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Thursday, February 05, 2009
Bonds DocumentsFor those interested -- especially fellow shysters with a PACER login and password -- here's the mother lode of US v. Barry Bonds documents, pleadings, etc. I haven't had a chance to really go over them in any detail, but my cursory review of it confirms what has been obvious for some time: the government is in deep doo-doo if it can't somehow compel Anderson to testify, because it needs Anderson to authenticate almost all of the documentary evidence that implicates Bonds. Without it, they are relying on considerable amounts of hearsay. The government has argued that the hearsay is admissible due to several exceptions in the rules, but for reasons that will be boring to anyone who isn't a lawyer (and most of us who are) I find their arguments to this effect to be less-than-compelling.
Obviously the judge may disagree, and however she comes down on the issue is going to, obviously, go a long way towards determining the outcome of the case. If I had to handicap it at this point, however, I still say: Advantage Bonds.
Posted by Craig Calcaterra at 7:00am
Just out of curiosity, what exception to the hearsay rule are they arguing. I can’t think of an applicable one.
Posted 02/05 at 10:30 AM
Craig Calcaterra said...
They’re arguing admission against interest, business records, and/or the residual exception, which basically says “we can’t get our witness to testify, but the testimony is important, he said it once, and when he did there was some indicia of credibility to it.”
They rely heavily on the residual exception. I’ve never litigated it, but it strikes me that courts have to be extremely careful in resorting to it lest the entirety of the hearsay rule be swallowed up. I know many states adopted it in the case of domestic abuse (i.e. the wife that won’t later testify even though she at one time provided a statement). I’m not sure that it applies here.
At some point, if the government can’t get a witness to testify, they have to kiss goodbye whatever evidence he would have testified to.
Posted 02/05 at 10:38 AM
It seems I need a refresher evidence course.
Posted 02/05 at 10:58 AM
The residual exception is a joke. It’s a tool for overly ambitious prosecutors who can’t make a case under the traditional standards. Courts accepting the argument without any meaningful analysis drive me insane. It’s like a nuclear version of Potter Stewart’s obscenity analysis.
What exactly are circumstances that indicate a prior, out-of-court statement is trustworthy? In order to buy into the myth that such circumstances exist, your view of the world ignores reality. People lie in all kinds of circumstances for trivial reasons and for no reason at all. Give me a circumstance and I’ll give you a reason it might be a lie.
Posted 02/06 at 08:21 AM