The left seems to believe that a rule permitting hearsay evidence in a terrorist war crime trial is no less perverse than the Spanish Inquisition. On the other hand, the right seems to believe that unless Bush's military commission legislation is passed, with express language permitting hearsay, the world will fall apart. The truth, as I explain below, is neither. When I first decided to write this diary I thought I would write a diary critical of the hysteria on the left on this precise issue, but as I looked into the matter in some depth I decided that while I am still critical of the hysteria on the left, I think the right has simply lost their mind (and Bush needs better lawyers).
Read on
Hearsay is an out of court statement offered for the truth of the matter. As a general proposition, hearsay evidence is inadmissible.
Contrary to lay belief, however, in every jurisdiction and in every context, hearsay can be admissible, including war crimes trials:
The Federal Rules of Evidence contain 33 (yes, some thirty-three) exceptions to the hearsay rule, and provide a catch-all exception:
Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, 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.
But wait, what about the 6th amendment's confrontation clause, which provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."?
Until 2004, SCOTUS permitted hearsay again a criminal defendant when the declarant was unavailable as long as the hearsay had a sufficient "indicia of reliability." See Ohio v. Roberts. But that rascal Scalia will surprise now and again, and in Crawford v. Washington, the court held that there was no indicia of reliability other than confrontation where the hearsay was "testimonial" in nature. Clearly barring all "testimonial" hearsay in a criminal context is more restrictive than the rules would suggest, but a definition of "testimonial" is problematical, and hearsay continues to be admitted. Note that in Hamdan the court pointedly used the words "testimonial hearsay" at page 51, and I suspect we shall see those words again in a later military commission SCOTUS review.
What about the military? The Manual of Courts-Martial sets forth the rules of evidence for its proceedings, They mirror the Federal Rules of Evidence in many respects, and essentially provide the same hearsay exceptions. Its catch-all exception, at Rule 807, is a little broader and easier perhaps (requires the evidence be at least as reliable in theory as the stated exceptions, be more probative on the point than other evidence that can be obtain through reasonable efforts, and is in the overall interests of justice). And while I am not a former JAG attorney, my recollection is that members of the military do not enjoy - as a matter of Constitutional right -- the same protections afforded citizen civilians in UCMJ proceedings so I don't think the Confrontation Clause has the same impact here if at all (notwithstanding Steven's use of the "testimonial in nature" language phrase of art in Hamdan). And frankly, SCOTUS had previously approved lax hearsay rules in military commissions, and the CRS (no John Yoo there) has a good discussion on that case and the President's authority to prescribe the Rules of Evidence in such proceedings.
Note however that Hamdan was critical of that earlier decision.
Clearly hearsay is ok under the present rules (as long as an exception is met). So, I thought I'd take a look and see how it was handled in War Crimes trials. No better place to start that the Nuremburg and Toykyo war crimes trials right? After all, Jackson, later an admired SCOTUS judge (and famous author in the Youngstown opinion), was the Chief Prosecutor. (I'd always thought they were a model of fairness, didn't you?) Consider (emphasis added):
The powers and procedure to be followed by the American Nuremberg Tribunals were laid down in United States Military Government Ordinance Number Seven. This ordinance specifically states that American rules of evidence are not to be applied by the judges. Hearsay and double hearsay evidence is permitted, and it is left entirely to the discretion of the judges whether or not the defense be permitted to question the authenticity or probative value of evidence. It is worth reproducing Paragraph VII of Ordinance No. 7, since it is one of the bitterest complains of the German defense lawyers that all known rules of evidence were jettisoned by the Nuremberg Tribunals:
The Tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following shall be deemed admissible if they appear to the tribunal to contain information of probative value relating to the charges: affidavits, depositions, interrogations, and other statements, diaries, letters, records, findings, statements and judgments of the military tribunals and the reviewing and confirming authorities of any of the United Nations, and copies of any document or other secondary evidence of the contents of any document, if the original is not readily available or cannot be produced without delay. The tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the tribunal the ends of justice require.
Hmmm. How about present war crimes trials?
1. (vii) As far as hearsay evidence is concerned, the Trial Chamber reiterates the position of the Appeals Chamber in Aleksovski that "it is well settled in the practice of the Tribunal that hearsay evidence is admissible.12 Thus, relevant out of court statements, which a Trial Chamber considers probative, are admissible under Rule 89(C)".13 As stated by the Appeals Chamber in Aleksovski, Trial Chambers have a broad discretion under Rule 89 (C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose; or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.
So, the first conclusion is that the left's general criticism of the use of hearsay is just misplaced and wrong (and if you'll think about it you'll see why some hearsay has to be admitted in cases like these). But my second question is just plain confounding. Why in the world does Bush think he needs an express rule permitting hearsay in the proposed Military Commissions Act of 2006 when, as I have demonstrated, he would have it anyway. I think that is the real question and frankly I do not have the answer. Perhaps his peeps think the hearsay they will have will not meet the exceptions. Perhaps the real concern is that the hearsay is coming from other detainees from whom the evidence was coerced and so they don't want to produce them as witnesses although they are otherwise available (that is really a different issue though). Perhaps he is looking for a contrived fight in an election year. Or, perhaps he had a stupid lawyer write the draft legislation. It must be that language in Hamdan at page 51 really has them concerned. There is a pretty decent overview by a (left?)law school professor here.
Guesses anyone?