By Dr. Ken Broda Bahm:
Sometimes characters are important, but never seen. For example, Godot is waited for, but doesn’t make it to the stage. In HBO’s Veep, the President is often the center of the story, but is never seen or heard on screen. Even in the Charlie Brown cartoons, we hear about but never get to meet the “little red-haired girl.” There are parallels in the trial world: The list of individuals who play a role in the stories, told by both sides, is generally longer than the witness list. Of course, for those who are truly key to the story, one side or the other will want them there, yet there are still circumstances — death, distance, and doubt (about what they’ll actually say) — that can still keep them off the stand.
The legal mindset, as well as the jury instructions, tell us that jurors will base their verdicts strictly on the testimony and other evidence they see, and not the charaters that they hear about, but never from. Those who aren’t called, we would like to think, aren’t going to be a factor. Not so. Those of us who do frequent mock trials know that when you test only a handful of witnesses, mock jurors are prone to think about those they haven’t heard from. And new research focused on the effect of hearsay testimony (Sevier, 2014) indicates that jurors are likely to evaluate absent witnesses as readily as they evaluate the present ones. That finding has implications for the treatment of hearsay evidence, and also encourages us to think broadly about the whole cast of characters in the case drama, and not just the subset called as witnesses.
Hearsay: I’ve Heard Jurors Can Handle It
Hearsay — an out-of-court statement offered for the truth of the matter asserted — is not allowed in testimony (assuming none of the 28 exemptions under the law apply. According to Yale Law Professor Justin Sevier (2014), the central belief currently serving as a foundation for that prohibition — “Tribe’s Triangle” — has never been tested empirically. The notion first put forward by Harvard Professor Lawrence Tribe argues that hearsay is unreliable because it suffers from the infirmities of both the actual witness, as well as infirmities of the the original declarant. Because juries are presumed to be blind to the infirmities of the original declarant, due to their absence and the lack of cross examination, offering hearsay testimony is thought to skew the evidence.
Putting that theory to the test, Professor Sevier conducted two studies. In the first, he created several variations in trial testimony, including conditions in which the witness, as well as an original declarant being discussed by the witness, either did or did not have clear problems (e.g., relating to memory, sincerity, or ambiguity). That study shows that participants do recognize these testimonial infirmities, whether they are related to the actual witness or to the hearsay ‘witness,’ and reduced the credibility of the testimony accordingly. The second study looked at whether jurors will discount a prosecutor’s case when it relies on increasing amounts of hearsay testimony. The short answer? They will. To Professor Sevier, these findings support the conclusion that parties are not unduly prejudiced by hearsay because jurors are able to evaluate both present and absent witnesses.
Recommendation:
The article advises rethinking the conditions for hearsay evidence, but that is a matter for the legislature or for judges. For litigators, the takeaway is to set aside the assumption that jurors will be blind to the weaknesses of out-of-court statements. If hearsay evidence gets in past your objection, or is admitted with a limiting instruction you don’t trust, then you can still look for ways to attack the credibility of those statements. Even without the original declarant present — or perhaps especially without that declarant present — jurors are potentially open to that line of attack.
Beyond Hearsay: Think About the Whole Cast of Characters
While Justin Sevier limits his analysis to the specific evidenciary issue of hearsay, I believe the research also carries a lesson regarding jurors’ overall understanding of the case. The fact that research subjects give equal scrutiny, responding comparably to problems with the witness as well as the original declarant’s testimony, suggests that they don’t see themselves as just evaluating testimony. Instead, they’re evaluating the story, including all of the information that goes into it. That means that if a character has a salient role in the overall narrative, then jurors are likely to wonder about that role, assessing that individual’s justification, motives, and credibility. They will ask themselves what that person would say if they were in court, and they’ll form theories about what that testimony would be.
Recommendation:
Beyond the basic advice to think about the whole story and not just the witness list, the studies also carry an important lesson for pretrail research. Early on, before the close of discovery, it is a great idea to pull together a few focus groups. At this early stage, one important purpose of the research is to find out where the gaps are, where the mock jurors have questions, and who they would like to hear from. Lawyers will naturally have some idea of that already, but that perception will often be dominated by the legal elements. In other words, the evidence that you want is the evidence you’re supposed to have. And, if you want to avoid losing on summary judgment, there’s no escaping that. But in trial, there is a critical role for the evidence the jury expects as well. The script cannot call for all characters — no “little red-haired girl,” no President, and no Godot — but if jurors are waiting for that, then it helps to account for that fact via the testimony of other witnesses and the overall case presentation.
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Other Posts on Witness Testimony:
- Guess You Had to be There (Prefer Present Witnesses Over Absent Ones)
- Counterpunch: Ten Ways to Fight Back on Cross
- Don’t Overthink Your Credibility Assessments
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Sevier, J. (2014). Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance. Georgetown Law Journal, 2015.
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