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Thursday, February 14, 2008

Steroids and the Rules of Evidence

So if yesterday was about party politics and adversarial v. inquisitorial procedure, today is about evidentiary questions coming out of the steroids madness. McNamee has accused four people of using HGH or steroids: Clemens, Andy Pettite, Chuck Knoblack, and Debbie Clemens (Roger's wife). And in the discussion over McNamee's credibility, much is being made of the fact that three of the four people (everyone but Roger) he has accused have admitted to taking drugs--that is, they have acknowledged that McNamee told the truth.

So, the question: What is the relevancy and admissibility of the fact that three accusations have been true to either the truth of his accusations against Clemens or his credibility? My preliminary take is:

a) Irrelevant for any substantive purposes relating to the truth of the allegations against Clements (for purposes of either a defamation claim or a perjury charge).

b) Admissible under 608(b)(2) (or the Texas equivalent) if Clemens puts on a reputation witness to attack McNamee's character for truthfulness. That witness could be cross-examined about specific instances of truthful conduct by McNamee.

What am I missing?

Posted by Howard Wasserman on February 14, 2008 at 03:52 PM | Permalink


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What you're missing is that, as a matter of common sense, it strains credulity (for some) to claim that while three fourths of the guy's story is true, the part about Clemens is a complete fabrication. (Of course, if there were some pressure on McNamee to finger Clemens, it doesn't seem so implausible after all.) Congress isn't attempting to determine beyond a reasonable doubt who's telling the truth here; they're only looking to generally determine how accurate the Mitchell Report is, and showing that the one witness in the report whose credibility has really been attacked publicly did tell the truth about a lot of things does go some common-sensical distance towards establishing the accuracy of the Report, though legally of course it doesn't mean anything.

Posted by: Asher | Feb 15, 2008 3:18:11 AM

The Texas Rules of Evidence are different than the Federal Rules of Evidence and do not allow cross-examination of witnesses about specific instances. Under Texas Rule of Evidence 608(b):

"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence."


Therefore, I do not believe that the truthfulness of McNamee's claims would be admissible for any purpose in a case heard under the Texas Rules of Evidence.

Posted by: Colin Miller | Feb 15, 2008 8:47:27 AM

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