A Quick Primer on the Hearsay Rule for the WSJ Law Blog

The Wall Street Journal Law Blog has a post on the Mitchell Report, and I thought I would do a public service by explaining the hearsay rule in response to this observation: “Well now, the names of 89 baseballers are forever besmirched, courtesy of an extra-judicial investigation which relied on hearsay evidence (e.g., unsworn testimony of clubhouse staffers).” This echoes the objection raised by Rusty Hardin, Roger Clemens’ lawyer, to the effect that the Mitchell Report “threw a skunk in the jury box.”

Federal Rule of Evidence 801(c) defines “hearsay” as follows: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Let’s put aside for the time being the “trial or hearing” phrase, because the fair question, looking particularly at the allegations regarding Clemens, is whether anything offered up by Brian McNamee (a strength and conditioning coach) was hearsay in the context of giving evidence to Mitchell.

– McNamee’s statement that he personally injected Clemens is not hearsay. The declarant is McNamee. He is describing an act, not a statement.

– McNamee stated that Clemens asked McNamee to inject him. Now Clemens is the declarant. But the statement is not be offered for the truth of an assertion. It is being offered for the fact of the request itself, which would seem to be relevant to the question whether Clemens knowingly used a steroid.

– At some point, according to the report, Clemens told McNamee that the steroids “had a pretty good effect on him.” Again Clemens is the declarant. The statement is not being offered for the truth of the assertion that the steroids did or did not have a good effect. The statement is being offered for the fact of the statement, which is relevant to whether Clemens used the steroids. [UPDATE: Views offered by several commenters below, including Howard Wasserman and Michael Risch, persuade me that this could be hearsay. After reflecting on this for a day or so, I’d agree that Clemens’ alleged statement is asking the listener to add the implicit presupposition that he used the steroids. If you take the implicit requested presupposition as an implicit assertion, it is offered for the truth. But how does it differ from the following? The issue is whether a person was high on recreational drugs. The witness testifies that the declarant stumbled out of a room, and said “oh, wow, that was good shit.” Put aside whether an exception (like excited utterance or present sense impression) applies. That just doesn’t feel to me like a statement offered for the truth of the matter asserted.]

– Jose Canseco told Mitchell that he had conversations with Clemens about the benefits of Deca-Durabolin and Winstrol, including how to cycle and stack the steroids. In itself, this has marginal probative value, if any, as to the actual use of steroids. It is corroborative of McNamee’s testimony, however. But it is not hearsay.

The funny thing about this is that the WSJ Law Blog introduces the complaint by suggesting that a few non-lawyers said they agreed with Hardin’s objection. My experience is that lay people rely on repeated statements of a non-present declarant all the time, often consider it quite reliable, and are confused (as are many lawyers) about why it’s excluded only when it relates to the truth of the matter being asserted. Assuming that McNamee were to testify at a trial in which Clemens’ use of steroids were at issue, Hardin could cross-examine McNamee on the accuracy of McNamee’s own perception of the events or statements, but he wouldn’t be able to keep them out as hearsay.

You may also like...

12 Responses

  1. Ross says:

    “McNamee stated that Clemens asked McNamee to inject him. Now Clemens is the declarant. But the statement is not being offered for the truth of an assertion. It is being offered for the fact of the request itself, which would seem to be relevant to the question whether Clemens knowingly used a steroid.”

    This is true, but I would suggest a further point of clarification about this often misunderstood situation. Not only was the statement not being offered to prove the truth an assertion, commands “Inject me with steroids” and questions “Would you mind injecting me with steroids” have no truthful content. Therefore, such statements are never hearsay.

  2. Prof McElhaney says:

    Additionally, admissions by a party-opponent are not hearsay. Rule 801(d)(2). In this context, you have to assume that Clemens is a party to the theoretical “trial or hearing.” If that’s the case, your second and third bullet points are excluded from the definition of hearsay.

  3. Howard Wasserman says:

    Jeff: Thank you for writing this. I was screaming at ESPN last night everytime Peter Gammons and John Kruk (?) threw the word “hearsay” around without having the first clue what it means. Oh, watch for improper use of the phrase “circumstantial evidence.” If McNamee testifies that he injected Clemens with steroids, that is *direct* evidence that Clemens used steroids.

  4. Colin Miller says:

    Even if Clemens were not a party and even if these statements were offered for their truth, assuming that there was a case in state court in Clemens’ home state of Texas, his statements would be admissible under Texas Rule of Evidence 803(24) as statements against interest. Furthermore, unlike its federal counterpart, Texas’ version does not require the declarant to be unavailable, and the statement merely needs to be one that would “make the declarant an object of hatred, ridicule, or disgrace.”

    http://www.courts.state.tx.us/rules/tre/tre-all-010107.htm#RULE803

  5. dave says:

    One of my students (whose comment here for some technical reason can’t be posted) writes: “You wrote: “McNamee’s statement that he personally injected Clemens is not hearsay. The declarant is McNamee. He is describing an act, not a statement.” Since when is describing an act not a statement? McNamee is making an oral assertion (801(a)) to Mitchell’s team that he injected Clemens. “McNamee stated that Clemens asked …”

    “Clemens told McNamee that …” “Jose Canseco told Mitchell that …” All these are double-hearsay. While Clemens’ and Canseco’s statements may not be hearsay for the reasons you stated, that doesn’t address McNamee’s statements to Mitchell’s team. Each link of hearsay within hearsay needs to be addressed under 805, and McNamee’s statements to

    Mitchell are the problematic ones (see above).”

    I don’t vouch for these statements, but I thought they deserved airing!

  6. Jeff Lipshaw says:

    Dave, I think your student would be correct if I looked at Mitchell as another witness. But I don’t. He is the fact-finder. He is the one assessing McNamee’s credibility and deciding that McNamee’s statements about the circumstances should be believed. So the evidentiary logic ends at Mitchell.

    The appropriate way to assess Mitchell’s report is the way we would assess the judge’s opinion. It’s no longer an assessment of the probativeness and reliability of evidence, but his treatment of it.

    Having said all of this, my greatest fear is that one of my deans sees this and somehow I get roped into teaching evidence. But I’m sure Jack Friedenthal is smiling somewhere.

  7. Don’t forget admission against interest – whether a “party” or not, such a statement would be admissible. Of course, if steroids were not outlawed at the time, it is difficult to say that the statement was “against interest”, though perhaps a “public opinion” argument could be made.

    Also, I think this statement is a bit of a stretch: “At some point, according to the report, Clemens told McNamee that the steroids “had a pretty good effect on him.” Again Clemens is the declarant. The statement is not being offered for the truth of the assertion that the steroids did or did not have a good effect. The statement is being offered for the fact of the statement, which is relevant to whether Clemens used the steroids.”

    I don’t know how a court comes out on it, but if the statement is “The steroids worked [and implicitly this means that I used the steroids]” then the statement would likely be viewed as having been offered for the truth of the matter.

  8. Howard Wasserman says:

    If Clemens is not a “party,” the statement against interest exception works only if he is “unavailable” (except apparently, in Texas).

    The statement “The steroids worked” implicitly contains two assertions: a) “I took steroids” and b)”They had a good effect.” Both are offered for the truth of the matter and not just that the statement was made.

  9. Could the statement that “the steroids had a good effect” be considered either a statement then-existing physical condition or a statement made for purposes of medical treatment? If steroids have a long-term effect, then the statement that they “had” a good effect would describe the declarant’s current condition. And if he made that statement to the person who injected him, it may have been as part of a discussion about whether to continue.

  10. Jeff Lipshaw says:

    I’m persuaded that the “steroids had a good effect” question is closer than when I put the post up. I suspect the issue rarely comes up in the pure form – whether the statement is hearsay in the first instance – because it is much easier to deal with it either as a party admission or under one of the exceptions. My intuition keeps telling me that something about the statement is probative, and testable merely by cross-examination of McNamee. But it’s going to be a rare case that the declarant’s conduct is at issue, but he’s not the defendant!

  11. “If Clemens is not a ‘party,’ the statement against interest exception works only if he is ‘unavailable'”

    True enough – I was viewing Mitchell as the factfinder, and if they did not or could not interview Clemens, then I was considering him “unavailable.”

    “I suspect the issue rarely comes up in the pure form”

    It actually comes up quite a bit in email chains where one or more of the people in the chain is unavailable. The question is how much of the embedded email to take as “truth” and how much to try to get in under exception, context, tacit or explicit acknoweldgement by a party, etc.

  12. Howard Wasserman says:

    I don’t think it could be medical diagnosis, but I think Jennifer’s argument for existing state of mind might work–he is describing his current feeling based on past treatment. I guess it is comparable to someone who just has surgery saying “The surgery was a success”–he is telling us how he presently feels.