Tuesday, November 19, 2019

PROBATIVE VALUE OF THE IMPEACHMENT EVIDENCE: What is “hearsay"? What is “bribery"? What is “extortion"? What is “direct evidence"?

Most Americans are watching or reading about the impeachment hearings without either an understanding of what constitutes evidence that would be admissible in a court of law or how to evaluate the evidence. What most Americans know about evidence law they learned from television and movies, and that information is usually wrong.
Why should it matter whether or not those of us who follow the impeachment hearings know some evidence law and how to evaluate evidence? Ignorance of evidence law can lead to misjudgments of the probative value of the testimony. When most Americans listen to the witnesses without the guidance of evidence law, the process is like jurors trying to determine the facts in a trial without the court’s exclusion of inadmissible evidence and without jury instructions on the law and how to weigh the evidence. For example, it would be misleading if a member of Congress or a commentator mislabeled testimony as “hearsay” when it clearly was not hearsay.

Before going further, let’s not get sidetracked by focusing on the appropriateness of the impeachment hearings or on whether the President should be impeached. Rather, this article focuses on evidence law and the law governing how fact finders should review the evidence. 
As mentioned, in a trial, a judge determines what evidence is admissible under our evidence law so that jurors only consider reliable evidence and thus can reach a just and true verdict.  Our evidence law defines what is reliable and should be considered by jurors who decide the facts. The impeachment hearings are not a trial, and consequently, the evidence rules do not apply.  However, our evidence law should guide us in determining what is inadmissible evidence that should be disregarded and what is admissible evidence that would be considered in a trial.

What is and isn’t hearsay?

First, let’s consider what is and isn’t hearsay. Members of Congress and some commentators referred to Ambassador Bill Taylor’s testimony as “hearsay.” Specifically, Ambassador Taylor testified that Gordon Sondland, U.S. Ambassador to the European Union, told him that there would be a “stalemate” if the Ukraine President did not announce investigations, meaning U.S. military aid was conditioned on those investigations.  Commentators dismissed this and testimony by other witnesses to what Sondland said as second-hand hearsay.
Was Taylor's testimony to what Sondland said the President told him hearsay? No, it wasn’t hearsay under evidence law, and for good reason. Federal Rule of Evidence 801 (Definitions That Apply to This Article; Exclusions from Hearsay) states:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: . . .
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and: . . .
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
            The opposing party in the impeachment hearings obviously is the President, and it is irrefutable that Sondland was acting as an agent of the President and within the scope of the relationship at the time he told Taylor what the President said. This fits squarely within 801(d)(2)(D) by definition, and therefore, it is not hearsay. The Comment to the Rule states the rationale for this evidence rule:
The tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment (emphasis added) . . .

Without such an evidence rule defining an agent’s testimony as not hearsay, a mob boss could insulate himself by always communicating through his mob lawyer. Also, subsections (C) and (E) arguably apply to Taylor’s testimony as to what the President’s agent told him. Therefore, the President’s desires expressed by either his agent Sondland, Mulvaney, Giuliani or any other agent speaking on a matter within the scope of that relationship and while it existed would not be hearsay and would be admissible at trial. This  testimony should not be dismissed by commentators as merely hearsay. It is powerful probative evidence.

What is bribery?

Second, the terms “bribery” and “attempted bribery” and “extortion” have been used to describe the President’s conduct. And, it has been stated that the President has not committed a crime. (Robert Ray, “You Can’t Impeach If There Is No Crime”, Time Magazine, Nov. 18, 2019).
What is bribery? Did the President commit bribery? Pertinent sections of a typical criminal statute defining offering a bribe provide:

(1) A person is guilty of bribery if:

(a) With the intent to secure a particular result in a particular matter involving the exercise of the public servant's vote, opinion, judgment, exercise of discretion, or other action in his or her official capacity, he or she offers, confers, or agrees to confer any pecuniary benefit upon such public servant; . . .

(2) It is no defense to a prosecution under this section that the public servant sought to be influenced was not qualified to act in the desired way, whether because he or she had not yet assumed office, lacked jurisdiction, or for any other reason.
(3) Bribery is a class B felony. (Revised Code of Washington 9A.68.010 Bribery).
Given the evidence produced in the hearings, it can be argued that the statutorily listed elements of offering a bribe have been satisfied. The President of the United States offered $400 million in military aid (“pecuniary benefit”) to the President of the Ukraine (a “public servant”) to secure a presidential public announcement of an investigation into the Bidens (“an action in his official capacity”). Acceptance of the bribe is not an element of the crime of offering a bribe. Further, the victim’s carrying out the requested action is not an element of the crime. Offering the pecuniary benefit for the public servant’s action is enough to establish the person committed bribery. In other words, bribery does not require that there be a “this for that” (Latin – quid pro quo) between the briber and the victim of the bribery. “Attempted bribery” would be a mislabeling of offering a bribe, and such a label would likely be based on the mistaken belief that the victim did not do what the briber sought (as was discussed, this is not required). Finally, the law of bribery does not specify that there be a particular source of the pecuniary benefit being offered. The evidence indicates that the pecuniary benefit came from the American public, not the President.
One additional element of the crime of bribery is not spelled out in the statute. Courts have found that an implied element of bribery is that the briber must act with the corrupt intent to secure a particular result in a particular matter involving the exercise of the public servant's action in his official capacity. State v. O'Neill, 103 Wn.2d 853, 700 P.2d 711 (1985). “Corrupt” is defined as “having or showing a willingness to act dishonestly in return for money or personal gain.” What is the evidence that the President had a corrupt intent? No one disputes that Congress appropriated the $400 million for military aid to the Ukraine. No one disputes that the President of the United States said the military aid was conditioned on the President of the Ukraine publicly announcing an investigation into the Bidens. That public announcement would have been to the President’s political advantage. Congress did not appropriate the money for an announcement of an investigation of the Bidens. It was appropriated to protect the Ukraine and in turn protect the United States. What could be more dishonest—corrupt—than to threaten to withhold military assistance funded by Congress and intended to be spent to protect the Ukraine and the United States for personal gain?

What is extortion?

A typical criminal code defines “extortion” as follows: “Extortion” means knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors. Revised Code of Washington 9A.56.110. Extortion has been divided into different degrees of the crime based on the type of threat made. For example, extortion in the first degree has been defined as follows:

(1) A person is guilty of extortion in the first degree if he or she commits extortion by means of a threat as defined in RCW 9A.04.110(28) (a), (b), or (c).
(2) Extortion in the first degree is a class B felony.

First-degree threats under this statute are specified as follows under RCW 9A.04.110(28): "Threat" means to communicate, directly or indirectly the intent:

(a) To cause bodily injury in the future to the person threatened or to any other person; or
(b) To cause physical damage to the property of a person other than the actor; or
(c) To subject the person threatened or any other person to physical confinement or restraint; . . .

            Extortion in the second degree, which is a class C felony, is committed when the extortioner makes one or more of statutorily listed threats. Under 9A.04.110(28), the second-degree threats include the following relevant one:

(h) To . . . wrongfully withhold official action, or cause such action or withholding; . . .

            While none of the threats listed for extortion in the first-degree statute fit the President’s threat to withhold the military aid if the President of the Ukraine did not publicly announce an investigation of the Bidens, the evidence proves a threat to “wrongfully withhold official action, or cause such action or withholding.” This would meet the definition of a listed threat for extortion in the second degree.

            What is direct evidence?

Third, commentators on the impeachment hearings have questioned “second-hand” accounts. For example, it has been asserted that the Taylor’s testimony about what Sondland said the President told him constituted merely second-hand circumstantial evidence, and therefore it should be disregarded. They contend that only direct evidence should be considered.
            What is “direct evidence”? What is “circumstantial evidence”? A trial judge in a criminal case normally will instruct the jury on the meaning of these terms and how to consider such evidence. A typical pattern jury instruction reads as follows:

The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence” refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.

The law does not distinguish between direct and circumstantial evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.

Let’s apply this jury instruction to Ambassador Taylor’s testimony about what Sondland said the President said, which we have already explained was not hearsay. For example, Taylor testified, “During that phone call, Ambassador Sondland told me that President Trump had told him that he wants President Zelensky to state publicly that Ukraine will investigate Burisma and alleged Ukrainian interference in the 2016 U.S. election.”
Taylor “directly perceived” Sondland, who was acting as the President’s agent, describe the Ukraine’s President’s official action that our President wanted exchanged for the pecuniary benefit that would be bestowed by the President of the United States. This wasn’t just “something at issue” it was the heart of the issue. Consequently, this wasn’t merely a second-hand account. Taylor provides direct evidence of action sought by the U.S. President’s offer of a bribe.  

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