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Saturday, May 03, 2008
Clemens and the Rules of Evidence: A More Absolute View

The whole Roger Clemens story has been a big Claude Raines Moment: "I'm shocked, shocked, to find that a Major League Baseball player cheated on his wife."

But I am going to take a more absolute view than Michael did: There is no way, if the judge is not asleep at the switch, that any evidence about Clemens' alleged affairs with McCready or Paulette Dean Daly is admissible.

It cannot come in for any substantive purpose. First, as Michael notes, any effect on Clemens' reputation from these statements came after McNamee's statements and the Mitchell Report and damage to reputation must be measured from the time of the libelous statements. Second, McNamee's statements damaged Clemens's professional reputation--his status as the greatest pitcher of his generation--and his reputation for marital fidelity has nothing to do with that professional reputation. Third, character is not the same thing as reputation. So the fact that damage to reputation is an element of Clemens' claim does not open the door to a lot of evidence that shows nothing more than that Clemens is a bad person (bad husband, etc.). And that is before we even get into the question of unfair prejudice.

Nor can it come in for impeachment/credibility purposes. Even assuming Clemens did have sex with McCready when she was underage, he never was convicted on statutory rape or anything similar and he is not going to be, since, as Michael noted, the statute of limitations has run. The only thing that can be used for credibility is the fact of conviction, not details of the underlying conduct. So, if there was no conviction, this is not in play.

Specific instances of conduct also can be used for credibility, but subject to key limitations that will keep evidence of any affairs from being admitted. First, the rules only allow evidence of conduct that is probative of a witness' truthfulness or untruthfulness--meaning past lies or untruthful acts. Marital infidelity is kind of a gray area. Cheating on your spouse (the actual act of having an affair, apart from what he told his wife or anyone else about the affair) is not really an untruthful act--it does not involve falsehood. Cheating involves breaking a promise--a contract, if you will--but breaking a contract is not per se an untruthful act. And for all we know, Debbie Clemens knew about the affairs and maybe even acquiesced. We refer to cheating as being "false, but I think that is more a colloquial usage than a legally accurate one. It is sleazy, morally frowned upon, and makes people think that the actor is sleavy and immoral--but credibility is only about character for truthfulness, not character generally. Now, whether he lied about the affair when asked about it (by the press, by his wife, by whomever) is a different story and could be used. So, too, is whether, he lied to either woman about being married when he began the affair.

But that runs into the second limitation. Under the rules, instances of untruthful conduct only can be asked about on cross-examination of the witness being impeached (Clemens) or another witness called to testify to Clemens' truthful character; they cannot be "proven up" by other evidence besides the target witness' testimony. So, at most, McNamee's lawyers could ask Clemens if he had an affair with McCready or Daly (or if he lied to his wife about having an affair with them). If Clemens denies the affair on the stand, that is the end of the inquiry. The lawyers are stuck with the answer and cannot bring in any outside evidence to show that Clemens is lying on the stand right now (to "complete the impeachment"). So do not expect McCready or Daly to be called as a witness. And do not expect to hear any of the details of any affairs. None of that is coming in.

One More Thought: Any FIU College of Law students planning on taking Evidence next spring: Take careful notes.


this is off-topic, but it is a sports-law question, so i'll give it a whirl.

Is there a good-faith clause in contracts?

Like, if a player needs 300 at-bats to kick in a new option, can the team release him at the 299 mark?

I ask because the Jays just released Frank Thomas for that reason (supposedly), but of course, it was much earlier than the 299 mark.

Anonymous Anonymous -- 5/03/2008 11:47 AM  

As someone studying for an Evidence finals, thanks for the primer.

Anonymous Anonymous -- 5/03/2008 1:07 PM  


Anonymous Anonymous -- 5/03/2008 1:08 PM  

As someone who just took an evidence final 2 days ago... where were you with this post then???

But as you said, all of the issues you mentioned come before the issue of unfair prejudice. Even if the affair was relevant/material enough to the case to be allowed in (which, as the author established, it isn't), the incredibly high level of prejudice against Clemens from introducing the affair would almost certainly outweigh any probative value towards establishing his character. In light of this evidence, the jury would likely rule for McNamee because they think Clemens is a skeevy jerk, and not because they believe McNamee didn't do what he is accused of doing.

McNamee's lawyer has to know all this, and is likely using this information to a) sway public opinion even further against Clemens, in the event this goes to trial, and b) try to bully/embarass Clemens into dropping the suit before it ever gets to that point.

Blogger William -- 5/03/2008 11:12 PM  

Being an attorney I could imagine asking questions about steriods to Ms. MCready and others:

"Did he have considerable Acne on his back?"

"Did his balls shrivel up over the time that you have known him?"

"Did he discuss steriods?"

Anonymous Anonymous -- 5/05/2008 8:19 PM  

Wouldn't the affairs come in to play when determining damages? McNamee could be liable for the reduction of the value of Clemens's reputation. Clemens will attempt to show why his reputation was extremely valuable, and McNamee can use the affairs or at least the publicity of the affairs to show that Clemens's reputation isn't nearly that valuable. So assuming Clemens gets a bifurcated trial then the affairs or publicity of them can't come in during the first half to refute liability, but could come in the second half to demonstrate minimal damages.

Anonymous Daniel -- 5/05/2008 8:24 PM  

Daniel: I think if Clemens could define the relevant reputation as his professional reputation being harmed by McNamee's statements, then the rest would not be relevant.

Anonymous 8:19:

I had not thought about your point--that McCready, if she did have this affair, could be a witness with knowledge about Clemens' steroid use (from observation or conversation). And the foundational question of "how do you know" inevitably leads to the affair. Unfairly prejudicial? Perhaps not, if she actually has first-hand knowledge. Perhaps the judge would sharply narrow the scope of her testimony.

Blogger Howard Wasserman -- 5/06/2008 7:21 AM  

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