Hearsay

[Joshua Katz]

It's been a while since I read RONR straight through, and I had forgotten about the passage Mr. Martin quoted on a different thread (I didn't reply there so as to prevent confusing the OP). It really is, in my view, rather astonishing though:

“To get at the truth under the conditions of such a trial, hearsay evidence has to be admissible, and judgment as to the best interests of the society may have to be based on it. Witnesses are not sworn. The persons with first-hand knowledge may be nonmembers, who probably will decline to testify, and may be willing only to reveal the facts privately to a single member on condition that their names in no way be connected with the case. Even members may be reluctant to give formal testimony against the accused. A member can be required to testify at a trial on pain of expulsion, but it is very seldom advisable to force such an issue.” (RONR, 11th ed., pg. 655)

Of course, yes, those conditions may come to pass, just as they may come to pass in the legal context. It's not clear to me why they outweigh the more common concern: hearsay is inherently unreliable precisely because the decision-makers cannot judge the honesty of the declarant, cannot observe the declarant and look for body language, etc., and because it cannot be confronted or cross-examined. The primary reason given for allowing hearsay is "to get at the truth," but that doesn't explain much, since the prohibition on hearsay in the law is not one of those contexts (except, potentially, in Crawford cases otherwise permitted under the FREs) where we are valuing fairness over accuracy; hearsay is prohibited for accuracy reasons. Nor does it help to say we admit it because the penalties are lower than in the legal context - the rule here allows hearsay to be introduced by either side, so it's not tilting things, just generally making the evidence less reliable. Finally, it doesn't help to say that organizations tend to be different from legal contexts because people largely know each other, at least by reputation - that doesn't help when, as is discussed in the quote, the declarant is unknown. So my question is - why should we believe that, in the context of an organizational disciplinary proceeding, admitting hearsay gets at the truth more effectively than not doing so?

[Shmuel Gerber]

53 minutes ago, Joshua Katz said:

So my question is - why should we believe that, in the context of an organizational disciplinary proceeding, admitting hearsay gets at the truth more effectively than not doing so?

The passage you quoted gives the answer: because the witnesses will probably decline to testify, and there is no way to compel them to. So the alternatives are to decide the case without obtaining the relevant facts, or to allow the investigators to testify as to what (purportedly) knowledgeable persons have told them.

Let me ask you this: Do you ever read a newspaper to find out what is happening in the world? How much of what is printed there is anything other than hearsay? You probably take the information for what it's worth (i.e., with a grain of salt), and the assembly will do the same with hearsay evidence in a disciplinary trial.

[Atul Kapur]

On 3/17/2019 at 2:59 PM, Joshua Katz said:

Nor does it help to say we admit it because the penalties are lower than in the legal context - the rule here allows hearsay to be introduced by either side, so it's not tilting things, just generally making the evidence less reliable.

Not to gild the lily, because I think Mr. Gerber's answer is sufficient, but I challenge the logic of this statement. It is absolutely because the penalties are so less burdensome (loss of membership vs loss of freedom) that a less reliable level of evidence is acceptable. It's the same reason we don't require convincing beyond a reasonable doubt: a lower standard is acceptable because the penalties are not as severe. Tilting the playing field is stil not acceptable, but as you point out, that's not being done here.

[Disclaimer: I'm not a lawyer, and I didn't sleep in a Holiday Inn Express last night either]

[Joshua Katz]

5 hours ago, Atul Kapur said:

It is absolutely because the penalties are so less burdensome (loss of membership vs loss of freedom) that a less reliable level of evidence is acceptable. It's the same reason we don't require convincing beyond a reasonable doubt: a lower standard is acceptable because the penalties are not as severe.

Hearsay rules apply in civil as well as criminal trials, where there is no risk of loss of freedom and the standard of proof is preponderance of the evidence.

The thing is, I only think the potential risk to the defendant matters if the rule were, in fact, tilting the playing field. If, for instance, a rule of evidence applies asymmetrically, and is there to protect one side even at the expense of loss of accuracy (Crawford is an example), then the justification might well turn on the risk the defendant faces. But the rule here is symmetric, and can be used just as easily to evade penalties as to impose them, so why is the potential penalty relevant to whether or not we should have the rule? 

[Dan Honemann]

I suspect that if Mr. Gerber's response doesn't satisfy, nothing will.

[J. J.]

On 3/17/2019 at 4:59 PM, Joshua Katz said:

 So my question is - why should we believe that, in the context of an organizational disciplinary proceeding, admitting hearsay gets at the truth more effectively than not doing so?

You could say the same thing about direct testimony.  The testimony has to be believed by the person/people making the decision.  Does the witness have a bias?  Is the witness accurate?  That will be taken with a grain of salt as well.

[Greg Goodwiller, PRP]

I am on the team that is drafting a revision to the disciplinary rules in the constitution of the Presbyterian Church (which is a RONR organization). Our rules are more complex than RONR's, but I have repeatedly taken the team to RONR regarding things like standard of guilt ("morally convinced" - pg. 668, ln. 17), and also this one on hearsay evidence, which we have always allowed (to the chagrin of attorneys in the room representing those accused and sitting on our courts) but without any justification of why. The team was about to stop allowing hearsay until I read them this passage. Some if its language is now in our draft.

It comes up most often in cases of allegations of clergy sexual misconduct, when the alleged victims don't want to show up at trials and face either the accused or the public, and while members of the denomination, at least, are "required" to be present if cited, there is really no recourse if they don't, since they are almost always under the jurisdiction of a different council of the church.

So in an ordinary society, I absolutely concur with allowing hearsay, when necessary, and allowing those who must decide the matter to give such evidence the attention and weight it deserves.

[Joshua Katz]

9 hours ago, Daniel H. Honemann said:

I suspect that if Mr. Gerber's response doesn't satisfy, nothing will.

That's why I only responded to Dr. Kapur. Mr. Gerber's response made sense to me.

8 hours ago, J. J. said:

The testimony has to be believed by the person/people making the decision.

Exactly. The problem with hearsay is that the person making the decision lacks many of the clues we use to judge whether or not to believe a person - including, in some cases envisioned by RONR, who the declarant is. Instead, they hear from a witness whose reliability can be judged, but is useless for determining whether or not the statement is true.

 

7 hours ago, Greg Goodwiller said:

It comes up most often in cases of allegations of clergy sexual misconduct, when the alleged victims don't want to show up at trials and face either the accused or the public, and while members of the denomination, at least, are "required" to be present if cited, there is really no recourse if they don't, since they are almost always under the jurisdiction of a different council of the church.

 

This is roughly analogous to the reasoning in Maryland v. Craig, so at least a majority of the SC finds found it compelling.

 

Edited March 19, 2019 at 10:38 PM by Joshua Katz
Crawford may have reversed this part of Craig.

[smb]

While I concur that Mr. Gerber's comment pretty much sums it up, allow me to add one additional factor.  While  hearsay is generally not permitted in judicial proceedings, depending upon the jurisdiction there are dozens of exceptions to the general rule where hearsay IS permitted.  It would be expecting far too much for reg'lar folk untrained in those hair-splittings to try to figure out what those exceptions are, whether they apply, and whether there is an exception to the exceptions.

I would also note that RoNR is not alone; disciplinary procedures in many other non-judicial contexts also permit hearsay.  E.g., labor union hearings.  Best to keep our lives simple and just remember 1) hearsay, while permitted, must still be evaluated for credibility; 2) it is best if the hearsay amplifies other evidence, and is not the only evidence

[J. J.]

On 3/31/2019 at 11:28 PM, smb said:

While I concur that Mr. Gerber's comment pretty much sums it up, allow me to add one additional factor.  While  hearsay is generally not permitted in judicial proceedings, depending upon the jurisdiction there are dozens of exceptions to the general rule where hearsay IS permitted.  It would be expecting far too much for reg'lar folk untrained in those hair-splittings to try to figure out what those exceptions are, whether they apply, and whether there is an exception to the exceptions.

I would also note that RoNR is not alone; disciplinary procedures in many other non-judicial contexts also permit hearsay.  E.g., labor union hearings.  Best to keep our lives simple and just remember 1) hearsay, while permitted, must still be evaluated for credibility; 2) it is best if the hearsay amplifies other evidence, and is not the only evidence

 

Agreeing with you, I would note that some, if not most, of those types of hearing are governed by RONR.