Senate Select Committee on Presidential Campaign Activities, June 29, 1973 (2/2)
Senate Select Committee on Presidential Campaign Activities, June 29, 1973 (2/2)
[01.10.02-side view committee table--] Senator ERVIN. Senator Inouye, if you will yield for just a moment, Mr. Dash said he wanted to make a statement concerning his understanding of the rule of evidence. Mr. DASH. I think the question has come up from time to time and has been mentioned either by witnesses or by members of the committee as to admissibility of certain hearsay evidence. A memorandum of law has been submitted to all members of the committee. The leading case of the, Supreme Court is Krulewitch v. United States and that case has been the position of the committee and the counsel working on the committee that even hearsay testimony, and most of the hearsay testimony admitted falls within this rule, is an exception to the hearsay rule. [01.10.52] The Supreme Court has ruled time and time again that, where there is a conspiracy and there are overt acts--and I think at this stage of our hearings, there has been sufficient testimony which would go to a, jury In a criminal case indicating that a conspiracy has occurred and that there have been overt acts--that therefore, the statements of a coconspirator in the furtherance and in the course of the conspiracy, although hearsay, is an exception to the hearsay rule and is admitted in every, court in this country. [01.11.28] Therefore, even Mr. McCord's testimony which was initially hearsay, following up on the evidence of other witnesses which established the conspiracy and overt acts, that the Supreme Court has ruled in Krulewitch and other cases that that, testimony is admissible and goes to a jury and is used against the defendants that may be charged as conspirators as any other testimony and is an exception to the hearsay rule. Therefore, I think it. should be made very clear, and a memo has, been given to every member of the committee that the hearsay evidence that has been admitted before this committee would be admissible in any court of law in this country under the Krulewitch decision, excepting Conspiracy and co-conspirator's statements from the hearsay rule. [01.12.19-GURNEY is not pleased with this statement] Senator GURNEY. What the chief counsel is saying, then, is that some people may be indicted on conspiracy, is that it, in addition to obstruction of justice and other things? Mr. DASH. Oh, quite certainly, Senator. The evidence before this committee, and I understand the evidence, being considered by the prosecutors, includes the doctrine of conspiracy with two or more persons engaged in the commission of a crime that is a conspiracy. I understand that even Mr. LaRue, who just recently pleaded guilty, and this was made public knowledge, pleaded guilty to a conspiracy count rather than any other count, and that conspiracy is a major crime in this inquiry and in the inquiry made by a special prosecutor. [01.13.04] Senator GURNEY. Did you say Mr. LaRue pleaded guilty to conspiracy ? Mr. DASH. Yes. Senator GURNEY. I thought it was obstruction of justice? Mr. DASH. No; conspiracy to obstruct justice, Senator, Senator BAKER. Mr. Chairman, could I say a word on this subject? Senator ERVIN. Sure. [01.13.16-Sen. BAKER weighs in in the debate, and points out that the time for hairsplitting is done.] Senator BAKER. I do not mean to be facetious and I do not mean this to be critical of Mr. Dash, who is a fine lawyer, and Senator Gurney, who is a fine lawyer and a fine Senator, but this committee is too far gone, to start worrying about hearsay and we are too deep into the business of finding the facts to try to second-guess what a court will admit or will not admit. I have spent, a lifetime being surprised on what a court would admit or -would not admit, depending on my point of view. I think it was Oliver Wendell Holmes who said lawyers spend their professional careers shoveling smoke and I have no desire to shovel smoke. [01.14.02] So I really recommend, Mr. Chairman, and once again, this is not a criticism of the committee or counsel, I recommend that we not think of ourselves as a court or a jury or a judge, and that we try to follow the facts wherever they lead us with the full foreknowledge that what we do will have little if any, effect on how the rules, of evidence are applied if there is in fact litigation, either civil or criminal, based on these same facts. [01.14.37] So I think that rules of this committee are important and the rule against hearsay and its exceptions--and the hearsay rule is virtually emasculated by the hundreds of exceptions to it--but I think the rules getting along with the business themselves are -far less important than us getting business at hand. So I very much hope that we do not fall into the business of extensive objections, the argument of objections, and the arguments about rules of law that may apply. If we, get too far out of bounds, I think we ought to qualify the quality of the evidence so that we can take that into account. But I do not think, and I hope we do not start admitting and excluding evidence. Thank you, Mr. Chairman. [00.15.21-ERVIN defends the committee's practices on evidence] Senator ERVIN. I would just like, to make the Observation that Felix Frankfurter wrote a very interesting article at the time about the Teapot Dome and he laid great stress on the wisdom of the fact that congressional committees should not be bound by technical rules of evidence I do think, however that it was well for Mr. Dash to make his statement, because I have read several articles by commentators who are not lawyers, and who were criticizing the committee on the ground that it had received hearsay testimony, I am not concerned in much about criticism, because I have been criticized very much over the years and I am sort of inured to It. but, I think it is well for the general public to know that, under the rules governing the admissibility of declarations of co-conspirators the great bulk of the hearsay testimony that has been received in this case would have been admissible in a court of law for an indictment charging a conspiracy to obstruct justice. [01.16.39] I think the observations of my friend from Tennessee are correct, that we are not judges and we are not, juries. We are members of a legislative body seeking to determine whether or not the facts before, us indicate that new legislation may be necessary. [01.16.58]