Mark Roman | November 26, 2019 | Newsletter Article
The Congressional impeachment inquiry has brought rare attention to some previously obscure legal terms. There’s probably never been a time when more attention has been paid to the phrase “quid pro quo” or the word “hearsay.”
Quid Pro Quo
Quid pro quo is the easier of the two to understand. Quid pro quo, loosely translated, means “something for something.” It is the foundation of all contracts: you get something, and in return, you give something. People enter into quid pro quo transactions every day. Even ordering a cup of coffee qualifies; you pay an agreed sum of money in exchange for your favorite cup of java. Most commercial relationships in our world arise from quid pro quo interactions.
Of course, there is nothing wrong with a quid pro quo in itself. The problem in the political world arises when a quid pro quo is given for some improper purpose. Bribes are the classic example: a politician accepts a payoff to give a lucrative government contract to an unqualified contractor. You don’t even need to understand a quid pro quo conceptually to know why that is wrong.
Hearsay, on the other hand, is extraordinarily tricky. Generally, hearsay statements are those made outside of court. They can be, but aren’t always, things heard second or third hand.
It makes sense to be wary of information which isn’t based on firsthand knowledge. Beyond that, however, things get horribly complicated. First, courts allow a laundry list of hearsay exceptions. There are so many of these that there’s not much left of the rule against hearsay in practice. Even experienced lawyers often struggle to understand all the hearsay exceptions and the criteria for applying them.
The Problem with Hearsay Exceptions
Probably the most familiar exception to the hearsay rule is the criminal confession. The law allows a police officer to testify that a defendant admitted to a crime because (at least in theory) no one would ever say such a thing unless it was true. Whether one agrees with that philosophically or not, it is just one of the many exceptions that weakens the hearsay rule in real life.
Second, many out of court statements aren’t considered hearsay at all. Sometimes a statement is not offered in evidence to prove the statement is true; there can be many other legitimate purposes to offer it.
For example, assume a person accused of causing a car crash is told beforehand by their auto mechanic that their tires are bald. The important thing – at least initially – is not whether the statement was true. Rather, the mechanic’s statement notifies the owner of the potential danger and puts the onus on them to investigate it. The statement prevents the owner from claiming they had no idea about any potential problem with their tires.
Third, the rule against hearsay doesn’t apply everywhere. While pure hearsay is not admissible in regular civil and criminal trials, it is often considered in other situations. There is no strict prohibition against hearsay in grand jury proceedings where the jury is deciding whether to charge a person with a crime. Administrative trials, such as those where a government agency is attempting to impose a fine, don’t strictly prohibit hearsay either. And finally, there is no rule against hearsay in impeachment proceedings, where the rules are made by Congress for each impeachment case it considers.
To conclude, hearsay is terribly complex and hard to fathom, even for people who devote considerable professional time to understanding it. There is good reason to be skeptical of people tossing the term around in the context of a political dispute. At the same time, there are legitimate concerns about finding anyone guilty of anything based on second or third hand accounts of what they did. As in many legal or political matters, the truth is more complicated than many people are making it sound.
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