Story About Seeing How Diversity Enriches An Evidence Class

This post is not about how the affirmative action challenge Fisher v. Texas, to be heard by the U.S. Supreme Court this fall, should turn out, although the essay from which it was taken, "Diversity's Evidences," by Michigan's Len Niehoff, is an advocacy piece for maintaining Grutter v. University of Michigan.  The point of this post is to share a thought-provoking and memorable anecdote:

I recall, for instance, one day when we were working through a problem that involves the hearsay doctrine. In very general terms, that doctrine prohibits witnesses from repeating things in court that were said outside of court. Students often find the doctrine maddeningly complicated.

Part of the doctrine’s complexity arises from the fact that it is subject to dozens of exceptions. This includes exceptions for statements that were made under stress or excitement and for statements that describe an event and were made while or right after the event was occurring. These exceptions rest in part on the assumption that statements made under these circumstances are typically less calculated and therefore more reliable.

We were discussing a scenario — based on an actual case — that presented the question of whether the tape of a phone call to a 911 operator should be admissible. In the tape, a woman who lived in an apartment building reported that several large dogs, owned by one of her neighbors, were attacking another neighbor in the hallway. The caller described the dogs, the people who owned them and were trying unsuccessfully to restrain them, and the location and severity of the attack. During the entire call, the woman remained in her apartment with the door closed.

I had taught this scenario for many years and the discussion consistently played out along the same lines. The students would recognize that the tape presented a hearsay problem. They would identify the exceptions discussed above as potentially applicable. And then they would spot a difficulty in applying those exceptions: because the woman listened to the commotion through her door and never left her apartment, she arguably did not have personal knowledge about the matters she was describing. This is how the discussion always had gone; this is how it always had ended.

On this occasion, however, a student raised his hand just as we were about to move on. “I’m sorry,” he said, “but I disagree with the conclusion. You’ve all wrongly assumed that you need to see something to have personal knowledge about it. This woman knew what her neighbor’s dogs sounded like. She could hear that they were attacking someone. She could recognize her neighbors’ voices. She could tell where the sounds were coming from. Granted, she didn’t see anything. But she certainly had personal knowledge of what was happening.”

The class sat in stunned silence. Of course, this student was right. He also happened — not incidentally — to be blind.