DOMINIC CARTER, EVIDENCE LAW, HEARSAY AND TRUTH : IT IS NEVER EASY TO SAY WHAT "ACTUALLY HAPPENED"

AN ESSAY

Earlier this week, I read about Dominic Carter, a disgraced New York TV anchorman. Last year, authorities charged Mr. Carter with domestic abuse after his wife complained that her husband tried to strangle her during a fight. She later recanted her story, claiming that a mysterious "day laborer" was the assailant, not her husband. That did not faze the prosecutor. He proceeded with the case against Mr. Carter.

Mr. Carter appeared in Queens County court to answer the charges last week. In addition to flatly denying that he "had done anything wrong," he begged the judge to dismiss the case because he was "too important" and had "many friends in New York State government." He dropped several names, including Judith Kaye, the Chief Judge of New York's highest court. The judge was flabbergasted, admonishing Mr. Carter: "Don't drop names in here! You know better than that!" She did not dismiss the case. Mr. Carter's employer publicly condemned his conduct and appeared ready to fire him.

Mr. Carter decided to fly to Kansas City after his hard week back home. While waiting to take off, he stood up and made his way toward the restroom. Although no one exactly knows what happened next, a flight attendant screamed: "I want this man off the plane. He tried to assault me." Mr. Carter vigorously denied the accusation, explaining that he "must have bumped into her" while "bending over to tie his shoes." In any event, the flight attendant won the debate and Mr. Carter was ejected from the plane.

Police arrived to investigate the complaint. They determined that the flight attendant caused the altercation. They did not file charges. Mr. Carter took the next flight without incident.

I recount this story because it made me think about proving things. Evidence law represents our legal system's attempt to inscribe past events with "truth." I have written many times that it is impossible to know "the truth" about anything without being personally present to perceive it with our own senses. Yet we must rely on reports to formulate our beliefs about almost every event in our lives. We cannot sense everything that happens on earth. So we must put our trust in stories. Evidence law tries to assign credibility to stories. It also tries to screen out information likely to confuse the truth rather than find it.

Consider Mr. Carter's relatively banal story. The question is "what happened on the plane as he walked down the aisle?" Did he "deliberately assault" the flight attendant? Or did he really bend over to tie his shoes? Was it an accident? How do we know? We certainly weren't there. I read about the conflicting stories in the newspaper. How, then, can we satisfy ourselves about "what actually happened?"

Let's suppose the authorities decided to put Mr. Carter on trial for assault. To prove assault, the State would have to show that Mr. Carter intended to touch the flight attendant in a harmful or offensive way, and that he did touch her in such a way. From a philosophical standpoint, it is extremely difficult to prove intent, because intent exists solely in another person's mind. When threatened with punishment, a person rarely confesses to what he "actually intended to do," so evidence law requires us to look to external factors to "infer" intent. In other words, we must look to observable facts (ie, behavior, words) to conclude an unobservable fact (the actor's intent).

Mr. Carter's defense would depend upon his ability to show he did not "mean" to offensively touch the flight attendant. That is an intent defense. But to prove his intent, he would have to point to external factors. The best way to do that would be to call witnesses who directly perceived the event, preferably from a close distance. They could say what they saw: Did he slap the woman? Did he raise his arms in a threatening way? Did he "look angry?" Did it "look like he meant to hit her?" These are visual perceptions, and they carry the most weight when attempting to convince a listener to adopt "the truth" about a particular event.

But what about words? We can correctly infer a person's intent based upon his verbal conduct. What people say (and how they say it) can lead us to guess what they feel, intend and think. Still, whenever words enter an evidence question, the analysis becomes much more complicated. Everyone knows the word "hearsay," but fewer know the legal definition. In popular understanding, "hearsay" simply means "reported speech from someone else." In evidence law, however, it has a much more technical meaning. It means any "out-of-court statement offered to prove the truth of the matter asserted." See Federal Rule of Evidence 801(c). "Statements," in turn, mean "oral or written assertions or nonverbal conduct of a person, if intended by the person as an assertion." See Fed. R. Evid. 801(a). Applying these definitions, we see that even the defendant's own words can be hearsay if he repeats them in court. In short, hearsay does not have to come from "someone else," nor does it even have to be verbal.

This introduces a serious problem in criminal cases in which the defendant tries to explain what he intended to do. At the same time, the prosecution has an advantage over the defendant because another evidence rule permits a "party-opponent" to introduce an "opposing party's statement" against him. See. Fed. R. Evid. 801(d)(1)(A). This means that the opposing party here (namely, the prosecutor) could use Mr. Carter's statements against him, but Mr. Carter could not use his own statements to defend himself. For example, if Mr. Carter wanted to prove that he said "I was just bending over to tie my shoes" after the flight attendant accused him, he could not testify that he said it because it is "hearsay." But if the prosecutor brought in a witness who said Mr. Carter exclaimed: "Get outta my way, biatch" on his way down the aisle, it would be fully admissible against Mr. Carter as a "statement by a party-opponent."

This is a bizarre result. It almost seems unfair. After all, shouldn't people get to say what they said on earlier occasions in order to explain themselves? When the question involves individual intent, the individual is really the only one who can confirm or deny it. Yet evidence law turns away from this "best source" because it presumes that accused individuals will not tell the truth.

Thankfully, evidence law offers another way for Mr. Carter to get his statements before the jury. Although he could not testify that he said: "I was just bending over to tie my shoes" after the flight attendant accused him, a different witness could. Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for statements relating to the "declarant's then-existing state of mind," including their "intent." In this case, if a nearby passenger heard Mr. Carter say: "I was just bending over to tie my shoes" immediately after the flight attendant screamed at him, it could be admitted to show that Mr. Carter did not intend to harmfully touch the flight attendant. It would not be hearsay because the defense does not offer it to prove the "truth" that Mr. Carter actually tied his shoes. Rather, it would offer the statement to prove the declarant's (ie, Mr. Carter's) then-existing mental state: Namely, that he did not intend to offensively touch anyone.

I mention all this to show how difficult it is to prove things. It is even more difficult to prove them according to technical evidence rules that prohibit people from explaining what they actually said, yet permit others to use their words against them.

Do all these rules bring us any closer to the "truth?" I don't think so. In the end, ascribing truth to a story depends as much on available evidence as it does to pure intuition. In my view, lawyers make a colossal philosophical blunder when they think they have a greater claim to "uncovering truth" because they apply technical evidence rules. No man-made rule can change the fact that human beings have limited senses. When it comes to believing something that allegedly happened outside those senses, one man's guess is virtually as good as the next man's.

INSCRIBING TRUTH : DO WE EVER KNOW "WHAT ACTUALLY HAPPENED?"

AN ESSAY

We believe what we see with our own eyes. At least, skeptics and empiricists do. When it comes to everyday belief, our senses reign. More particularly, our vision reigns. We must be present to observe something to say for certain that it happened. And if we are not present to observe something, we will only believe it if we can visualize it in our minds as “having reasonably or likely happened.” That is a more complicated endeavor than merely seeing something. But we do it all the time. Our minds constantly alternate between belief and unbelief. Belief reflects our conscious decision whether or not something happened, or whether something exists. We constantly weigh whether or not we believe things. We nurture our beliefs. We express both trust and judgment with belief. If we deem something “worthy of our belief,” we believe it. If not, we say it is “not credible” and dismiss it.

Our eyes and ears have limited range. Our noses and skin nerves have an even more limited range. For better or worse, our immediate ability to sense things is strictly limited to the relatively small size of our bodies. In that light, we have precious limited ability to truly “perceive” things in order to “truly” believe them. Yet our observations and experiences provide us the most reliable pathway to “truth.” We know something is true when we perceive it ourselves. But because our senses are so limited, there are very few things in life we can verifiably believe “true.” For everything else, we must rely on reports. We must accept others’ accounts about “what happened,” then decide for ourselves whether to believe them. Unlike “sensory belief,” this is “second-hand belief.” It does not directly involve the senses. It requires far more intellectual effort than merely seeing something and remembering it.

In general, we can say that we are not bound to believe anything that we do not perceive. If our senses do not directly observe an event, condition or act, there is no way we can say it “actually happened” or “it actually exists.” Rather, we decide whether to believe things we do not observe. Still, we readily believe things we do not observe as long as we satisfy ourselves that the report is “reliable.” What makes stories reliable? This is the core of evidence law. Evidence law aims to regulate the information juries hear in order to provide them only those details that are “most worthy of belief.” In the law—as well as in life—the question for any listener is: What is the truth? That, of course, is the monumental inquiry. And it is not easy, because truth is a tricky subject.

Truth relates to belief. Leaving metaphysics to one side, truth in the law means “what actually happened” in a particular case. That sounds simple, but it is actually immensely complex. After all, “sensory truth” and “sensory belief” only exist in the minds of those who personally experienced an event or perceived a condition. They were “there.” They know “the truth.” But for everyone else—and that means the judge, jury and lawyers—truth is a matter of belief. They were not there. Thus, they must decide for themselves what the “truth” is. It is not what “actually happened.” Only those who perceive something know that. For the listeners, truth becomes a simple question of belief. More to the point, it becomes a subject for judgment. Listeners only believe what they decide “probably happened.” That may be completely different from what “actually happened.” In short, truth in court means nothing more than what the jury is willing to believe.

My evidence professor in law school should have focused on sense and belief before he began teaching us all the Byzantine rules that govern whether particular information is “admissible as evidence” in a court case. If he had begun with belief—and what makes people believe whether something “actually happened”—it would have rendered all the rules easily understandable. The Federal Rules of Evidence methodically screen what information juries may hear before deciding whether to believe a story. In the end, it all comes down to belief. The evidence rules merely channel the information that leads to a jury’s decision whether or not to believe something. No one in the jury has access to “sensory truth” when listening to each side’s story. Rather, like any listener, it must rely on reports. The evidence rules monitor the substance of those reports. In short, they make sense and perception dominant. They allow jurors to hear about what witnesses saw, because vision is supposedly most worthy of belief. Yet the rules carefully restrict a jury’s access to reported language (“hearsay”), because language can distort as much as it can enlighten. And when someone’s life or fortune is on the line, the evidence rules presume that a witness will more likely distort words for his advantage than candidly report what he actually heard. In sum, jurors are free to believe whatever they want. The evidence rules simply try to feed them the “most reliable information” before they decide what is “true.”

But there is more to truth than what a jury decides. Human beings constantly struggle with truth because so much happens that they cannot perceive. They have no choice but to evaluate others’ words. In life, there are no evidence rules to screen out supposedly “unreliable” reports about events, acts and conditions that occur beyond our sensory range. We want the truth, but there is no way we can say it “actually happened.” We must believe things despite imperfect information. We make decisions on imperfect information every day. We judge things “true” even if we cannot verify them.

Still, there are certain institutions that help us believe things we do not perceive. The law provides a ready example. In fact, the law wields a disproportionately large influence on our willingness to believe things we do not perceive. In our legal system, for instance, we theoretically subject suspected criminals to exhaustive procedures designed to affix “truth” to their alleged misdeeds. The State begins by accusing the suspect. Is the accusation “true?” Does the verbal form match what “actually happened?” That is the question. Obviously we cannot know whether it is true for the same reason we cannot know whether anything is true if we are not present to observe it. Yet legal machinery does its utmost to assure us that accused suspects “truly” broke the law. It requires prosecutors to prove “beyond a reasonable doubt” that the suspect committed every single element of the crime. By that requirement, the law seeks to assure the public that the criminal “truly” did what the State says he did, even though the jury never perceived the act. This machinery really has no greater claim on truth than anyone else who was not there to perceive the suspect. Yet it reassures us. It inscribes truth on the offender. After all, truth is persuasive because it reflects belief. If we believe that someone committed a crime, we feel justified in punishing him. Still, just because the law inscribes “an official truth” on a criminal does not verify that he actually did what the State says. We weren’t there. Our senses did not perceive what we believe. To say that the criminal “truly” committed a crime, then, really represents a judgment, not a perception.

Truth is essential to maintain government authority. It is no accident that the State expends maximal effort to affix truth to a criminal’s acts. In so doing, it reminds the people that it not only has the power to punish, but it also has the power to say what “actually happened” without ever perceiving the event. The law, in other words, manipulates public belief and controls truth. Most people readily believe that a convicted criminal did the act for which he received punishment. After all, from a listener’s perspective, there is no reason to doubt the jury’s findings. The listener was not there to witness the criminal’s act. He has no “sensory access” to truth. So he relies on “official channels” to truth. If the State says he committed the crime, and the jury found “beyond a reasonable doubt” that he did, then suddenly the charge becomes “true,” although no one saw it. Listeners comfortably conclude that a convicted criminal did act as charged. They cannot say they know for sure. But they rely on the State’s truth-branding authority. They reward the State with their belief. This is a substantial reward. For when people believe a report, they implicitly approve and respect the person who gives it. The State, then, maintains its control by inspiring belief in its listeners. If the State can cause people to suspend their skepticism and believe things they never see, it truly wields power. In sum, “actual truth” does not really matter. Again, the real question is belief, not “what actually happened.”

Should “actual truth” really matter? I would like to think it does. But that may be asking too much. We cannot sense everything. In fact, considering all the events, acts and conditions that occur and have occurred on this planet, we sense virtually nothing. Everything else comes to us second-hand. We hear, we weigh, we judge, we believe. We make our own truth based on the information before us. Yet many vie for our belief, including the State. We are not bound to give it, but we do. Procedures and rituals awe us. Trials and executions write truth on their subjects. We believe things as long as the State takes the time to grind through the ritual. Does it make an event any more likely to have happened than it would have without the ritual? Not really. If we weren’t there, we can’t really know. Every report is tainted by the bias and perspective of the person who gives it. But we can choose whether or not to believe reports. The State has numerous mechanisms intended to win our belief. And they are quite effective. After all, when we hear that a person has a criminal record, do we believe he committed the crimes, even though we never met him and never saw him do anything? Yes. We have no sensory access to truth in this situation, but we assuage our doubts because the State has written truth upon the man.

In virtually every case, we judge truth. We rarely know it.

ILLINOIS REWRITES THE HEARSAY RULE

Yesterday, the Illinois General Assembly unanimously passed a bill that alters the common law hearsay rule in First Degree Murder prosecutions. This is a dramatic step. I have often written that the law's main purpose is neither justice nor fairness. But evidence rules such as the prohibition against hearsay are one example of the law's concern for just results. I have also written that the common law generally reflects chauvinistic, outdated values that do little but protect property interests against those with less property. Yet the common law gave us the hearsay rule to ensure that no one loses their life or their property without strong, empirical proof. The hearsay rule protects justice because it is a safeguard against bad evidence. Without it, people could go to prison on fabricated testimony. People could lose their liberty without a chance to challenge the person who spoke out against them. This is intolerable in a society dedicated to liberty under law.

Law concerns only body and property. True, these may not be the only important things in human existence, but we gain insights into a government's character by evaluating how it treats the bodies and property of its citizens. Both the English and American systems profess respect for bodily liberty and integrity. To that extent, their legal systems developed evidence rules that indulge every ambiguity in favor of the person who stands to lose his bodily liberty. England enshrines this principle in Magna Carta: "No man shall be executed, imprisoned or otherwise disseized but by the law of the land." America picked up this ideal in the Fifth and Fourteenth Amendments, namely that neither State nor Federal governments may deprive a citizen of "life, liberty or property without Due Process of law." These two principles reflect the same core idea: That government may not take away a person's life, bodily liberty or property without affording him a relatively fair process under law. While "fair process under law" may often be less than perfect in practice, the principle is a sound one. It sets an aspirational standard that expresses respect for the individual in his confrontation with government power.

Evidence rules developed in England in order to provide "fair process under law" prior to adverse government action against an individual. Before government could condemn a man, it had to show that the man violated the law by convincing sensory evidence. To do this, it had to bring in the best facts. People believe what they directly see; they are much less likely to believe something reported to them by a third-party. This is pure "common sense." One much more readily believes that a man stole an apple if one sees the man surreptitiously taking an apple from a cart than if one heard from a jealous neighbor that he took the apple. The common law recognized this by enforcing the hearsay rule. At common law, the court refused to even consider statements made outside the courthouse if they were offered to prove the truth of the matter asserted. Without going into excruciating detail, the common law carved out a great many exceptions to this general ban, but the principle itself is simple and just: You cannot take away a man's liberty by presenting a witness who simply recites what he heard from a person who is not in court. After all, how can the accused man challenge a statement when the speaker is not there? The witness could simply invent what he heard. Invention is no basis to send a man to prison or--worse--put him to death. Such a result would contravene the very spirit of "fair process under law" that Magna Carta and the Constitution both intended to protect.

But Illinois decided it would "relax" the hearsay rule in First Degree Murder cases. In its new legislation, the General Assembly declared that hearsay statements only by a murder victim may be considered against the Defendant if there is a "likelihood" that the Defendant killed the victim in order to prevent her testimony. This undermines the very purposes that animate the hearsay rule. It allows a jury to convict a man for murder based upon a dead person's statements to a third party. Obviously the Defendant cannot challenge the dead person's version of events. Consider what mischief this could cause. For example, in a murder prosecution, the State may present the testimony of the victim's mother--who is biased and hostile to the Defendant--to say her daughter told her a week before her death: "My husband wants to kill me." At common law, this statement is pure hearsay if it is offered to prove the Defendant either killed or had a motive to kill his wife. There is no way the Defendant can challenge the accusation because his wife is dead. Yet under the Illinois law, this statement may be used to condemn the Defendant. He could even face the death penalty on this evidence.

Defendants have a categorical right to challenge the evidence presented against them. No matter how much we may "think" a murder Defendant committed the crime, our Constitution requires much more than mere intuition to take away his life or liberty. They must be allowed to challenge adverse testimony face-to-face. U.S. Const. Amd. 6. A famous evidence scholar wrote: "Cross-examination is the greatest legal invention for the discernment of truth." Yet under the new Illinois hearsay rule, Defendants will be forbidden from applying that invention. They must sit helplessly by while witnesses recite the victim's statements. By the same token, witnesses will be free to invent, embellish and fabricate the "victim's words" as much as they wish. True, a good defense attorney could undercut the witness' recollection of the victim's words, but this is modest recompense for the damage such statements can do. The common law had very good reasons for excluding hearsay; and the Illinois law brings them disturbingly back to the light.

I am quite confident that the Illinois law will not survive constitutional scrutiny. Aside from technical constitutional violations, the law squarely arouses a sense of unfairness. You don't have to be a lawyer to know that hearsay is usually extremely unreliable, and it is doubly problematic to think that Illinois now allows its use to justify convictions for murder. Hearsay is inherently suspect. It borders on the absurd to consider that Illinois wants to allow it in the most serious criminal prosecutions, but not others. This differential treatment presents separate constitutional problems under Equal Protection principles. Specifically, a legislature must have "rational basis" for allowing hearsay in prosecutions for one crime, but not in others. Is it rational to allow victim hearsay in First Degree Murder cases, but not Second Degree Murder cases? If the State has an interest in convicting killers, it should allow hearsay in both situations, yet it selectively targets only one. Beyond that, hearsay lends itself to fabrication. To rest a conviction on fabrication would be to deprive a man of liberty without "fair process under law."

Illinois' law makes further constitutional missteps. In 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). In that case, the Court concluded that the Sixth Amendment forbids any court from considering a statement made by an "unavailable witness" for "testimonial reasons" if the Defendant had no prior opportunity to cross-examine the speaker. "Testimonial" statements mean statements made with a reasonable expectation that the statement would be used in a criminal investigation or prosecution. Classic "testimonial" statements include statements made to police, detectives, prosecutors and other "law enforcement professionals." The Illinois law places no limitation on the "type of listener" to whom a murder victim makes a statement. In Illinois, a police officer may testify: "The victim called me 4 days before the murder and said: 'My husband is going to kill me soon.'" Any reasonable person would feel that such a statement would be used in a subsequent criminal proceeding. The Defendant had no prior opportunity to cross-examine it. Indeed, it may be pure fabrication. Obviously the victim is dead and she is now "unavailable" as a witness. Under Crawford v. Washington, the statement violates the Sixth Amendment. Yet Illinois now presumes to admit such statements.

I rarely defend legal technicalities. But when legal procedure operates to defend individual liberty against governmental intrusion, I am a vigorous advocate for the individual. Illinois' new hearsay rule should shock anyone who cares about limitations on governmental power. As much as I ridicule the common law, I am thankful that it has been wise enough to ban hearsay as a basis for condemning people to imprisonment or death. Illinois' new hearsay rule denies a Defendant the right to challenge evidence arrayed against him. It also provides an opportunity for vindictive witnesses to fabricate a dead person's words in order to convict the Defendant. While the law may not always provide fairness, the hearsay rule is an instance when it does. To undercut the hearsay rule is to introduce a whole new dimension of unfairness into the already unfair confrontation between individual and State in criminal prosecutions. I am an unabashed theorist; I care about fairness and justice. The hearsay rule is a procedural mechanism that protects both. To that extent, I oppose any legislative attempt to reduce those protections.

Every government wants to enforce its criminal laws and convict the guilty. But we must never allow its zeal for convictions to dismantle the constitutional protections that shield us from brute government power. If we allow even one deviation, we set a precedent for further erosion. When that happens, we will be hard pressed to stop the government from assuming more and more tyrannical ways.