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Thursday, April 13, 2006
Perjury Investigation of Barry Bonds: More Bark than Bite?

According to Ted Rowlands of CNN, the United States Attorneys' Office in San Francisco is investigating whether Barry Bonds perjured himself while testifying before a grand jury in 2003. During that testimony, Bonds admitted that he had used a clear substance and a cream provided by trainer Greg Anderson, but stated that he believed they were flaxseed oil and arthritis balm. He also disclaimed any knowledge of substance-usage records, such as doping calendars from BALCO which indicated that he had used banned drugs, and denied ever paying Anderson for steroids or knowingly using them. As we discussed last month, the new book "Game of Shadows" paints Bonds as a knowing and habitual user of steroids and performance-enhancing substances.

Keep in mind, perjury charges are typically very difficult to prove. Perjury is the act of knowingly, intentionally, and materially lying to a court after taking an oath to tell the truth. So the prosecution must establish that a defendant knowingly and intentionally misstated a material fact, rather than having merely suffered from 1) a faulty recollection while answering a question; 2) a misunderstanding of the question being asked; or 3) a misunderstanding of his own response to the question. Moreover, an intentional lie must have a consequential effect on the case's ultimate outcome, a hurdle which can also be difficult to establish.

On the other hand, and assuming that Bonds did in fact lie under oath, his reputation for being meticulous about what goes into his body would seem to undercut any faulty recollection defense. But then again, did he understand the questions being asked of him? And did he fully understand his own answers? And how can the prosecution show that he did?



It is my understanding that a member of the grand jury can testify to what they said but not to what other members said?????

Can a grand jury member testify in court that they believed Mr. Bonds lied under oath? Or just report same to the prosecutor? And then can the prosecutor use this "testimony" against Mr. Bonds?

Anonymous Richard Mock -- 4/13/2006 11:14 PM  


Thank you for those questions. In the unlikely event the perjury charges were to go to trial, the prosecution would focus on material witnesses who could impugn Bonds' sworn testimony. For instance, Lance Williams and Mark Fainaru-Wada could be called to testify (although their testimony would have to survive hearsay challenges by Bonds’ attorneys) as could Greg Anderson and the various BALCO characters. Through discovery, the prosecution would also try to establish that Bonds knowingly made false remarks, and given his interests in the case, one may be able to infer intent from knowingly-false statements.

As to whether Bonds was confused by the questions or his answers, both would be much harder to show, although the court transcript may reveal whether he seemed confused by the questions or whether his answers seemed disconnected to the corresponding questions. Even so, the burden of establishing Bonds’ state of mind and cogency go the prosecution’s usual difficulty in succeeding in a perjury charge, and why perjury is more threatening than hurting.

As to the reaction of the grand jurors and their observations of Bonds while he testified, that is an extremely interesting point. Usually jurors can testify if there are allegations of juror and prosecutorial misconduct in a criminal conviction, but it is more generally uncommon that jurors are later called as witnesses, and there are immunities that advance that effect.

Blogger Michael McCann -- 4/14/2006 12:38 PM  

thank you

Anonymous kurtlar -- 2/11/2009 5:58 PM  

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