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Tuesday, December 01, 2020

Defending Trump's lawyers on hearsay (Updated Twice)

The Trump Campaign is attempting to appeal an early defeat in Michigan state court. A core piece of evidence was an affidavit by Trump poll watcher Jessica Connarn, testifying that an unknown poll worker had come to hear, in tears, and told her that another unknown poll worker had told her to change the dates on ballots. The trial court rejected this as hearsay-within-hearsay. The brief argues that Connarn's affidavit is not hearsay, because she was describing her first-hand impressions (that the unknown poll worker spoke, that she was crying, that other people yelled at her). The arguments have drawn the scorn of law Twitter.

I want to offer an argument that some of this is not necessarily inadmissible hearsay, although not for the reasons the Campaign argues in its brief.

There are two layers of hearsay--Unknown poll worker # 1 to Connarn and Unknown Poll Worker # 2 to Unknown Poll Worker # 1. Connarn can describe what she saw UPW #1 do. But the Campaign wants her to testify to what UPW #1 said UPW #2 said. That is the additional layer the Campaign seems to ignore.

As I like to map these problems for class:

    Connarn---UPW # 1 ("Someone told me to change the dates")---UPW # 2 ("Change the dates")

In a case with multiple declarants, each layer must be admissible under the rules. Working from the outside in until we get to the witness:

    # 2 to # 1: We do not know what was said. But it seems that #2's words to #1 are a command ("change the dates"), which is not a statement. Alternatively, and more powerfully, the command to change the dates is the unlawful conduct--manipulating ballots--alleged in the case. So what # 2 said to # 1 is a verbal act (the wrongdoing of commanding the change of dates requires words) which is not treated as a statement offered T/M/A. If # 1 testified, I do not think hearsay would bar her from testifying to what # 2 told her to do.

    #1 to Connarn: This is a statement (# 1 asserts that # 2 told # 1 to do this) and it is offered T/M/A (it must be true that # 2 told #1 to do this). But if # 1 was crying, does that make this an excited utterance--she is describing the event (being ordered to change the dates) while under the stress of excitement (shown by her crying) caused by being order to change the dates. Perhaps not, but that is the argument the Campaign could make; that it is not making it shows how bad the lawyering is.

To be sure, there are reliability concerns with Connarn's testimony, since both declarants are unknown and she probably has serious credibility problems. Perhaps that undermines the relevancy. Or perhaps it triggers a solid 403 objection. Or perhaps a court decides that the second statement (# 1 to Connarn) is not admissible as an excited utterance because the specific circumstances of the particular statement (unknown people reporting something to an unreliable witness) indicate untrustworthiness--some courts add this element to the 803(2) analysis. But I do not  think it is as simple as saying "this is hearsay."

Please tell me why I am wrong.

Update: The commenter below says there is an additional layer of hearsay--Connarn did not speak to the crying poll worker, but was told by an unknown Republican poll challenger about what the crying UPW #1 said. Looking at the Affidavit, this is right. The affidavit says: "I was approached by a Republican Party poll challenger, who stated that a hired poll worker of the TCF Center, in Wayne County, Michigan, was nearly in tears because she was being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer."

So, as the commenter says, on my model we have:

    Connaran--GOP--UPW #1---UPW #2.

There is no argument to get that new innermost leg (GOP to Connaran) in under the rules. Even if the GOP person was crying or speaking right after it happened, she is describing/upset by what she was told by UPW #1 and Connaran is repeating that for T/M/A. I give a similar example in class to distinguish a declarant excited by and describing an event and a declarant excited by and repeating what someone else says about an event.

But if this is correct, Thor may be in some trouble. Here is how the brief summarizes Connaran's affidavit:

    p.4: Jessica Connarn testified in her affidavit that she personally witnessed a poll worker’s distress because that poll worker was instructed to count ineligible ballots being tallied as lawful votes at the Detroit central counting board.

    p.17: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

    p.22: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

The brief three times states that  crying UPW # 1 told Connarn personally, not the "Republican poll challenger," about the date-change command. Unless Connarn submitted a second affidavit at some point. Which then puts her to the task of explaining away the contradictory sworn testimony.

Updated Again: Unless (I know, I am spending too much time on this): One could read the original affidavit (not the situation described in the brief) a bit differently: Not as the GOP challenger being told by # 1 what # 2 had told her to do, but as the GOP challenger having witnessed first-hand the exchange between #1 and #2 and reported it to Connarn. The affidavit does not make clear how GOP found out what # 2 told # 1. So perhaps we have:

    Connarn---GOP ("2 told # 1 to change dates and # 1 was crying")---#2 ("change dates")

#2's statement remains a verbal act, witnessed by GOP and about which GOP could testify without hearsay objection. What about that inner leg from GOP to Connarn? I think it could be a present sense impression, depending on when GOP spoke to Connarn, or an excited utterance, if GOP was somehow upset by what she witnessed and is describing; we need some foundation. Either way, GOP is describing an event or condition (#2's verbal act) to the person who will take the stand.

Posted by Howard Wasserman on December 1, 2020 at 02:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Thanks for taking the time, which I recognize is valuable, to digest my lengthy multiple comments; and thank you for making the corresponding updates. Sorry for preoccupying you with this, but I get a real kick out of evidence issues, so I wanted to make sure I did them justice.

At the risk of prolonging this even further, I want to respond briefly (seriously!) to the updates. Then I’m truly done. (Of course, someone else can chime in for a change.)

To the first one (“Update”). Until you quoted these three passages, I hadn’t actually spent any time looking at the brief itself.

As to the first passage (on p. 4), it seems less important because it’s only in the background section. Still, it almost certainly can’t be right because—assuming “distress” refers to the “nearly in tears” bit—only GOP ever observed that content, not JC. (It’s admittedly somewhat unclear because the brief doesn’t give a paragraph citation to the affidavit, but that’s the brief-writer’s fault.) So, while it’s technically not in the argument section, it does pretty much lie about what’s in the affidavit.

While the second passage (on p. 17) is just a minor part of an argument on a different issue, it’s word-for-word the same as the third passage (on p. 22), which is part of the argument in question, so I can address them together. Aside from the small issue of the appendix page citation being wrong, the affidavit paragraph citation is also wrong. The brief cites ¶1, but that quote is actually from ¶2. Also putting that aside, and looking at the entirety of ¶2, nowhere does it say UPW1 was even “nearly in tears”, let alone actually crying. I don’t think you can just infer that either based on what GOP told JC in ¶1 (which in itself of course, is also hearsay). So there seems to be no foundation to support excited utterance (or present sense impression for that matter). You also bring up the verbal act/command exception again. I'll confess I'm just not all that familiar with that one, so I'd have to see quotes from the rule in question and/or the relevant MI case-law. (But anyway, I don’t see anyone arguing that exception in the brief.) In Thor’s defense, at least here, in the argument sections themselves, nobody is manufacturing phantom content of the affidavit for a change.

To the second update (“Updated Again”). I agree you might have an argument that it could be read that way. However, it’s unclear, and certainly it’s never stated explicitly that GOP observed the part about UPW1 being ordered to change dates, as opposed to being told that part by UPW1. (I won’t dispute that GOP seems to have observed the “nearly in tears” part, for whatever that’s worth.) To me, it seems more likely that GOP heard it all from UPW1 as opposed to observed because: (1) it sets up a nice parallel with ¶2 where JC then talks to UPW1 herself and hears (almost) the exact same thing and (2) if GOP had actually observed it, why on earth is JC submitting the affidavit instead of her ostensible colleague, GOP, who is the eyewitness? But again, you rightly point out the lack of any foundation even if GOP was 100% observing.

Thanks again for the fascinating post and updates!

Posted by: hardreaders | Dec 2, 2020 1:29:54 PM

Thanks for this. I updated the post to reflect the departure between the affidavit and the brief.

FWIW, that there were multiple UPW #2 ordering UPW #1 to change the dates would not matter for the hearsay analysis--however many were saying it, it remains a verbal act. It may undermine the reliability of the whole thing for non-hearsay arguments.

Posted by: Howard Wasserman | Dec 2, 2020 9:48:20 AM

Relatedly, I don't see how the note allegedly provided by UPW1 could ever possibly be authenticated, unless UPW1 is ultimately identified. But she conveniently seems to be quite elusive these days. (Plus the quality of the photo in Ex. 1 is abysmal.)

Also, for an affidavit where the numbered paragraphs barely take up a single page, it's comical how convoluted the narrative is.

UPC, being another Republican Party poll challenger, is presumably JC's colleague, but yet JC submits the affidavit even though UPC is ostensibly closer to the action. By the same token, JC and UPC are colleagues, but she doesn't seem able to provide UPC's name.

In addition to UPC, we also have JC mysteriously failing to get UPW1's name, or the supervisor's name, or anyone's name for that matter. Didn't they cover this rudimentary due diligence work in poll challenger training? :)

There's so much passive voice too. "I was asked", "I was told", etc. etc.

And strangely JC's purported "opinion" in ¶3 is only based on what she was *told*, so apparently the note from UPW1 ends up being totally irrelevant anyway.

I know the issue of sanctions has already been debated ad nauseum, including on this blog, but now that affidavits are in play, does it seem like there's a chance of people getting rung up for perjury?

Posted by: hardreaders | Dec 2, 2020 12:42:09 AM

Starting from the caveat that I’ve done no research on this aside from inspecting the affidavit itself, I think I can discern at least one significant issue. The problem is that all the content you discuss above comes from ¶1 of the Jessica Connarn (“JC”) affidavit, but as I see it that paragraph actually contains three layers of hearsay, not just two.

You map it as JC—UPW1—UPW2, but in fact there’s a third intervening layer of hearsay between JC and UPW1. (Also, UPW1 was allegedly being instructed by unknown “other hired poll workers” [i.e., *plural*], so it’s really UPW2-N, but I'll stick with UPW2 as a convenient shorthand.) ¶1 states in part that “I [JC] was approached by a Republican Party poll challenger, who stated” all the content discussed in the OP. The involvement of this unknown poll challenger (“UPC”) creates the intervening third layer. As such, the full and complete mapping should be JC—UPC—UPW1—UPW2.

Given this intervening third layer, I don’t see how to surmount that initial hearsay problem before even getting to the rest. On the face of it, no exception would seem to apply. UPC just came up to JC and told her a number of things UPC had seen and heard previously (mostly the latter, aside from observing UPW1’s purported demeanor, but more on that below).

For one, there’s no apparent foundation for UPC to be making an excited utterance—no information is given about UPC’s condition whatsoever, e.g., whether UPC was excited, under stress, etc. I don’t see any basis to just infer that UPC was stressed either simply because UPC allegedly saw UPW1 “nearly in tears” at some unknown earlier point in time. (The affidavit does NOT claim that UPW1 was actually crying; and of course not, because had she actually been in tears, that would presumably have drawn some attention from those nearby.) Even granting that UPC had the requisite “excitement”, I still don’t think an excited utterance can just be regurgitating yet more hearsay from someone else. It should be about an “event or condition” the declarant perceived, with the prototypical examples being an imminent car crash or an active shooter. The mere hearsay of another—here, UPW1—wouldn’t seem to qualify as the required “event or condition”.

Moreover, it seems like a real stretch to make out a present sense impression. Again, there’s no explicit foundation to establish the necessary timing. It doesn’t say UPC had just spoken with UPW1, and it’s completely silent (no pun) about how much time had elapsed from when UPC and UPW1 spoke. And like excited utterance, there’s have a similar “event or condition” requirement—the “sense impression” has to be some kind of description of an event or condition. So even putting aside the timing issue, I don’t see how another person’s hearsay—i.e., UPW1’s—can be argued to meet this standard. (Maybe UPW1 being “nearly in tears” arguably could, because that was her alleged condition, but that part standing alone would barely seem to move the needle.)

Summing up, I think the argument to avoid hearsay would falter at the outset with UPC, so I don’t see any need to drill down further to UPW1 or UPW2.

That said, if the issues caused by UPC’s involvement are ignored for the meantime, then I suppose there’s an outside chance the UPW1 statement could barely eke out as an excited utterance—but again, note the issue with actually crying as opposed to just “nearly in tears” (whatever the latter even means). Let’s be generous and deem it an excited utterance. Then what? It really doesn’t advance the ball in the slightest because the sum total of UPW1’s statement is just more hearsay from UPW2.

So then UPW2’s hearsay needs to be addressed next. While I agree it could be taken as a command, I don’t think that solves any problems. Even if it’s a command, it still contains a very crucial (from the campaign’s perspective anyway) factual assertion, and to me it’s a given that it’s being offered T/M/A. So the argument for a hearsay exception on that basis seems pretty underwhelming. Maybe it could be a statement against interest, but in that case it needs to be shown that UPW2 is unavailable, and there’s no indication that anyone is making such an argument.

OK, it’s my turn now. Someone better at this please explain why *I’m* wrong!

Posted by: hardreaders | Dec 2, 2020 12:19:37 AM

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