You Can’t Prove Slander Without a Witness


You can’t prove slander without a witness.

Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.

In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.

For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.

Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.

The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what he said.

Slander is even tougher.           

In the case of slander, since you have nothing in writing, you must depend on a witness. Someone has to put their hand on the bible (just an expression, that doesn’t happen) and swear to what the defendant said about you.

And at this point it is important to note that a statement is not defamatory unless it is “published” to a third party. If the defendant tells you to your face that you are a no good, lying pony soldier, that is not defamatory. Thus, unless you have a witness to the defendant making the defamatory statement about you, you don’t have a case.

Callers make this way too complicated.

George: “I want to sue Joe. Joe is telling people that I’m a drug dealer, and I’m not.”

Me: “Do you have a witness who will testify that Joe told him you are a drug dealer?”

George: “Absolutely. Bill can testify that Sam told him that Joe said I was a drug dealer.”

Me: “Bill can’t testify to what Joe told Sam. That’s inadmissible hearsay. But Sam can testify to what Joe said. Why don’t you just get Sam to testify?”

George: “Sam and Joe are friends. Sam will never testify against Joe. Besides, no one knows where Sam lives.”

Me: “Then you don’t have a witness. You can’t file a case against Joe unless and until you have a witness who can testify to the words coming out of Joe’s mouth.”

And in anticipation of your question, no you can’t file the action before you have the evidence, hoping you will be able to get it. An ethical attorney is required to do due diligence before filing an action. Using the above fact pattern, if the attorney sues Joe, hoping that he will be able to track down Sam and convince him to testify, he and the client can be sued for malicious prosecution if the evidence never materializes.

Although not necessarily dictated by the law, I also won’t pursue a case without a willing witness. If I drag a witness into court kicking and screaming, they are not going to be a favorable witness.

Callers have this vision of a Perry Mason moment, where I will put Sam on the stand, and scream, “Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“Yes, yes, it’s true. Please stop. I can’t bear your withering cross-examination a minute longer!”

It doesn’t work that way. Sam doesn’t even have to tell outright lies to make his testimony meaningless. He’s not at all happy that you made him come to court and testify against his friend Joe, so he’s sure not going to say anything helpful to your case. The testimony will more likely go something like this:

“Isn’t it true Sam, if that’s even your real name, that on the night of June 3, 2022, at the Cue and Brew Bar, Joe said to you, ‘You should go see George, he’ll hook you up. Great drugs at low prices.’ Well isn’t it?”

“I don’t know man. I do sometimes go to the Cue and Brew, and I do remember seeing Joe there once, but I don’t remember talking to him, beyond maybe saying hi. I, like, have a drinking problem. So you can bet that if I’ve ended up at the Cue and Brew, I’m already wasted. That place is a dive.”

It doesn’t matter how certain you are that you know the source of the rumors.

I have to apply some tough love here, and I hope you will take it to heart if the circumstances apply to you.

Someone will call our office, convinced that there is a terrible rumor being spread about him. The pattern is almost always the same. His life is not going as well as he would like, and he concludes that there must be some external factor that is holding him back. He’s done a mental inventory of his life, and decided that some minor incident in his past was the start of the rumors.

Perhaps he was accused of padding his expenses at a place he worked 20 years earlier. The company looked into it and never said anything further, but he could tell they were not convinced of his innocence. He is certain that someone at the company told others, they told others, and now just about everyone thinks he is a thief. That is what is holding him back from the life he always envisioned. He offers me myriad examples that prove the existence of the rumor. When he went for his last job interview, they offered him a seat on a padded chair, and then asked if he wanted a pad of paper to take notes. He is further convinced that the rumor is spreading on social media. When I ask if he has seen the rumor on social media, the answer is always no, but he knows it must be the there since so many people know about it. (Or he sees it everywhere, but it’s coded. A reference to St. Paddy’s Day is really an acknowledgement of receipt of the rumor.)

He is sure that if I will just agree to file the legal action and start taking depositions of people from his past, we will be able to expose the people who are spreading the rumor after all these years.

But what if it is real?

The thing is, this caller could be right, but it is extremely unlikely. I heard a great saying many years ago.

“You’d think less about what people think about you, if you realized how seldom they do.”

People have their own lives to live. From my experience, while it is true that people love to gossip, there are also good people in the world. The caller believes that the rumor is so pervasive that even prospective employers hear it, and that’s why he can’t find a good job. But isn’t it likely that at some point, a prospective employer, on hearing the false rumor, would ask him about it?

Even if it’s not done out of compassion, someone would spill the beans.

“Oh my god, you’re that guy who padded his business expenses at Acme Incorporated. I’ve heard all about you. Get out of my office. We’d never hire a thief like you.”

So at least consider the possibility that people are not talking about you.

If you ultimately determine that the rumors are real, then examine the problem from a legal standpoint. For the reasons stated above, you can’t sue unless you have a witness. Until someone steps forward, willing to reveal the name of the person from whom they heard the rumor, you can’t start a legal action.

Finding the thread.

When I am researching an obscure legal issue, I call it “finding the thread.” I use every search term I can think of to try to find a court decision on that point of law. I run into multiple dead ends, but eventually I find a case that is close to the point, and it refers to other cases. I can grab that thread and follow it to find the legal authority I need.

And so it is when you have people talking about you. As an example, in the case of people jumping on and spreading lies on social media, you follow the tweets and posts back to the source. In the case of slander, the task is much more challenging, but once you have that first voluntary witness, he can tell you what he was told and by who, and that person can do the same, and so on.

But until you have that first witness, you cannot pursue the action.

Another alternative.

In all cases, where the caller cannot identify a witness, I have found that the purported harm they are suffering is very non-specific. “Strangers are mean to me,” “I can’t find a job,” or “the government is out to get me.” When one caller made this latter claim, I decided to help him out. I invited the caller to pick a goal, and we would see if the government interfered. As it turned out, his goal was very attainable, and was perfect for the test. He said that he wanted to start a hotdog stand. He was an older guy, and thought that would be a fun way to supplement his retirement. He chuckled at the absurdity of the goal, since the government would never let him do such a thing, given the rumor. Thankfully he had the funds necessary to start a hotdog stand, so I told him to start the process and check in with me if he encountered any impediments.

Even a simple hotdog stand requires substantial involvement with the government, including licensing, health permits and inspections, sales tax, etc. The beauty was that if some government official threw up a roadblock, we would have a thread. We’d damn well present ourselves at the office and ask why he was interfering with the process. Was it because of something he had heard?

I anticipated devoting some time to Project Hotdog Stand; not because I thought there would be problems based on some rumor, but simply because it is always a pain to deal with the government, and the caller would no doubt blame every roadblock on the rumor. I’m happy to report that he got his hotdog stand (a cart, actually) without ever needing my assistance.

The point here is not that you should start a food cart, but rather you might look for a way to expose the rumor by methodically going after a goal you are convinced is out of reach due to the rumor. In the process, you might discover that it is not holding you back, or that it doesn’t exist.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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