Some of the information about hearsay evidence was also covered briefly in my earlier Part II post.

I haven’t been able to post recently due to an abnormally high work-load.  I’m taking classes that require a lot of writing, so after homework I’m not in much of a mood to do hours and hours of additional research and then to try to write a somewhat legible post.  However, there is one aspect of the Dr. Shermer issue that has been bothering me since this all came up, and it is the concept of hearsay evidence.  It seems to be grossly misunderstood, so I’d like to clear up exactly what constitutes hearsay and what doesn’t.  I’m taking a few moments today to clear up these misunderstandings.

Throughout the debate the term has been bandied about incorrectly by both sides.  People have (again, incorrectly) said that the infamous “Hand-grenade” post by Dr. Myers featured hearsay when he quotes the person who accused Dr. Shermer of rape.  Then the opposition LibFems go and respond that it isn’t hearsay, and they tack on “the evidence in this case” which includes the many cases of third party accounts that I have detailed in the Evaluating the Evidence Part 2 post.  These people are also incorrect.

First, let’s examine hearsay in a legal context.  The Federal rules of evidence have an entire section dedicated to this topic.  It defines hearsay as:

“…a statement made, other than one made by the declarant [accuser]…offered in evidence to prove the truth of the matter asserted.”

In other words, a person can’t get up on a witness stand and say, “Susan told me that Mike hit her.” If the actual hitting was the matter being adjudicated.  There are a couple of very good reasons for not accepting hearsay.  One is that we don’t know that this is precisely what was said.  A second is that we don’t know if it is true, and neither does the witness. But the real issue, in the U.S. at least, is that the Sixth Amendment to the Constitution guarantees the accused in a criminal matter the right to confront his accuser(s).  If we allow hearsay, that accuser gets to testify via surrogate.  This means that the jury can’t evaluate the credibility behind the claim, because the actual witness is not present.  It also means that the defense cannot cross-examine the absent witness.  “What do you mean by ‘hitting’?  Please tell us what exactly happened.  Isn’t it true that you physically attacked him with a hammer and that he hit you in self-defense?” So hearsay is not allowed in U.S. courts except under isolated and very specific circumstances.

But this debate hasn’t centered on the courtroom.  In fact, many of the LibFems seem not just content, but even happy to admit that the Shermer issue will never see the inside of a courtroom.  The focus has been on what Greta Christina calls, “the court of public opinion”.  So how is hearsay being defined by my fine LibFem friends?

One of my favorite LibFems to pick on here is Jason Thibeault from the Lousy Canuck blog.  In the comments thread (item 19) in his August 10 post about why he believes Shermer’s accusers, Mr. Thibeault says the following:

“Hearsay isn’t even that.  It’s heard from a friend-of-a-friend.”

Please note the lack of ellipses.  There are no missing words.  That is actually Mr. Thibeault’s working definition of “hearsay”, and I submit that this seems to be the working definition used by most of the LibFems involved in the discussion.  But what is the real definition of hearsay?  Let’s take a look at the dictionary.

The Free Dictionary:

 Unverified information heard or received from another; rumor.”

http://www.thefreedictionary.com/hearsay

Merriam Webster (online dictionary):

“Something heard from another person : something that you have been told. Rumor.” Merriam Webster (online)

For synonyms this same entry gives the following words: buzz, dish, gossip, rumor, and scuttlebutt.

For related words: tale, disinformation, propaganda, urban legend, dirt.

http://www.merriam-webster.com/dictionary/hearsay

Dictionary.com:

“An item of idle or unverified information or gossip; rumor” Dictionary.com

http://dictionary.reference.com/browse/hearsay

So we can easily see that something is hearsay if the sharer is not witness to the events in question and if the information that is being shared comes from someone other than the person sharing it.

Now, as to the “Hand grenade” post.  I don’t consider this to be hearsay, for the simple reason that this is a direct quote, allegedly written by the hand of the accuser.  Yes, it was shared by a third party, but it was shared in such a way to leave little doubt as to who said it.  If Dr. Myers had said, “I spoke to a woman who said…” that would be hearsay.  But when he says, “Here is what the accuser wrote to me in an email…” is a firsthand account of events (such as it is).  So this statement doesn’t qualify as hearsay.

I do know that there is some question as to how this information made it to Dr. Myers.  It seems to be a matter of contention as to whether the information was forwarded to him via Carrie Poppie, or whether Ms. Poppie put the accuser into contact with Dr. Myers directly and the email was sent to him without being routed through a third party (Dr. Myers doctored the original post to make it sound like the latter, but the original has some indication that the email was forwarded).  I don’t see much of a difference if we assume that the wording in the original email was not doctored in some way by Ms. Poppie, which I suggest is improbable.  So this statement would not be hearsay.

What is hearsay in this case, however, is most of the other evidence that has been amassed against Dr. Shermer as is detailed in my Part II post.  Any time someone relates a story about something they heard from another person, it is hearsay by definition.  So, referring to the evidence, Naomi Baker’s story is hearsay, as are the stories from  Delphi_Ote, Brian Thompson, Carrie Poppie (in part), and US2 (in part)*.

These stories are rumors by definition and do not deserve to be given credibility as evidence until or unless the parties that told the original first-hand story of the events come forward.  If you are not a witness or in some way a firsthand witness of the events and your knowledge comes from the person or people who are, you are a hearsay witness and what you are saying is not evidence in any way, shape, or form.

Now, as to the “Hand-grenade” post itself.  It has been suggested by a number of people that we should consider Dr. Myers’ post as a random act of journalism; an argument not without its merits.  True, he goes through much trouble to paint himself simply as a conduit of information, points out that he has no direct evidence of its truth, and claims to merely be repeating it because of some moral decision he has made that it is better to speak up in the concern for safety than to remain silent.  Greta Christina writes somewhat extensively on this theme, even likening Dr. Myers to Woodward and Bernstein in the Watergate scandal.

But was it journalism really? The University of Iowa ethics in journalism curriculum quotes the Elements of Journalism, p. 71 as saying: “The essence of journalism is a discipline of verification.”  The curriculum goes on to say:

“Journalism is not about simply asserting something is true (or not).  It is about following particular methods to verify the truth (or falsity) of the information.  These methods are the core of “objectivity” in journalism.  Again, it’s not about the journalist (an unavoidably subjective human being…It is about the ways in which the journalist goes about gathering, organizing and disseminating information.”

Based on these facts, we have some questions that must be asked:

  1. Was Dr. Myers objective.  No.  Although the beginning of his post made much ado about his inner struggle as to whether or not to post this information, and that he decided to do it because it was the right thing to do, later in his post he shows the true biased nature and obvious subjective motivations for doing so.

“ Do I stand up for the one who has no recourse…or do I shelter the powerful big name guy from an accusation I can’t personally vouch for, except to say that I know the author, and that she’s not trying to acquire notoriety.”

Here we see Dr. Myers giving a personal (subjective) opinion about the motivations of the accuser, trying to forestall the inevitable questions as to the credibility of a statement made from an unnamed source.

Again:

“. I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described; all I can say is that the author is known to me, and she has also been vouched for by one other person I trust. “

Now he is giving character references based on his own subjective view of some other unnamed person (Carrie Poppie, perhaps?) telling the readers that he trusts this other person’s judgment as to the motivations of the accuser.  This is not something a reputable journalist would do.  A person’s credibility is based on that person alone, not on the opinions of unnamed character references.

2.    In the preamble to the statement by US2, Dr. Myers says the following:

“Further corroboration: a witness has come forward. This person has asked to remain anonymous too, but I will say they’re someone who doesn’t particularly like me — so no accusations of fannishness, OK?”

In other words, “This woman has no motivation to lie because she doesn’t even like me, so her motivation must be the simple dissemination of the truth.”

Again, we’re dealing with a subjective opinion given by Dr. Myers with the sole purpose (as he states himself) of removing doubts as to her motivations for writing.

3.       And finally, in his preamble to my favorite story, that of the Wine Drinking Woman (WDW):

“Women are still writing into me with their personal stories. This one isn’t so awful, but it’s mainly illustrative of his tactics…there’s nothing here that would form the basis of any kind of serious complaint, but most importantly, I think, it tells you exactly what kind of behavior to watch out for with him.” (Italics his)

Notice that we’ve moved from the ostensibly objective “I don’t really know if it’s true, I’m just sharing what she told me” attitude of the beginning of the post to a more activist approach.  Now he’s telling us what tactics are being used by Dr. Shermer and what women need to watch out for.  There is a notable lack of the objectively requisite “if true” type of qualifiers.  Here, he is a true believer and is so eager to support the rape allegation he has recounted the story of a woman getting so drunk she can’t walk and then blaming it on Dr. Shermer.

4.          Also notably absent in this post is any attempt to verify the information.  As we saw above, “The essence of journalism is a discipline of verification.”  Is there any verification involved in the reporting of this story?  None that is shared, as it certainly would have been had it been attempted.  What would a journalist have done?  First, the journalist always tries to get verification of the information.  But as we see, he doesn’t even have any real information to verify.  So the first thing a journalist would do would be to question the US1 accuser further:

-        Where and when did this occur?

-        Who were the people to whom you reported this incident?

-        Were you in a bar?  Were there any witnesses around who saw you interacting with Dr. Shermer prior to the incident?

-        What do you mean when you say that he “coerced you into a position” that you were unable to consent?  Do you mean that you were intoxicated?  Did you drink too much, or are you alleging that he surreptitiously gave you a drug of some type?  Why do you suspect that?

-        Do you remember the sex act itself?  If you were unable to consent, was it because you were unconscious?  If so, how do you know that you had sex and that it was with Dr. Shermer?

And so forth.  Now, I can already hear my detractors firing up their word processor applications to point out that the woman already said she didn’t want to give details out of a fear of reprisals.  That’s a fair enough statement on her behalf, and it is admittedly something that any true rape victim will take into account.  It is also a very prevalent reason for rapes not being reported in the first place, and may be the very reason she didn’t take this further at the time of the incident.  However, a journalist asks the questions.  If she doesn’t want to answer, the journalist will report that as well.  All of this goes towards creating an objective story.  All of this is missing from Dr. Myers’ post.

The second thing a journalist would do—every single journalist in the Solar System—is to try to reach the accused rapist for comment.  And if the accused chose not to respond, a journalist would include that in the story as well, “Dr. Shermer declined to make a statement,” or “Emails to Dr. Shermer for comment were unanswered.”

These things were not done.  Dr. Myers is not now, and was not then, acting as a journalist.  Woodward and Bernstein would not approve.**

It is clear from this evaluation that the characterization of Dr. Myers as a journalist is a fanciful one that doesn’t stand up to any sort of real scrutiny. It also cements the fact that most of the “evidence” against Dr. Shermer is hearsay/rumor and therefore not true evidence at all.

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*US2 and Carrie Poppie have value as corroborating witnesses only to the place that they can tell when they were told the story and what the story was that they were told at that time.  In a court of law, this might be allowed if the purpose is to show what the story was at an early time frame and to demonstrate that it has (or has not) changed substantially since that time.  The evidence they give is not directly pertaining to the incident itself, but to the state of mind of the accuser at a particular time.

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** Greta Christina pushes the analogy in talking about the difference in “unnamed sources” and “anonymous sources” in that she brings the notorious “Deepthroat” source of the Watergate story up.  It must be noted that the analogy is quite weak in that “Deepthroat” wasn’t a victim anonymously reporting a crime that had been perpetrated against him personally.  He was a source of information telling the reporters where to look to get the scoop on what actually happened.