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In this video, Democratic Rep. Mike Quigley can be heard saying "hearsay can be much better evidence than direct", in reference to the Democrats' impeachment inquiry of President Donald Trump. The transcript can be found on CSPAN’s website:

And if -- I guess to close, primer on hearsay, I think the american public needs to be reminded that countless people have been convicted on hearsay. Because the courts have routinely allowed and created needed exceptions to hearsay. Hearsay can be much better evidence than direct as we have learned in painful instances and it certainly is valid in this instance

This goes against the logic I'm used to. In what cases of an official investigation could hearsay actually be much better than direct? Especially since hearsay is as trustworthy as a he-said, she-said affair.

It seems to be grasping at straws so I am looking for some rationale behind what this means.

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    Comments deleted. Please don't use comments to answer the question. If you would like to answer, please post a real answer. – Philipp Nov 20 at 9:23
  • I think you should post this to law.stackexchange.com . – Michael Hardy Nov 21 at 19:16
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    You get my downvote for accepting the wrong answer. – DJClayworth Nov 21 at 19:28
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    @DJClaywoth I'll refer you here to read about how question voting is supposed to work. It's worth a read. meta.stackexchange.com/questions/200019/… – apgov Nov 21 at 22:16
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    @apgov Please don't try to lecture me on how the site works. Instead please read your own question, and the answers, and try to think about why the accepted answer doesn't address it. – DJClayworth Nov 22 at 14:26
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Hearsay is not better than direct evidence. Hearsay is better than no evidence, which is why it is conditionally allowed. The value in hearsay is that it is easier to collect than real direct evidence, and may prove the existence of real evidence. The problem with hearsay is the multiple levels where misinterpretation can occur and things can be taken out of context, which makes it ideal for fabrication. From a legal perspective, hearsay is often evidence of last resort, but from a political lens, it's the ideal evidence. Hearsay is great for creating and controlling a narrative.

As for why a Democratic Rep would make that claim, it's because for their purposes hearsay is more useful than direct evidence. The Democrats are tightly controlling their narrative for the impeachment hearings. By playing up hearsay as valid or even better than direct evidence they can have more favorable "witnesses" to sway public opinion as much as possible. Democrats need strong public approval for impeachment and removal to successfully achieve it because the Senate is against it. Furthermore, by playing up the quality of hearsay they can attack a failed removal by accusing the Senate of ignoring all their great evidence, so they can still have compelling talking points should impeachment fail to remove Trump. The direct evidence in the case of the Ukraine call exists, but the Democrats don't know it's content, this is dangerous to them, because it may dismantle their entire case or vindicate them, which is far too big of a risk to take if they can avoid it.

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    "it's because for their purposes hearsay is more useful than direct evidence." — I think this is a generally solid answer but this (and subsequent comments) seem to imply that direct evidence would be exculpatory rather than damning. – Steven Stadnicki Nov 21 at 17:03
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    You claim that the Democrats are avoiding asking for direct evidence. How is this consistent with the fact that they have, in fact, asked for a bunch of direct evidence, namely, all of the subpoenas of direct witnesses and requests for documents they have filed in the past 6 weeks, up to and including inviting the president himself to testify in their hearings? – probably_someone Nov 21 at 17:11
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    This answer gives a correct assessment of why hearsay is worse evidence than direct all else being equal. But that isn't the claim. The claim is that hearsay can be better evidence than direct, not that it always is. And there are circumstances under which that is true. – DJClayworth Nov 21 at 19:27
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    Yeah, you're ignoring all the subpoenas for direct evidence (so I guess you're following the example set by the executive branch). – Caleb Mauer Nov 22 at 14:10
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    @Ryathal Yes, that is exactly my point. Mostly direct evidence is better, and a recording would be best of all. But since there isn't a recording, hearsay from an impartial source is better evidence than an accused person with a proven record of lying saying "I didn't say that". – DJClayworth Nov 22 at 14:25
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By being more readily available, by being more complete, and by being more credible.

I'm not saying that hearsay is all of the above. I'm saying when hearsay is any of the above it can be better evidence.


Example time. Let's assume the declarant informed a third party immediately after the event (803.1).

Example 1, Availability: The third party is around while the declarant is out of country and not willing to cooperate.

Example 2, Completeness: The third party made excessive notes, the declarant made none, and the incident happened a few years ago.

Example 3, Credibility: The declarant has since gained a motivation that would call their credibility in question, that they didn't have back when they were talking to the third party (i.e. threats, rewards, grudges, mental condition).

  • All of your examples show how heresay is better than no evidence. If the declarant is around, it's better to hear it from them. If the declarant made notes, it's better to use them. If the declarant is no longer credible, it's better to reveal that in cross examination than to simply declare it as fact. – bvoyelr Nov 21 at 15:08
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    @bvoyelr If the declarant is readily available, credible, made lots of notes, and willing to bear witness, that's not the example I made. And if the declarant is no longer credible, cross examination doesn't suddenly make their statements better evidence than that of a credible hearsay witness. – Peter - Unban Robert Harvey Nov 21 at 16:21
  • That was my point -- your examples compared heresay to no evidence. If the direct evidence is available (such as the declarant having notes, being available), it's better. – bvoyelr Nov 21 at 16:23
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    @bvoyelr I agree that if (and only if) the direct evidence is equally available, complete, and credible, then it's always better evidence than hearsay. That's exactly what I was trying to express with the first sentence of the answer. I do disagree that evidence that is less than perfectly available, perfectly complete and perfectly credible is "no evidence". – Peter - Unban Robert Harvey Nov 21 at 16:26
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    @bvoyelr You seem to have interpreted the answer as requiring all 3 independent examples to happen at the same time. That's not how I expected readers to interpret this answer. If that is indeed the case, can you suggest an edit to make such an interpretation of the answer less likely? – Peter - Unban Robert Harvey Nov 21 at 18:31
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I recall that excerpt from watching most of the testimony. The spirit in which that statement was made, as I understand it, is that the people involved in something may not be willing to cooperate, or only in specific conditions. In such cases, there may not be direct evidence, only hearsay.

Note that this answer is not an endorsement of the quote, but it is what I understood the quote to mean at the time.

With respect to the "needed exceptions to hearsay", there are many, but I don't know how relevant they are to the rest of the quote.

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    @RebeccaJ.Stones Trump has also claimed executive privilege preventing many higher level officials from testifying. See this question on that. – JJ for Transparency and Monica Nov 20 at 1:39
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    This answer doesn't address the matter at hand. The question is "how is hearsay better than direct evidence". Your answer is saying "hearsay is useful when there is no direct evidence". Apples and oranges. – Michael_B Nov 20 at 3:12
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    @Michael_B I characterize my understanding of the quote in question. Of course, if you have the same evidence directly or as hearsay through some proxy than it's hard to see the extra step adding something and that's not how the statement in the question was meant, in my understanding. If you have a different understanding, please write an answer, I think we're all eager to see it. ;) – JJ for Transparency and Monica Nov 20 at 3:27
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    Honestly, I don't understand your comment. I'm just saying that the question is about how hearsay can possibly be better than direct evidence. And your answer says that hearsay may be useful when there is no direct evidence. There is a clear disconnect between the question and your answer. – Michael_B Nov 20 at 4:00
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    @Michael_B I think this answer is really explaining what Quigley meant when he said it, not answering the literal question. – Barmar Nov 20 at 17:42
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There are many cases where the same fact might be supported by either hearsay evidence or direct evidence and the hearsay evidence is better. Here are a few examples:

You want to prove that a particular gun was sold at a particular store on a particular date.

Hearsay: A witness that works at the gun store testifies that she was told by her manager that he sold that gun on that date at that store and that she recorded it in the store's business records.

Not hearsay: The manager testifies that he's pretty sure he remembers selling that gun on that date.

You want to prove that a particular person was at the scene of a particular murder:

Hearsay: A witness testified that they heard the person describing the scene of the murder and described details not released to the public.

Not hearsay: A witness testifies that they saw someone who really looked like that
person leaving the scene of the murder.

You want to prove that a particular person commanded their subordinates to engage in a conspiracy that benefits that particular person:

Hearsay: The subordinates testify that they were directed to engage in the conspiracy.

Not hearsay: The particular person states on television that he directed his subordinates to engage in the conspiracy.

Actually, the subordinates testifying is not hearsay. If you're trying to prove that Alice told Bob something and Bob testifies that Alice told him that something, that's direct evidence. Alice was a direct witness to Bob saying that. That is not hearsay!

Say Charlie overheard a phone conversation between Bob and Alice. Charlie testifies that he heard Alice say to Bob that she would kill him if he didn't pay her money. That could be hearsay if we were trying to prove that Alice actually would kill Bob. But if we're trying to prove that Alice threatened Bob, Charlie is a direct witness to the threat. There's no hearsay involved.

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    I like this answer because it hits one major point, which is that all evidence comes on a range of quality and if you are not making sure “all other things held equal” then it is very easy to pit low-quality direct evidence against high-quality hearsay. I am not sure why you spend your last two paragraphs undoing your third example. – CR Drost Nov 21 at 15:44
  • @CRDrost Isn't that the point? Namely, that high-quality hearsay can be better than low-quality direct evidence? – probably_someone Nov 21 at 17:13
  • @Pleasestopbeingevil Nope. See FRE 801(d)(2). – David Schwartz Nov 21 at 19:06
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A witness that 'changes their mind'

Distancing ourselves from this particular case, it can be that a particular witness has made contradictory, incompatible statements - that some time ago they're saying that something happened, and now they're saying that something entirely else happened. So we have direct evidence (what they're saying now) and indirect hearsay evidence of what they said about the same thing before.

In certain cases it may be that what they're saying now is considered much less trustworthy than what they said earlier - even if any evidence of what they said earlier is hearsay. If we don't trust their current claims, then (as the OP quote says) "hearsay can be much better evidence than direct" because that direct evidence is (considered) worthless and not representative of the real events, unlike the hearsay about the (different) claims made by the same person about the same events.

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    If credibility is in question, the direct testimony is doubly important -- to help build a case for why the claimant was credible when their previous heresay testimony was issued but not now that their direct testimony is being offered. – bvoyelr Nov 21 at 15:15
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In this case, I think the thrust of the idea is that since Trump has prohibited his administration officials from testifying, those who are likely to go against that prohibition and testify anyway, are those likely to be less loyal to Trump so they may have a less favorable [to Trump] version of events to present.

According to Wikipedia

There are several exceptions to the rule against hearsay in U.S. law. Federal Rule of Evidence 803 lists the following:

As for the details on those:

A present sense impression, in the law of evidence, is a statement made by a person (the declarant) that conveys his or her sense of the state of an event or the condition of something. The statement must be spontaneously made while the person was perceiving (i.e. contemporaneous with) the event or condition, or "immediately thereafter."

A recorded recollection (sometimes referred to as a prior recollection recorded), in the law of evidence, is an exception to the hearsay rule which allows witnesses to testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded or documented - even though the witness does not remember the events attested to in the statement. It is sufficient that the witness is able to testify to having made the recording, and to having written an accurate statement at that time.

So (even if Federal evidentiary rules applied to impeachment, which they don't necessarily) the exceptions mentioned above allow notes of those who witnessed the conversation(s) etc. to be entered into evidence, provided those notes were taken in the proximity of the event. Furthermore, those who took the notes are allowed testify as to the accuracy of their records. This might be what Quigley had in mind, but of course, we can't be certain since he didn't elaborate besides mentioning his extensive litigation record. (He also didn't elaborate on what he meant by "better" i.e. from whose perspective, the prosecution's, the defendant's etc. I'm guessing he meant the former.)

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Because hearsay includes some pretty strong evidence, while direct evidence can be extremely weak

First of all, an excellent explanation of this topic can be found here.

An example of hearsay is video or audio recording evidence, for example the Nixon tapes.

An example of direct evidence is eye-witness testimony, which is notoriously weak evidence.

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    Do you have a reference that audio recordings are hearsay? – JJ for Transparency and Monica Nov 21 at 17:43
  • @JJforTransparencyandMonica the video I link discusses that incidentally, would it be helpful to include the relevant rules of evidence here? I assume that's common enough knowledge and relatively easily googled even if you don't know it. – Please stop being evil Nov 21 at 17:59
  • Would this piece on body camera recordings as variously admissible hearsay be good to include? – Please stop being evil Nov 21 at 18:04
  • I'd say links with a description to support claims are always welcome. If it's concise enough and you think it adds to visitor's understanding of your argument then including a direct quote with attribution (naming the source in your text with a link to the source) is welcome. And yes that link on camera recordings is probably good to include as a link, if you want to cite from that a specific relevant quote that's even better (as it may not be clear what lines you're referring to otherwise). – JJ for Transparency and Monica Nov 21 at 18:14

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