In August, Scott Greenfield (Simple Justice) posted an item ("Where's the Proof?") looking askance at the increasing number of law schools that are apparently treating the law of Evidence as an elective, rather than a mandatory subject. (Antonin Pribetic promptly followed up with a Canadian perspective on the subject on The Trial Warrior Blog.) Scott's post took aim at the notion that future attorneys who won't be spending their time in a criminal or civil courtroom have no real "need" to learn Evidence as a discipline, that it is somehow not relevant to their expected practice. He begged to differ:
The teaching of evidence in law school is not in anticipation of someone being a litigator. Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that's not where it ends. Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law. Yes, M&A. Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence. Why? Because every aspect of law entails a potential of dispute leading to litigation. Any lawyer who doesn't comprehend evidence cannot competently perform his function.
If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer. If you don't get them, you can't think. You can't reason. You can't understand things the way a lawyer must.
Evidence is that important, to the way that lawyers think and to what they think about. It should if anything be even more important to the way that courts and other judicial bodies go about making decisions that affect or bind or burden those who come before them. In light of that, I was taken aback this week by the case of Kaiser Foundation Hospitals v. Wilson [PDF], in which the California Court of Appeal was prepared with surprising ease to find that the Legislature intended to toss aside one of the nre venerable precepts of the law of evidence: the general prohibition on Hearsay.
Hearsay, you will recall, is evidence in the form of an out of court statement submitted for the truth of its content. For instance, if Tom takes the stand and testifies that "I heard Dick say that Harry ran that red light," that testimony is hearsay if you are offering it to prove that Harry did in fact run that red light. Subject to a bundle of exceptions, hearsay evidence is generally inadmissible—that is, it is not to be heard or considered by the trier of fact—and for fairly obvious reasons: it is at least two steps removed from direct observation of the facts (not "I saw x" but "I heard someone say that they saw x") and, like a message passed from ear to ear in a game of "Telephone," becomes unreliable and subject to easy manipulation pretty quickly.
In the Kaiser v. Wilson case, the Court of Appeal took a look at Code of Civil Procedure section 527.8, which authorizes employers to obtain restraining orders and injunctions against those who are shown to p0se a threat of violence toward their employees. Kaiser Foundation Hospitals believed Jeff Wilson to be such a person: according to Kaiser, Wilson threatened violence against at least two specific Kaiser employees after his wife's employment with Kaiser was terminated. Kaiser applied to the Superior Court for injunctions prohibiting Wilson from violence or threats of violence against those employees, and the court granted the petition. Wilson appealed, arguing that nearly all of the evidence considered by the Superior Court was hearsay that should not have been admitted or considered in support of the injunction.
The Court of Appeal concurs with Wilson's first premise, that the evidence offered by Kaiser was almost entirely hearsay. However, the court looks at the language of the controlling statute and concludes that in these particular cases the Legislature intended to toss aside the usual prohibitions on hearsay evidence.
Code of Civil Procedure section 527.8(f) requires a hearing before an injunction can issue, and requires "clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence" as a prerequisite to the judge's decision to grant the injunction request. That same subsection also provides:
At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry.
The appellate court's analysis of the statutory language proceeds from the somewhat unexpected premise that there is "no relevant legal authority regarding the extent to which the rules of evidence do or do not apply" to hearings under this statute. The court is curiously mum as to why it would not presume that the rules of evidence do apply to these cases as they would in most any other Superior Court hearing, especially one in which the standard of proof is defined as "clear and convincing evidence." In the absence of that presumption, the Court of Appeal opines that the reference to "any testimony that is relevant" should be taken to "suggest that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an injunction to prevent workplace violence...." (Court's emphasis.) The court takes note that hearsay is inadmissible "[e]xcept as provided by law," but deems the injunction statute's silence on the subject to create such an exception.
The decision displays a touching confidence in the abilities of trial court judges, who "are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented." In fact, the court notes that the trial judge in this particular case remarked that the weight he would give the hearsay testimony—the overwhelming majority of the evidence presented—was "not going to be a lot." All of which begs the question, if the hearsay evidence is not going to be given much weight to begin with, how can it be viewed as the sort of "clear and convincing" evidence that is required to support the injunction? Is it unreasonable, before as court imposes significant limitations on a defendant's activities or speech, to require the employer to produce direct evidence of a threat against a particular employee—for instance, the employee's own testimony concerning how the threat was conveyed or perceived—rather than secondhand testimony that someone else "heard" or "was told" of a threat?
I hold no brief in favor of violence, in or out of the work place, but my sense is that the courts in this case have allowed one laudable policy goal, protection from threats and violence, to trump a policy that is at least as laudable and necessary: the policy that evidence should not be considered when, as in the case of hearsay, it is by definition frequently unreliable and always disconnected from direct perception and personal knowledge of the facts it purports to establish.
The rules of evidence have developed over time to provide a degree of confidence in courts' factual findings and for the protection even of bad actors such as Wilson is claimed to be. It troubles me that an appellate court, particularly in the absence of an unequivocal statement of legislative intent, should be so willing to sweep them aside in the name of good intentions.
A gratuitous and irrelevant postscript:
This reminds me of an exchange heard in a Los Angeles courtroom many years ago.
ATTORNEY A: Objection. Hearsay.
ATTORNEY B: Yes, your Honor, but it's really good hearsay....
Illustration: Gossips in the Altstadt, Sindelfingen, Germany, via Wikimedia Commons.