5 thoughts on “The crack video, hearsay evidence, and the mutability of ‘fact’ | #TOpoli

  1. Hey, thanks for the response–and the post responding to it–but with due respect, I think you are wrong on technical grounds, perhaps because I have not made clear the argument I’m addressing. In the audio clip I linked to, the host tells John Cook and Kevin Donovan directly that they are relying on hearsay evidence. They are not. They are eyewitnesses to the contents of the video. If they were in court testifying to what they saw, their evidence about what they saw would not be hearsay.
    Now, to the reading public and the jury, when we repeat it without direct knowledge, it is hearsay, because we have heard it rather than seeing it. But I’m talking about the primary source reporting itself—it is not hearsay, it is direct testimony. When I tell you about what I read, it is hearsay (though, as I say, there are no rules against hearsay in journalism anyway).

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    • I think I see where we disagree.

      Whether or not you can categorize evidence as hearsay depends not only on how it’s introduced and where it’s obtained, but also on the question it’s intended to address and what you’re trying to prove with it.

      The fundamental question in that regard is whether the evidence, in the context of what it’s intended to substantiate, can be independently verified. If so, then it’s probative; if not — if it depends for verification on something that’s not there and can’t be tested — then it’s problematic and probably hearsay. Whether it’s admissible in a court of law is, of course, a legal question.

      For example, if you’re saying you saw something, I can test your eyesight and confirm that yes, you did see something. But that doesn’t necessarily prove that what you think you saw actually happened. In this case, we can test John Cook, Kevin Donovan and Robyn Doolittle’s eyesight, and on that basis, decide that yes, they did indeed watch a video, and that they saw things happen in that video. But it doesn’t necessarily demonstrate the veracity of what they say happened in that video. It doesn’t mean they’re lying; it just means that what they say happened in the video can’t be verified independently. We’d need to see the video ourselves for that.

      We all know that people are going to draw inferences from what the three journalists say they saw in the video. Jon Stewart’s already had some fun with that, and as we’ve agreed, the court of public opinion has far looser evidentiary standards than courts of law. For the reasons I set out above, however, I’m not convinced that the accounts of John, Kevin and Robyn would pass the hearsay test in a court of law. It would depend on what you’re trying to demonstrate with their testimony.

      Admittedly, I’m splitting hairs, and I’m not a lawyer, so I could very well be wrong on this. But it’s on such hair-splitting that due process depends.

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  2. Sol, I think you’re confusing the abstraction of reporting on something you saw in a video with the abstraction of stating as fact something that you yourself didn’t witness.

    I don’t think the Star reporters have stated as fact that Rob Ford smoked crack (Gawker is clearly operating in a different legal environment!). They’ve only reported what they saw in the video and what the other people claimed to them were the circumstances of the video. Could they be misinterpreting what they saw in the video? Sure. But that’s not the definition of heresay. The whole “independent verification” thing is a red herring. Even eye witnesses with direct observation of something can be wrong – wrong about identities, wrong about times and places, wrong about all kinds of things that can’t be independently verified – so long as they stick to what they themselves saw, it’s not heresay.

    Of course, the real question is whether Rob Ford actually smoked crack. And I’ll agree that the reporters’ accounts do not constitute direct proof that he did. But it’s not heresay to report what they themselves saw.

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  3. Pingback: The Ford follies, and framing the discussion | #TOpoli | Pressed by Sol Chrom

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