May 1, 2018
ASU law professor explains the hierarchy of evidence and how contemporaneous notes would — or wouldn't — hold up in court
Former FBI Director James Comey has said he thought President Donald Trump might lie about the nature of their meetings, so he kept meticulous notes. Those notes — the infamous memos — are now the basis of a best-selling book and high-profile material in Special Counsel Robert Mueller’s federal investigation.
While these memos have garnered massive media attention, how reliable are they? Indeed, how much stock should be put in contemporaneous notes produced to document a conversation, meeting or other event?
To answer this, ASU Now reached out to Bob Dauber, a clinical professor of law and the Charles Brewer Professor of Trial Advocacy at the Sandra Day O'Connor College of Law at ASU, who teaches courses relating to civil procedure, evidence and dispute-resolution process.
Question: A lot of attention has been paid to James Comey’s memos regarding his conversations with President Donald Trump. Is note-taking considered a reliable source in a court of law for an incident that might have occurred?
Answer: In court, the information that is presented to a trier-of-fact is regulated by rules of evidence, which are often (but not always) based on presumptions of reliability. One of the more well-known rules is a general ban on “hearsay,” which prohibits the use of out-of-court statements as evidence when they are offered to prove the truth of the matter asserted. The hearsay ban, however, has many exceptions.
As a general proposition, Comey’s notes are out-of-court statements; therefore, they would seem to fall under the hearsay ban. However, they might be admissible in a court of law, depending on how they are being used. For example, one of the exceptions to the hearsay ban is a rule that allows prior consistent statements to be used as evidence if the declarant has testified, is subject to cross-examination, and the statement is used to rebut “an express or implied charge that the declarant recently fabricated it.” If, for example, Comey were to testify in a federal court about President Trump’s alleged direction to curtail an investigation, and if the opposing party took the position that Comey made up that conversation after he was fired, he would be able to offer his prior consistent notes written before he was fired to rebut the charge that he fabricated the allegation.
Q: President Trump has already given a lot of weight to these notes by claiming they are classified documents, thus implying they are damaging and truthful. Does his proclamation hold any weight in court?
A: I doubt a court would agree that any decision to “classify” a document implies that the document is either truthful or damaging.
Q: Is there a hierarchy of evidence in court?
A: Once evidence is admitted, it is up to the trier-of-fact to determine how much weight the evidence deserves. That said, courts generally prefer evidence in the form of live testimony over out-of-court statements (hence the general ban on hearsay) because the opposing party has an opportunity to cross-examine the witness and the jury has the opportunity to judge the credibility of the witness based on the witness’s demeanor. A sweating, shifty-eyed witness might not be believed as readily as a congenial witness in clerical garb, for example.
With respect to physical evidence (including documents), there are certain presumptions of reliability, based on the source of the document. Business records and government records, for example, are more easily admitted into evidence than personal notes because they presumably were created for the purposes of operating the organization, and therefore deserve a presumption of reliability.
Q: Why do we rely so much on notes when it’s possible the notetaker could have the facts wrong or could have skewed them in his or her favor?
A: James Comey is a trial lawyer by training, and it is very common for lawyers to make contemporaneous notes or “memos to the file” of conversations they have had with parties or witnesses. The reason is to make sure the conversation is documented at a time when the memory is the freshest. What I write about a conversation immediately after the conversation is likely to be much more accurate than my memory of the conversation months or years later.
For this reason, I was not surprised that Comey had written memos of his meetings during the period in question. Whether those memos should be given much weight depends more on people’s perception of the credibility of the parties than on rules of evidence. If you think Comey is a liar, it is easy to conclude that the notes are not accurate. If you think President Trump is a liar, it’s much easier to view the notes as being accurate, contemporaneous records of what was said.
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