testify in order to evaluate her credibility. But also because allowing Pablo to rely on Walter’s secondhand statement would prevent Deepa from conducting an effective cross-examination. How good is Mary’s memory? How good is her eyesight? Is she colorblind? Did she have a clear view of the intersection? Did she have any reason to fabricate or exaggerate her statement to Walter — was she trying to impress Walter, perhaps, or was she angry at Deepa for cutting her off in traffic? Walter wouldn’t be able to testify about any of these things weighing on the reliability of Mary’s statement. So the hearsay rule would require Pablo to produce Mary to testify about what she saw.
The Rules Of Evidence Only Apply In Courts
The hearsay rule doesn’t apply in an impeachment trial. The rules of evidence govern the admission of evidence in courts. Every state has its own rules of evidence; in the federal system, admissibility is governed by the Federal Rules of Evidence, which state in their very first provision that they apply only to “proceedings in United States courts.” Impeachment trials are heard in the United States Senate, which, as Giuliani and Graham are well aware, is not a United States court.
The Senate has not adopted any rules of evidence to govern impeachment trials. Chief Justice Roberts, acting as Presiding Officer of the trial, could decide all issues concerning the admissibility of evidence. Would the Chief Justice choose to enforce the Federal Rules of Evidence in an impeachment trial? Probably not, because it would make no sense to apply them there. The main purpose of the rules of evidence is to prevent the jury from being exposed to information that could taint its verdict. In an impeachment trial before the Senate, the “jury” is already well aware of the facts surrounding the case, and there’s little reason to think that formally excluding information would prevent the senators from considering it. Excluding evidence that everyone already knows about would be an exercise in futility.
The Whistleblower Complaint Is Not Evidence
Even if the rules of evidence did apply to a Senate impeachment trial, the fact that the whistleblower complaint incorporates secondhand information does not violate the hearsay rule because the whistleblower complaint is not evidence. “Evidence” means something specific in the law — it means information introduced by a party to be formally considered by the judge or jury in determining legally relevant facts, either at trial or in deciding a motion. Depending on the nature of the case, admissible evidence can include live testimony, documents, recordings, objects, or almost anything else that makes a legally relevant fact more or less probable. But much of the material relating to a lawsuit is not evidence. For example, many lawsuits involve a lot of pretrial motion practice — motions to dismiss the complaint, for summary judgment, to exclude evidence at trial, and so on. The parties’ legal arguments about the motions are not evidence; they’re never shown to the jury and they aren’t considered in rendering a verdict. Lawyers’ oral arguments are not evidence. Even material obtained in pretrial discovery is not automatically evidence; it only becomes evidence when admitted into evidence at trial or in some pretrial proceedings.
To understand why the whistleblower complaint is not evidence, we have to avoid a potentially confusing issue of terminology. “Complaint,” in the legal context, usually refers to a pleading — a formal statement by a plaintiff or prosecutor that a defendant violated the law. Criminal complaints often rely on secondhand information. The investigating officer (usually a police officer or prosecutor) takes statements from witnesses, reviews other sources of information (documents, security camera footage, etc.), and writes a complaint charging the defendant with a crime. The investigating officer must have probable cause to believe that the defendant actually committed the crime charged, but that belief is often based, in whole or in part, on secondhand information. The hearsay rule poses no obstacle to this, because the criminal complaint is never shown to the jury as evidence of its own assertions. It’s simply a set of accusations that the prosecutor must back up with evidence at trial.
The whistleblower complaint is not a pleading. It was not filed with a court and did not commence a legal proceeding. The whistleblower acted pursuant to the Intelligence Community Whistleblower Protection Act, which authorizes the Inspector General of the Intelligence Community to “receive and investigate… complaints or information from any person concerning the existence of an activity within the authorities and responsibilities of the Director of National Intelligence constituting a violation of laws.” Although it’s called a complaint, the whistleblower complaint is more like a tip to the police — a notification that wrongdoing has occurred. The hearsay rule, which applies only to evidence presented in court, says nothing about communications between citizens and law enforcement, and certainly doesn’t forbid an informant from repeating secondhand information regarding a crime to law enforcement. It’s then up to law enforcement to determine whether the informant’s tip is credible — which the Inspector General did in this case.
If one were to read Giuliani and Graham’s comments especially charitably, one could just barely interpret them as expressing concern that the whistleblower complaint could eventually be used in Trump’s impeachment trial to prove the truth of its own assertions, and arguing that that use of the document would constitute hearsay. I don’t think that’s a plausible reading of their tweets; they seem more concerned with delegitimizing the credibility of the whistleblower’s accusations and the impeachment inquiry than with debating a point of procedure about a trial that isn’t yet happening and may never happen. But to give them the benefit of every doubt, use of the whistleblower complaint as substantive proof of its own assertions at trial would indeed constitute hearsay, although it would be admissible because, as explained above, the Federal Rules of Evidence don’t apply in trials before the Senate. But why should we expect the whistleblower complaint ever to be used in that way? We already have the transcript of President Trump’s call with President Zelensky, and the House has launched a formal inquiry. If President Trump is ultimately impeached, the information revealed by that inquiry, rather than the whistleblower’s anonymous tip, will surely be the principal evidence introduced at the impeachment trial.
Guiliani and Graham — both former prosecutors — know that there is nothing inappropriate about passing along credible secondhand information to law enforcement officials and that the hearsay rule doesn’t apply to this situation because the whistleblower complaint is not evidence. No second-year law student would make these errors; it is inconceivable that two former prosecutors, one a United States Senator, are genuinely confused about these points.
