a) Ask party in deposition whether they made the statements and if they deny it, gather other evidence or witnesses that confirm that they made the statement?

b) Ask the party at trial whether they made the statement and let the jury decide whether they made the statement?

Are there other scenarios / approaches?

  • A good lawyer never asks a witness a question to which they don't know the answer. (So, you need to gather the additional evidence anyway.) (There is an exception: if the question is a disguised suggestion to the jury, and you don't care what the answer is.) – Martin Bonner supports Monica Oct 4 '19 at 10:51

What does one do if, a party at trial denies having made a statement in a published article?

A combination of a) and b).

The plaintiff should gather other evidence with which to disprove the denials of authorship, or at least to question the reliability the publisher's testimony. The jury needs that evidence in order to discern who is credible. Whether decisive or not for credibility purposes, any material inconsistencies the plaintiff is able to point out from the witness's testimony(-ies) tend to guide the fact-finder (i.e., the jury) on matters of credibility.

Whenever possible, the evidence should include admissible documents from when the events took place. For instance, records reflecting the submission & editing process of that article. Those documents typically are obtained by subpoenaing the publisher and/or relevant non-parties, accordingly. That will reduce the chances of testimony deficiencies, whether these stem from witnesses' perjury, lack of memory, inability to clearly articulate what they know, or inability to testify at all (due to witness's illness or death by the time the matter goes to trial).


The article is probably inadmissible hearsay

... an out-of-court statement offered to prove the truth of the matter asserted therein

The general perception that "hearsay" is something like "gossip" or "rumor" is not correct - anything that anyone says (verbally or in writing) while not under oath is hearsay1. Hearsay is inadmissible (subject to exceptions that don't apply here) under strict rules of evidence that are usually in place in court; some lower courts and tribunals do not have strict rules of evidence.

For the article to be admissible at all, somebody has to testify as to its veracity. It seems unlikely that your opponent will do so so you may need to subpoena the journalist. However, the article is not the primary source so you should subpoena the journalist's notes/recordings of the interview and then have the journalist testify that they are accurate.

Notwithstanding, the journalist can only testify as to what your opponent said - not that what they said was true.

1 Noting that the details vary considerably over common law jurisdictions, I am focusing on the general concept. For example, in , hearsay is generally admissible in civil proceedings.

  • Could be different in the US. See Fed Rule Evidence 801(d)(1) – Gill Hamel Oct 5 '19 at 19:26
  • @GillHamel as I said, details differ and not all states follow Fed rules. Notwithstanding, 801(d)(1) doesn’t apply because statements to journalists are not made under penalty of perjury - you have no obligations tell journalists the truth. IMO you shouldn’t because it only encourages them. – Dale M Oct 5 '19 at 21:20
  • 1
    The proven fact that a newspaper article claims I said X doesn’t prove that I indeed said X, the journalist could be lying. If the journalist gives evidence in court that I indeed said X, that proves that I said X, but not whether X is true. I would think there are cases where you can draw conclusions from what I said. For example in a libel case. Or if I claim I didn’t know about Y and what I said proved I did. – gnasher729 Oct 6 '19 at 15:09

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