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Hearsay

The Sixth Amendment to the United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Why It Matters

The entirety of U.S. rules, laws, and case law on the admissibility of hearsay is voluminous and complicated. But it stems from the so-called “confrontation clause” of the Sixth Amendment. Fairly simply, a defendant cannot confront a witness who is not present but is rather being quoted by someone else. And that is in the best case scenario. Generally, however, hearsay evidence is inadmissible unless a specific exception to the hearsay rule exists.

It’s complicated enough when Jane says, “Bill told me that he committed the crime.” Now consider Jane saying the following, “Mary told me that Bill told her that he committed the crime.” This is double hearsay. Just from the perspective of common sense, how confident would you be of Bill’s guilt solely based solely upon that statement?

But Wait … There’s More

Now let’s add a heavy dose of anonymity to this scenario. “An anonymous witness said that an unnamed person heard that a violation occurred.”

To this roux of anonymous double (or triple) hearsay, add to the fact that original anonymous witnesses were in no way under oath, and absolutely no consequences existed for providing untrue statements (either knowingly or unknowingly).

Does this sound fishy yet? Wholly un-American, perhaps? Well, the recipe remains unfinished. Following these interviews, multiple anonymous witnesses voluntarily reported that they were asked leading questions and felt encouraged to embellish their stories.

As the final topping, add the fact that these interviews stretched across weeks and months, and no transcript or recordings were made. There is no formal record of any of these anonymous interviews. Instead, an attorney serving as de facto prosecutor took only selective notes in a legal pad.

But Wait? Isn’t All of That Hearsay?

Good question, but no.

Unlike Florida, both Texas and federal law permit the tape recording of private conversations as long as one of the parties is aware that the conversation is being recorded. So I possess a recording of those points being admitted. As to the leading questions and embellishments, some of these “anonymous” individuals are willing to provide sworn testimony via affidavit, deposition, or courtroom testimony.

I’m neither judge nor jury, but I find that pretty compelling.

Yet the Media Ran with It

All of these salacious accusations made it into a now infamous 87-page “report” titled “Confidential Memorandum” and dated January 25, 2013. To be fair, at least 16 of the pages are cover pages, and 22 pages are copies of university policies. I can’t post the entire thing here because the file is 1 GB.

The rest contained the anonymous hearsay allegations that range from the absurd to the occasionally accurate. From a single source. Never verified. No cross-examination. And no confrontation.

And Then There’s This

Not one official document or complaint was ever filed in my career that would corroborate any of the report. Thus, nothing one would ordinarily consider evidence supports all of the verbiage that almost no one would consider evidence.