Now that an impeachment trial in the Senate is imminent, what would it look like if Chief Justice John Roberts conducted it like a federal criminal trial with a properly instructed jury? It won’t be, of course, but you can bet that politicians on both sides of the aisle will be talking about what is and isn’t hearsay, how to determine intent, the significance of circumstantial evidence, what to make of missing witnesses, and generally, what evidence is reliable.
While the Senate trial will definitely not be governed by
the Federal Rules of Evidence, it’s worth looking at them if only to see what
guidance they provide. They are, after all, the product of many years of common
law and statutory revision and exist “to the end of ascertaining the truth and
securing a just determination.” Likewise with typical jury instructions used in
federal court. So, let’s take a quick spin through the rules and standard
instructions and clear up a few things.
First of all, practically all of what was described as
“hearsay” in the House hearings is no such thing. Orders, commands and
instructions—such as many of the text messages among Ambassador Gordon Sondland
and other officials in the Ukraine saga—are often considered to be “verbal
acts” that have legal significance regardless of their truth or falsity and are
not hearsay at all. Most of the key emails and text messages would also be
admissible to prove the recipient’s understanding or the sender’s state of
mind. More broadly, many, if not all, of the communications between and among
the central players would independently be admissible under the co-conspirator
hearsay exception. Sen. Lindsey Graham, R-South Carolina, can come up with all
the ridiculous analogies he wants—by the way, when has anyone ever been
“convicted” of a parking ticket?—but the fact remains that virtually none of
the key statements that emerged in the House impeachment inquiry would likely
be excluded from a federal criminal trial as inadmissible hearsay.
Nor would it be significant in a real trial whether there
was “direct” evidence of the president’s intent. Every federal circuit that
issues pattern jury instructions makes it clear that circumstantial evidence is
just as good as direct evidence. Courts often remark that direct evidence of
intent is rarely available and intent is “generally proved with circumstantial
evidence.” And most prosecutors would have a field day on the issue of intent
based solely on the reconstructed memo of the president’s call with the
Ukrainian president.
Would the president’s lawyers be allowed to argue in a real
trial that his request for Ukraine to open an investigation into former Vice
President Joe Biden and his son was motivated by a desire to root out
corruption? Maybe in an opening statement. But they’d have to come up with some
evidence during the trial in order to get a “theory of the defense”
instruction. And such a defense would open the door to the prosecution showing
the absence of other anti-corruption efforts by the president and his
administration. There would also be a big fight over whether he could call the
former vice president or his son as witnesses, with many federal judges likely
hesitant to have a mini-trial over Burisma and Barack Obama-era foreign policy,
especially where the real issue is the president’s motivation in asking for the
investigation and his pre-existing factual basis, rather than the merits of the
Biden allegations.
Would Roberts give a missing witness instruction if John
Bolton, Mick Mulvaney and others failed to appear at our hypothetical trial
under the Federal Rules of Evidence? Possibly. While this instruction is
disfavored in many jurisdictions, the facts here would lend themselves to its
application. A missing witness instruction is sometimes available where the
absent witness “would have been able to provide relevant, noncumulative
testimony on an issue in the case” and “the witness was peculiarly in the other
party’s power to produce.” This rule has particular application where the missing
witness “has such a relationship with one party as to effectively make her
unavailable to the opposing party.” With the Senate in Republican hands and a
clear record that the president has blocked key witnesses from testifying, many
judges would likely exercise their discretion to allow an inference that the
missing witness’s testimony would have been unfavorable to the president. In
any event, evidence about the president’s blocking those witnesses from
testifying—along with disregarding various congressional subpoenas—would surely
be admissible in a criminal trial for obstruction of Congress.
Is the Senate trial going to look anything like a federal
criminal trial? Of course not. But maybe we can hope that the senators,
especially the lawyers among them, will think a bit about their actual
experience in court before making claims about “hearsay,” “evidence” and other
facets of trials where there are actually rules. After all, 10 senators in the
116th Congress are former prosecutors, 47 list the law as their professional
occupation, and 53 hold law degrees.
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