Trump's Tape: Reviewing Statement by an Opposing Party and Statement Against Interest
Yesterday’s big news was CNN’s release of a 2021 audio recording of Donald Trump in which he discussed holding secret documents he did not declassify.
The two-minute recording may be an important piece of evidence in special counsel Jack Smith’s indictment of Trump over the mishandling of classified documents kept at his Mar-a-Lago residence in Florida. There recording appears to undercut Trump’s argument that he could retain presidential records and “automatically” declassify documents. Trump previously pleaded not guilty earlier this month to 37 counts related to that indictment.
However, in the CNN recording, Trump said “these are the papers” and referred to something he identified as “highly confidential.” Other voices could be heard on the recording, too, indicating that he was showing the highly confidential papers to others in the room.
During last night’s episode of “The Situation Room,” CNN panelists discussed whether the recording would be admissible in court.
Of course, the recording raises potential hearsay concerns. Hearsay is an out-of-court statement offered to prove the truth of whatever it asserts, which is then offered in evidence to prove the truth of the matter. The problem with hearsay is that when the person being quoted is not present, it becomes impossible to establish credibility. As a result, hearsay evidence is generally not admissible in court. However, there are certain exclusions and exceptions to the hearsay rule that permit hearsay statements to be admitted.
Here's the exchange from last night’s show:
Wolf Blitzer, CNN Anchor: … You know, Elliot, let me get your thoughts. Is there any chance that this recording, this audiotape, would not be admitted in this criminal case against the former president?
Elliot Williams, CNN Legal Analyst: It's an important question, Wolf, because there's always a chance that a piece of evidence may not make it into court for any number of reasons. And, look, it's a recording of things that happened outside of court, which under normal circumstances would be considered hearsay … there's a few different ways you can get this in. Number one, it's called admission by a party. The defendant himself is talking and right away you can get that in. Another way you could get in is you could call it a statement against interest. He is a person who is speaking against his legal interests because he's, in effect, admitting to being in possession of the very thing he's accused of having. So, you have a few different avenues for getting it in. I think Trump's folks should certainly try to attack it, but I think they have uphill battle to getting this done.
Let’s turn this back to bar preparation.
As you’re working your way through Evidence questions during your bar preparation, you might have noticed several multiple-choice questions that contain answer choices that include options for statements by an opposing party (a hearsay exclusion) as well as statements against the defendant’s interest (a hearsay exception). A sample stem and options may look like this:
Is the witness’s testimony admissible?
(A) Yes, as a statement against interest by the defendant.
(B) Yes, as a prior inconsistent statement of the defendant.
(C) Yes, as a statement by an opposing party.
(D) No, because the defendant was not given an opportunity to comment on the statement prior to the witness’s testimony.
It’s important to understand the key differences between statements by an opposing party (again, a hearsay exclusion) and statements against the defendant’s interest (again, a hearsay exception.)
A statement by an opposing party need not have been against the party’s interest when it made. For a statement against interest, the statement needs to have been against the party’s interest, as the name of the exception indicates.
A statement by an opposing party does not require the declarant to have personal knowledge of facts. For a statement against interest, the declarant requires personal knowledge of facts.
A statement by an opposing party does not require the declarant to be unavailable. For a statement against interest, the declarant requires to be unavailable.
A statement by an opposing party requires the declarant to be a party. For a statement against interest, the declarant does not require to be unavailable.
Finally, if a statement qualifies as both a statement by an opposing party and a statement against interest, the better answer choice in an MBE question would be the exclusion because an examination of an exclusion (like a statement by an opposing party) always takes place before an examination of an exception. You only examine whether there are any applicable exceptions if there are no applicable exclusions in an MBE question. (For essays, however, you might want to discuss applicable exceptions as an alternative argument to maximize points even if you conclude there is an applicable exclusion.)
