Why so much hearsay testimony in the January 6 Committee hearings?

Question

During the public hearings of the January 6 Select Committee, we've heard quite a bit of hearsay testimony from witnesses. For instance, in the June 16 hearing, Mike Pence's Chief of Staff Greg Jacobs testified about Pence's statements to Trump that he wouldn't try to subvert the election, and about a number of statements by Trump attorney John Eastman.

I know this isn't a trial, so the normal rules against hearsay evidence don't apply, but wouldn't it be better to get these statements from the horses' mouths? Have the "horses" refused to appear before the committee? While I know there are lots of Trump loyalists who have been defying subpoenas, Pence seems to be proud of his action surrounding the cerification of the election results, so I think he would be willing to testify as to what he was thinking at the time.

Are there good political reasons to investigate like this? Or does it make better TV? (I know that keeping it interesting to the public has been an important consideration of the public hearings — they hired a TV producer to oversee them.)

Answer 1

A simple way to understand this issue:

• We can legitimately testify about anything we witnesses. This includes statements other people make, so long as we see/hear them say such directly.
• We cannot (in general) testify about what other people witness. If we don't see it ourselves, but only hear it from others, that's hearsay (literally, we 'hear' then 'say').

For example, if a friend tells us she saw a UFO, we witnessed her saying that, and we can legitimately say in court that she said that. But we did not witness her witnessing the UFO, so we cannot testify that she actually did. Only she can testify to that.

The 1/6 Panel hasn't (so far as I've noticed) strayed into hearsay. They have accumulated a large laundry list of things that people in and around the previous administration did and said, based on eyewitness testimony of those things being done and said. They are building a fairly damning case based on natural deductions from these statements: e.g., multiple claims from people who witnessed Trump being told there was no credible evidence of election fraud strongly suggests Trump was aware of the facts, so that he is shown to have explicitly and repeatedly lied to the American people. Note the peculiarity that this is not evidence that there was no fraud — that would be hearsay — but it is legitimate evidence that Trump was thoroughly told there was no fraud by his own experts, appointees, and staffers.

Answer 2

Hearsay is testimony regarding a statement about a fact, presented to establish that fact. That is, there is some alleged fact, and Person A claims that Person B made a statement about the fact, and the testimony is presented to establish that fact. If Person A testifies about Person B's statement, for the purpose of testifying about the statement itself, rather than the thing that Person B's statement was about, that's not hearsay.

For instance, if I testify that the defendant came into the bank I was working at and said "I have a gun, give me all your money or I'll shoot you", my testimony is not hearsay if the intent of the testimony is to establish that the defendant threatened me. If the intent is to establish that the defendant had a gun, then it would (putting aside the Statement Against Interest exception) be hearsay. I can testify that the defendant threatened me, because I directly witnessed that. I can't testify that the defendant had a gun, if my only basis for believing that was the defendant's statement, because I didn't directly witness that. I can give statements about anything I witnessed, even if those things are themselves statements by other people, it's just that the prosecution can't use those statements by other people as evidence for the things the statements are about, rather than just the statement itself.

So let's look at the examples of "hearsay" that you give:

a number of statements by Trump attorney John Eastman.

Too vague to say whether that's hearsay.

Pence's statements to Trump that he wouldn't try to subvert the election

The only way this would be hearsay is if it was presented to establish the claim that Pence would not try to subvert the election. If it was presented merely to establish that Pence claimed that he wouldn't try to subvert the election, then it is not hearsay. Knowing whether Pence said this is useful both for evaluating Pence's actions, and for evaluating the actions of other people who heard him say this. Any time you're dealing with a conspiracy, who said what to whom is going to be an important issue; that someone made a statement is an important fact, apart from the claims mad in the statement, and so it will be valid for people to testify to the fact that the statement was made.

As for why this would be preferred to direct testimony, which is more compelling: someone claiming that they said they wouldn't do crime, or someone else saying that that person said they wouldn't do crime?