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Gowdy

Congressman Trey Gowdy of South Carolina and Benghazi-hearing fame got it wrong shortly before noon our time today when he said during the Intelligence Committee hearing that a newspaper article would “never ever” be admitted as evidence in a trial.

In fact, newspaper articles are routinely admitted as evidence. I know this because over the course of my newspaper career, I was subpoenaed to court several times to certify that an article about to be admitted into evidence was an accurate representation of the article as I had written it.

In most cases, the newspaper lawyer was able to get the prosecutor or defense lawyer to accept an affidavit instead of requiring my testimony. In some cases, though, I had to go to court. There, I watched as one lawyer or the other would ask some jumpy person on the witness stand to read my the piece and comment on whether it accurately represented whatever the article purported to be about.

Just yesterday I was contacted by a prosecution investigator who was trying to establish whether I had written a 1992 article. He’s not looking into it out of simple curiosity. He’s looking into it because the article could become evidence.

Gowdy’s misstatement wasn’t truly important, except to the extent that he likely knows he was wrong. Before he became a hero of the Tea Party, he was a federal prosecutor, so there is a fair chance he has seen newspaper articles being admitted into evidence. He was trying to make a broader point, which is that the press can’t be trusted, especially the best newspapers.But unlike the others testifying this morning about the Trump campaign and possible Russian tampering, unlike FBI Director James Comey, Gowdy didn’t feel any particular pressure to be careful and accurate.

{ 23 comments… add one }
  • bill leone March 20, 2017, 1:46 pm

    Senator Gowdy, of Benghazi fame, not content to’ve spent millions of dollars to blame Secretary of State Clinton for the murder of Americans by a terrorist mob, once again justifies his means by an attempt to discredit the MSM; a goal shared by The Pimp President (under the guidance of Darth Bannon, a verified proto-Nazi), Tea Party Conservatives, Alex Jones (other White Nationalists & Racists), Russian Cyber-Intelligence (under the direction of Vlad Putin), as well as as,
    according to a recent article in the (“MSM”), The New Yorker Magazine, a small number of Progressive Leftists, who have resigned themselves to becoming “useful idiots,” for Russian propaganda.

    Coming Soon: a Senate Subcommittee Investigation to prove the existence of “The Deep State,”
    & other delusional, White Nationalist conspiracy theories.

  • bill leone March 20, 2017, 1:49 pm
  • Jean March 20, 2017, 2:21 pm

    An essential element of the Hearsay Rule includes the attempted introduction of the statement for “the truth of the matter asserted”.
    All evidence is not introduced for the truth of the matter asserted, but may be introduced simply for the statement, itself. Favorite example: “I’m dead” screamed by motorist before tractor-trailer T-boned his Mini Cooper.
    Not all MSM articles are factually reliable. Perhaps why the Court wanted you to verify.

  • Judy Karas March 20, 2017, 4:47 pm

    I started watching the House Intelligence Committee hearing with Comey this a.m. before starting out for work. Rep. Rooney (Republican, Florida) tried to distract the committee from the real questioning needed to be done–he dwelled on the leaks by people in the gvt. who gave the info to the press/media. I will try to watch more of the hearing online later on. I did call J. Panetta’s Washington, D.C. office before leaving home–and the office aide said he was also watching the hearing. I gave him my comments about Rooney, etc., and asked for his. He was noncommittal. I wonder how much Jimmy Panetta is influenced by his father Leon and Leon’s time spent with the CIA and Dept. of Defense. We need to make sure that Panetta knows that there’s a strong progressive community in the county; Farr was well aware of the peace/social justice community and his votes often reflected that….though I wish he had been much stronger on foreign policy issues (case in point Israel-Palestine).

  • Joanna Greenshields March 20, 2017, 6:01 pm

    Despite having many tasks needing my attention today, I have been transfixed watching the hearings on MSNBC. My prediction on another MBP thread was Trump wouldn’t last 18 months. I remain ever hopeful that Trump moves on sooner than later.

  • Helga Fellay March 20, 2017, 7:32 pm

    Re: “a newspaper article would “never ever” be admitted as evidence in a trial.” is really a silly argument. I imagine it could be admitted as evidence that something was apparently known at the date of the article’s publication (to establish a date), but a published article by itself could never be “evidence.” At best, the journalist who authored the article could be subpoenaed to give testimony and be cross-examined, but written articles by themselves are not “evidence.” If I were a juror in a trial and an article published by the MSM would be presented as “evidence” of the accused’s guilt, that alone would be enough to make me vote for acquittal.

  • Royal Calkins March 20, 2017, 7:43 pm

    Helga: What I wrote is correct. What you are saying is not. If you’re game, we could turn this into a wager.

    • Bob Coble March 20, 2017, 8:12 pm

      Oh, Royal — Helga is not about to actually make a bet with you. She probably knew she was wrong as she wrote it.

      • Eric Petersen March 20, 2017, 9:24 pm

        Jurors are free to pick and choose what evidence they see, and can ignore well-presented evidence just as the jurors of the first Bundy trial in Portland did.

      • Helga Fellay March 21, 2017, 9:25 am

        Bob, you are correct that I would not bet with any fool or anyone else for that matter. But you are wrong about the rest. I have never in my life written anything I believed to be wrong. I know that Royal has not graduated from any school of law. If you have, please quote to me the Rules of Evidence where it says that a printed newspaper article, in and by itself, can be introduced as evidence in a court of law (other than to prove that it was in fact printed – such as in a slander and defamation trial). In other words, no matter how many MSM publications allege that Russia interfered in the US election, these articles can not be presented in a court of law as evidence that this must be true because EVERYBODY says it is. Because it isn’t, no matter how much some people want it to be.

  • bill leone March 21, 2017, 9:45 am

    For the purpose of disproving yet another misleading statement from a Right-Wing, Tea Party Nut (Gowdy), to prevent Helga from loosing a bet with Royal, & to substantiate Royal’s point, I present This Internet article as Evident for the Defense (or perhaps the Prosecution):

    http://federalevidence.com/node/886

  • bill leone March 21, 2017, 10:05 am

    A more detailed examination of the subject under discussion:

    http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1770&context=dlj

    • Helga Fellay March 21, 2017, 10:50 am

      so what does this prove? That it is within the discretion of the trial judge to make an EXCEPTION to the hearsay rule, but only under certain specific circumstances, and allow hearsay (a newspaper article) to be admitted? This does not change the fact that as a strict RULE, hearsay in not admissible evidence. And that judge who makes that exception, regardless of how well he justifies himself, leaves himself wide open to challenge in an appeals court.

  • bill leone March 21, 2017, 11:51 am

    Maybe we are not reading the same ruling.

    From the Federal Rules of Evidence (2015)

    Rule 902. Evidence That is Self-Authenticating
    The following items of evidence are self-authenticating: they require no extrinsic evidence of authenticity in order to be admitted.
    (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

    Gowdy’s statement was: a newspaper article would never, ever be admitted as evidence in a trial.
    Royal’s statement was: newspaper articles are routinely admitted as evidence.

    Perhaps Royal did not go to law school. Neither did I, but I Can read.

    • Helga Fellay March 21, 2017, 3:28 pm

      and I can read as well, plus, on top of that, I can understand what I have read, I can analyze it, and draw logical conclusions from that. That’s what sets me apart. “newspaper articles are routinely admitted as evidence” – EVIDENCE OF WHAT? that they were written? that they were printed? that some schlepp wrote the article? But not as evidence that whatever that schlepp wrote must be the truth because he wrote it and it was published. Trust me on that. Even though every single MSM outlet insists that Russia influenced the US election, and they all – each and every one of them – got published, is not evidence that therefore it must be true, no matter how many of these articles are submitted as “evidence.”

  • Ann Hill March 22, 2017, 12:59 am

    Slander is defamation by the spoken word. Libel is defamation by the written word. Newspaper articles are often the key pieces of evidence in libel trials. And every word in the allegedly libelous newspaper article is admitted as evidence. How else would a judge or jury know what the basis of the libel claim is? Not just the words or phrases a plaintiff claims are libelous are admitted, but the entire article must be admitted so the trier of fact sees those phrases or words in context. This is not a hearsay situation because the rules of evidence consider these words “operative facts” – that doesn’t mean they are true, but it means they are the key evidence whether the newspaper reporter or columnist committed libel. Attend any trial and you will notice that much of the evidence admitted by the court is admitted under one of the many hearsay exceptions. Exceptions include past recollection recorded, ancient documents (“ancient” = more than 20 years old), business records, public records, marriage records, death records, declarations against interest, admissions, adoptive admissions – the list goes on and on. Check any California Evidence Code or the Federal Rules of Evidence. Newspaper articles often contain hearsay exceptions which are admissible as evidence.

    Newspaper articles also contain statements which can be used to impeach a witness – these constitute another hearsay exception, to wit, prior inconsistent statement. And the prior inconsistent statement is used not only to impeach the witness, but also is admitted by the court as actual evidence, carrying the same weight, or even greater weight, as statements made under oath. Often what a witness said before trial is considered more honest and more trustworthy than what a witness says under oath at trial. If you have ever been a juror you are informed that these statements have been admitted as evidence. Of course, you as the juror then decide what weight, if any, to give it. But it is clearly admissible.

    If, for example, Flynn had told a newspaper reporter that he had met many times during the campaign with Russian intel officers, and this had been written in an article, but then at trial for obstruction of justice or lying to the FBI, he could be impeached by his prior inconsistent statements contained in the newspaper article. And the newspaper article itself is admissible as evidence, because of the prior consistent statement exception to the hearsay rule.

    If you don’t understand this or don’t accept this, please do not serve on a jury, because you could not be true to the juror’s oath to follow the law, including the rules of evidence.

    Royal is right. Helga is wrong.

    Turning to the hearsay rule, there are more than twenty exceptions to this rule both in state and federal courts. These exceptions allow statements, oral or written. To be admitted, even though they are hearsay, because they are deemed reliable and trustworthy. Even Justice Scalia recognized most hearsay exceptions because over the centuries our communities and our legal system have come to the rational conclusion that certain out of court statements offered in court for the truth of the matter asserted (I.e. Hearsay) are as reliable, and sometimes more reliable than, statements made under oath in court.

  • Helga Fellay March 22, 2017, 9:35 am

    Ann, thank you for weighing in. Perhaps you missed my statement made above – “such as in a slander and defamation trial).” I did say, or at least I thought I had communicated, that the newspaper article itself is admissible evidence in a slander and defamation trial. I am still saying that a newspaper article that states that the Russians interfered in the election of Donald Trump can not be admitted as evidence that the Russians in fact must have interfered in the US election, just because a newspaper article says so. It is only evidence that someone said so, not that what that someone said is in fact true. I am not wrong, no matter how many law degrees you have. I am aware that the Establishment, using its corporate MSM like a weapon (or evidence), is trying to use this cheap ploy in its coup against the president, and who knows, it may end up working, but it’s still wrong, both legally and morally.

    • Helga Fellay March 22, 2017, 10:22 am

      I forgot to add an example to which we should all be able to relate: To please Israel, Cheney/Bush wanted to destroy Iraq (to be followed by Libya, Syria and Iran, but that’s another story) and, to justify this totally unwarranted destruction, lied to the American public when they said that they had proof that “Saddam has weapons of mass destruction.” This was stated as a fact by every newspaper and media outlet in the nation and, because it was accepted as a proven fact, the invasion and destruction of the country proceeded and continues on to this day and will continue to go on. As we now know, this pretext was based on a lie, repeated by every newspaper until it became a proven fact in the minds of the people, including congress. It is unfortunate that Americans seem incapable of learning anything from mistakes of the past. The same cabal which wanted to destroy Iraq is now overly anxious to start a war against Russia. With Hillary Clinton they had found an enthusiastic champion of their cause and preparations proceeded. Except that Trump won the election and he wants detente with Russia, he prefers to do business and trade with Russia, rather than start a nuclear world war which would also involve China and as yet unknown other nations. This is the reason that both Trump and Russia are being defamed with totally unsubstantiated accusations of wrongdoings, trying to use the MSM as “proof” as there isn’t one scintilla of real, actual evidence for their accusations. Apparently, a lot of people, including Partisan readers, are either unable to connect the dots or else they would rather start a nuclear world war than admit that maybe, just maybe, they could be on the wrong side of this issue.

      • PT Caffey March 22, 2017, 7:56 pm

        As I understand your point, the press repeated lies churned out by the government during the Bush administration. This, you say, was a serious mistake. The corrective, now, is for the press to accept whatever the Trump administration is saying about Russia.

  • Ann Hill March 22, 2017, 6:50 pm

    I was pointing out your misuse of the word “slander” when referring to defamation by the printed word on a newspaper article. Apparently you still don’t see the difference between slander and libel. No matter. Clearly, you are more interested in repeating your political rants.

    • Helga Fellay March 23, 2017, 11:47 am

      Ann, I get the impression you misunderstand me deliberately. I have always known the difference between the slander and libel. And you are wrong when you say that a newspaper article can only be used as direct evidence in a case of libel. Let me try to explain it to you in terms that maybe you can understand.
      A hypothetical case: Mrs. Smith and Mrs. Miller have been life-long enemies who have made life as miserable for each other as possible. Finally Mrs. Smith, to get even for Mrs. Miller’s latest insults, decides to really get even by calling Child Protective Services on Mrs. Miller, accusing Mrs. Miller of doing horrible things to her children. As a result, the children are temporarily removed from Mrs. Miller’s home. Mrs. Miller, understandably outraged, goes to Mrs. Smith and starts beating her black and blue. Police are called by neighbors hearing the screams, followed by the Daily Rag’s reporter. While Mrs. Miller is arrested for assault and battery, our eager reporter interviews Mrs. Smith about what led to this altercation. Mrs. Smith eagerly accuses Mrs. Miller of all the horrible things she has done and what a dreadful and dangerous person she is. It’s a slow news day, and our reporter’s account of the incident, arrest, and the interview appears in next day’s paper, with some of Mrs. Smith’ statements in quotation marks.
      After Child Protective Services’ investigation, the case is dismissed for complete lack of evidence and the children are returned to Mrs. Miller. A justifiably enraged Mrs. Miller, having read the newspaper article, sues Mrs. Smith for slander. Her only evidence is the testimony of the reporter, and the actual newspaper article, which shows that slander was committed and, because everybody in town has read the article, thus proving that Mrs. Miller and her personal and professional reputation have been irreparably harmed by Mrs. Smith’ slanderous and unfounded comments.
      This is a case about slander in which a newspaper article is admissible as direct evidence that slander has caused irreparable harm to another person. Got it?

      • PT Caffey March 23, 2017, 12:40 pm

        Perhaps a worldwide nuclear war is preferable to arguing with this person. It’s a tough choice. Got it?

  • bill leone March 22, 2017, 9:48 pm

    Thank you Ms Hill. I believe this case is Closed.

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