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Wednesday, November 11, 2020

Repeating other's thoughts

As I wrote yesterday, I have not been able to organize my thoughts on everything going on. Fortunately, I agree with everything Benjamin Wittes says at Lawfare.

Meanwhile, we can have fun with hearsay and those who did not pay attention in class:

The Trump campaign also sought to temporarily stop counting some ballots in Detroit. It cited a GOP poll watcher who had said she had been told by an unidentified person that late mail ballots were being predated to before Election Day, so they would be considered valid.

The judge repeatedly asserted this was hearsay, but Trump campaign lawyer Thor Hearne sought to argue that it wasn’t — despite it having been someone who said they heard about something they weren’t personally involved in. He pointed to a vague note the poll watcher produced — which said “entered receive date as 11/2/20 on 11/4/20” — as evidence:

STEPHENS: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?
HEARNE: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.
STEPHENS: Okay, which is generally known as hearsay, right?
HEARNE: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

The two later returned to the point, after Stephens reviewed the note, and Stephens echoed Judge Diamond’s exasperation:

STEPHENS: I’m still trying to understand why this isn’t hearsay.
HEARNE: Well, it’s, it, I –
STEPHENS: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.
HEARNE: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge --
STEPHENS: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.
HEARNE: Well it’s a firsthand statement of her physical –
STEPHENS: It’s an out-of-court statement offered where the truth of the matter is [at-issue], right?

Posted by Howard Wasserman on November 11, 2020 at 04:47 PM in Howard Wasserman, Law and Politics | Permalink

Comments

I know. Imagine being a president-elect and about to begin your term and a party leader who is considered a moral leader and a political legend in the opposing party says you're illegitimate.

Posted by: thegreatdisappointment | Nov 12, 2020 6:15:44 PM

Why Won't Trump Concede? Cognitive Biases. https://lawprofessors.typepad.com/legal_skills/2020/11/op-ed-why-wont-trump-concede-by-scott-fruehwald.html

Posted by: Scott Fruehwald | Nov 12, 2020 1:35:52 AM

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