Hearsay A Question

Doc

Just wait and see what Clemens lawyers do !!!!

Here's your answer TR:
Clemens attorney said

“Everybody assumes this is true and a man’s reputation and all these years is thrown and gone just like that,” Hardin said during a news conference at his Houston office. “Even if it turns out it didn’t happen, he is ruined.”

Quite a response. It might be time to get off the hero worship pedestal.

1ggy


The only only hero I ever had was my Dad and he passed 18 months ago--BTW --he refused to be put on a pedestal

Also I am not a Clemens fan-- I only say there is no proof but words from a perhaps disgruntled person--I find the Mitchell report terribly flawed by the fact that they have no "CONCRETE PROOF" on anyone other than the "outers"

NO WAY will Clemens sue for libel. That would trigger discovery and the Clemens on the stand under oath.

Hearsay is an evidentiary standard for a court of law. The Mitchell report isn't a legal proceeding, and isn't bund by that kind of standard. It IS subject to libel law, but if Mitchel fingered Clemens, you can bet your bottom dollar he has the goods on him.

Rob


From reading the report I would not count on it

not all of the report was public

TR: Sorry for your loss.

Regarding this steroid mess, as a person who kids might look to for advice, your use of legalisms (in a non-legal forum) to try and cover up the obvious is troubling. The players whom you so stridently protect are the ones (through their union) who fought this thing every step of the way. IF a few innocents get bloody in cleaning this thing up, its their own fault for having a union position so defiant.
I've read your posts in the past and despite often over the top rhetoric and enjoying a good fight, your observations on east coast colleges have been pretty good. Now, I wouldn't listen to a thing you say if this is truly your judgement on this epidemic.

A large percentage of the players named either failed tests, sent checks to Radomski, were proven to have bought HGH from a shady clinic or were otherwise proven to have been involved with PEDs. There was at least one case where the investigators determined despite this type of evidence that the player could not be proved to have taken PEDs and he was not included.

There were a few where only testimony from a person the investigators believed along with other "hearsay" type testimony and along with sudden changes in physique and ability were used to name the players.

How does that become "largely hearsay"?

JMO, but Clemens will not sue.

Doc hearsay is when you repeat something that someone else stated and didn't witness yourself.
This testomony would not be permitted ina court of law. I believe the info was given under oath and is subject to libel laws if inaccurate. Also subject to purjury laws.

quote:

“Even if it turns out it didn’t happen, he is ruined.”

That is BS if I ever heard BS.

This is not a hearsay situation.

I'll reprint here my comments on another, parallel thread:

If someone said to the Mitchell investigators, "I didn't see it happening myself, but so-and-so told me he saw it happening," that would be hearsay. The problem with hearsay is that we can't judge the credibility of the source, and in particular, if we don't make the source of the information sit through questioning that seeks either to establish or refute his credibility, then the accusation is inherently unreliable.

But when someone says, "I was there and I saw it happen," or "I was there and I held the hypodermic needle and injected Roger Clemens in his buttocks", that is not hearsay. That is a first-hand statement from an eye witness. And that is the evidence against Clemens.

Now, you can say that Roger denies that person's statements. But it is not at all unusual for the wrongdoer to issue blanket denials. The question now is, who is more credible, the accuser, or Roger?

The fact is, each of these players was given the full and fair opportunity to come to the investigators and tell his side of the story. And almost all of them refused. That in itself is very telling.

In criminal cases, you have a right not to incriminate yourself, and the law prohibits the prosecution from drawing any inferences from your refusal to talk, as a means of protecting your right against self-incrimination. But most folks who let strong accusations go unrefuted end up convicted.

And the privilege against self-incrimination doesn't even apply outside the criminal context. In civil cases and other, non-court matters, inferences are typically drawn from a refusal to talk or otherwise cooperate. That's because we normally expect an innocent man to want to clear his name and protest his innocence. An accused who refuses to talk deprives us of his own admission of guilt, but we naturally draw the conclusion that he is guilty nonetheless.

According to the Mitchell report, a person who has established that he has first hand knowledge has accused Clemens. It is also noteworthy when someone is candid enough to admit their own complicity. Those types of witnesses are typically deemed very credible. And in the face of that very credible evidence, Clemens has refused to cooperate, refused to sit for questioning.

Any reasonable person would reach the natural conclusion: GUILTY, GUILTY, GUILTY!

Not hearsay. Not unfair to conclude guilt. At this point the ball is in Roger's court and if he really expects anyone to believe him, he'd better get busy. The indignant denial game didn't work for Bonds, didn't work for Palmeiro, didn't work for McGwire. It won't work for Clemens, either. If he's not careful, his adoring fans will turn on him every bit as quickly as Michael Vick's turned on him.

MIDLO

If it is not hearsay how it is backed up ???

Midlo you are absolutely correct.

How well did it work for Marion Jones?

In all fairness, we have to admit that the players were in essence told by the players union to not cooperate with the investigation. For that reason, even an innocent player would be expected to not testify on his own behalf before the Mitchell investigators.

Having said that, I don't believe there was anything wrong in how Mitchell handled the report and there was little if any hearsay in the report.

Not "Being Backed Up" and not being hearsay are two different issues.
Hearsay is "An out of court statement offered for the truth of the matter asserted".
A witness can testify (as MD has stated) "I saw this". A fair point of x-exam may be, "who else was there,or did you make notes of this at the time, or is this event taped or memorialized in any manner" If the answers aer "no one, no and no" it may be that the statement is not "Backed Up" . This does not make the witness' statement inadmissable, it may be that the weight/credibility of the statement may suffer do to the lack of supporting evidence.

In many tribunals (admisinstrative hearings, arbitrations), "hearsay" is admissible. The trier of fact (maybe in this case the public in general) will be instructed to take into consideration that the evidence offered has not been subject to x exam and therefore credit the weight that evidence accordingly.

At least Jones admitted her guilt and was stiped of all her medals. You can see the difference when you have a strong union in BB and not in track and field. They should go after the union for conspiracy.

The right way to have done this is to notify the player he was going to be named before the report came out to the public. It is my understanding that they sent out a memo to every single Major League player at the beginning of the investigation asking for interviews. It has been said that the players union recommended players not to respond.

Had they notified those who were to have their names actually released, those players and their agents surely would have been glad to grant an interview. This may or may not have changed anything, but it sure would have been the fair way to handle it and to gather both sides. IMO

which generally defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801, 28 U.S.C. App

The statements in the Mitchell report are not hearsay. They are direct staements by the witness as to whatt they saw or did.
As Midlo said the credibility of the witness is at the heart of the matter. I am sure they were extremely cautious in reporting those names. It is also possible to convict on circumstancial evidence if it meets the burden of proof.

quote:

Originally posted by Rob Kremer:
NO WAY will Clemens sue for libel. That would trigger discovery and the Clemens on the stand under oath.

Hearsay is an evidentiary standard for a court of law. The Mitchell report isn't a legal proceeding, and isn't bund by that kind of standard. It IS subject to libel law, but if Mitchel fingered Clemens, you can bet your bottom dollar he has the goods on him.

Kevin Brown was fingered on "GM suspects steroids." Is that "the goods."

quote:

But when someone says, "I was there and I saw it happen," or "I was there and I held the hypodermic needle and injected Roger Clemens in his buttocks", that is not hearsay. That is a first-hand statement from an eye witness. And that is the evidence against Clemens.

Then it's Clemen's attorney's job to destroy the credibility of the witness. He's halfway there based on the guy's reputation and charges against him.

I'm not defending the players on the list. I'm against witch hunts and burning at the stake before a trial to determine the validity of the evidence.

It appears that the report shows who they believe other wise they would not put it out for public comsumption. One of the main ingredients for libel.

if the witness has a suspect past,is that worse than an accused illegal drug user?

while i realize this is a strange question. why would they spend 44 million and have a prestigious law firm conduct this investigation. knowing they would lose all the libel and slander suits? cause if their just throwing the money away,i could have used a few bucks for my oil bill.

quote:

Originally posted by RJM:
[I'm not defending the players on the list. I'm against witch hunts and burning at the stake before a trial to determine the validity of the evidence.

Trials aren't about truth, we should all know that by now.

BTW.. Mitchells law firm was indemnified by the MLB.

If there is any legal heat from the report, it will be the MLB that takes it.

I would love to see that document.
How does MLB idemnfy a law firm for all the individuals who get named ?
If you write an indemnity it also doesn't cover negligently acguired info if they can show negligence.

Bobble, it was on ESPN. Indemnification was a demand from Mitchells firm to do the report if it was going to name names. I don't really understand it, but I guess MLB said they would take the responsibity for any legel issues arising from the report.

It may be so but that is a dangerous thing for both parties.
I can't even imagine the suits that could arise if MLB took the fall.
It is like ride the horse at your own risk. Signes posted every where. Rider falls off due to loose saddle and breaks neck. Stable loses.
Just too amny issues so Mitchell report would have to be produced withextreme caution and dilligence.

Ahem, legalese 101: The "Hearsay Rule" has approximately 17 exceptions-excited utterance, declaration against one's own interest, admissions, business records, etc.; Most exceptions are rooted in the notion that there's something present to give the evidence an aura of credibility sufficient to allow it in. As a practical matter, an awful lot of "hearsay" evidence gets admitted into evidence because it fits into one of the myriad exceptions.

If a player said something contrary to his own best interests, it would likely be considered as "declaration against interests", an exception to the rule. The reasoning is he wouldn't shoot himself in the foot if it weren't true.

H-1

RJM, that may be true, but tell me, what did the guy have to gain by implicating Clemens if it weren't true?

It's not like he's cutting a deal to get time off his sentence. It's not like he's making himself a celebrity.

Even low-life scum tell the truth sometimes. And typically lies come when there's something to be gained from lying.

It's even a little late for a book deal, Canseco beat him to it.

WOW !!!!!!!!!!. I never realized we had so many experts on the hearsay rule. Perhaps those of you wh9 have read the Mitchell Report AND actually know something about the applicable law would not mind answering a few questions for me.

1) Isn't using a prescription drug without a prescription a violation of federal and (most if not all* state law. Does Rush Limbaugh ring a bell with anyone?

2) Was anyone put under oath acccording to the Mitchell Report? Probably not would be my answer since Mitchell said he did not have the power to subpoena or the power to search during his "investigation"? How would he have the power to put anyone under oath? But if he could and insisted on it, isn't there a cath 22? False swearing is against the law also, even if it is not in a judicial context isn't it?

3* Besides the Player's Union telling the "accused" to not talk to Mr. Mitchell, isn't it perfectly logical that if you ever used a prescription drug without a prescription you would not want to tell someone who was going to publish a report about it and name names that you did that since it would be an admission against interest and not hearsay in any subsequent criminal, civil or other quasi-judicial proceeding brought against you?

4* After Mitchell first asked the players to cooperate and later, after the three sources of the information had provided whatever they provided, were the players named given an opportunity to set the record "straight" if they so desired? If they were told the specific allegations and who made them by Mitchell or his staff and still chose not to reply, does their silence speak volumes about the truth or falsity of the allegations? The right against self-incrimination can only be invoked if what you say will incriminate you, can't it?

5* Libel suit heh? What with public figure, actual malice standard and merely quoting the source, probably a pretty though row to hoe, don't you think?

To parody that song the introduced us old timers to Mr. Ed. "A mess, is a mess, of course, of course, unless the mess is made worse, of course, that is, of course, unless a source, talked to Mr Mitch."

TW344

TW Libel results from an untrue statement that is communicated to a 3rd party and results in damages to the party the statement is made about. Has to be untrue, communicated to a 3rd party and result in damages.
Taking steroids wa illegal but not speecifically banned.
Under the 5th Amendment you are not required to testify against yourself in a court of law.
Hearsay is permissible in a few circumstances but is generally not recognizrd in a court of law.
not sure why you bring up malice because the incorrect statement does not have to be made with malice. Not one of the criteria for libel. Nor does self incrimination have anything to do with hearsay.

TW do you mean you think they had the right to be given a chance to tell the truth like Mary Jones, Bonds and all the rest of the straight faced liars. An investigative report has an obligation to find and publish facts. I have seen guys convicted of murder on flimsier evidence.
Jones has been striped pf all her madals. No big powerful union to interfere with justice ?

Just a few comments on this topic in general:

Hearsay is a statement, made by someone other than the one who actually made the declaration and is offered in evidence to prove the truth of the matter that is being asserted. In other words, the person testifying is passing on what they heard from another.

There are a multitude of exceptions to the hearsay rule, such that in Court there are so many ways around the rule it is often completely pointless.

More to the point here, this report is hardly only reliant on hearsay. You have the "testimony" of one individual and his actual observations as a direct (perciepient) witness. You have business records (an exception to hearsay) such as cancelled checks, signed package receipts, etc.

As far as defamation, this entire report may fall under the litigation exception rules that basically allow you to say anything and as MLB could argue that potential litigation was a basis for conducting this investigation and prepartation of the report. Also, these players are arguably public figures, allowing them to be "fair game". Further to show defamation it must be shown there was absolutely no reasonable basis to what was being said and with all this I don't believe for one second Clemens or any of these other players is going to go into a court over this.

Beyond all this and the legalities involved is just simple observation. Looking at the enormous if not grotesque change in some of these guys physical makeup. PLEASE tell me how bonds shoe size grew from 10 to 13. Only HGH or a fatal disease (the name of which escapes me) causes such change in an adult human. He for one did it, admitted it but only said he did not know what he was taking, which is just "lawyerspeak" to eliminate the element of intent.

Also a simple tracking of their stats shows performance that is inconsistent with anything that has ever happened in the human experience.

This situation is not unlike any other case of piecing together evidence from various sources, records, tesitimony, circumstances etc. and there is one heck of alot of evidence here, but MLB is not looking to go to court with this.

This is all about the Court of public opinion in which players now named are left to prove it didn't happen. Proving the negative like that is a near impossibility and what does it matter. We believe what we want and proof of the pudding is all those fans in San Francisco and any number on this site that won't believe this is true unless they actually saw the player injecting. No amount of proof is good enough for them. Just as legend has the youngster begging Joe Jackson to "say it ain't so Joe", this all will pass with little to nothing being done other than a few Hall of Fame arguments down the road.

[/QUOTE]Kevin Brown was fingered on "GM suspects steroids." Is that "the goods."[/QUOTE]

That wasn't the only evidence against Kevin Brown, there was more. That was only evidence from an internal memo inside the Dodgers organization suspecting his steroid use.

Interestingly enough, they also had internal memos about LoDuca and steroid use, so it's a smoking gun showing that MLB teams knew or strongly suspected what was going on. Logic would tell you that the Dodgers weren't the only team that suspected or knew what players were doing.

quote:

Originally posted by TRhit:
Doc

Just wait and see what Clemens lawyers do !!!!

Clemens was offered the opportunity to speak with the Commission about the evidence, and refused.

He can do a couple of things.

1. Remain quiet, and fade into the background.

2. Get mad that he was outed while others escaped embarrassment, and start naming names.

3. File a lawsuit, go to court, and have to testify under oath..knowing that he may have to go on the stand because a player like Andy Pettite testifies against him.

Clemens' best options are what's behind Door #1 or Door #2. If he picks Door #3, he may be sunk.

Schilling was given the same invite and he refused as did many other players

My advice to Roger - purely from a business perspective.

Take all the money in your Legal "budget" and redirect it to a really good Public Relations firm.

First, an update on my original question 2 RE: being placed under oath. I read an article in the local paper that said that when at least one of the witnesses was being questioned by Mitchell et al, a "federal investigator" was there to remind the witness that making a "false statement" would have legal implications. Though not as good as under oath, at least it adds a bit more credibility to his statements.

BobbleheadDoll:
Thank you for the explanations in your first post. Though I agree with you in the vast majority of what you said, I do have three points I would like to make. First, the fifth ammendment allows you to refuse to give testimoney or answer questions IN ANY INVESTIGATIVE FORUM whether it be a police interrogation room, a congressional hearing or a quasi-legal creation of MLB; not just it a court of law if, and only if, giving a true statement in answer to a question might incriminate you. Second, hearsay (i.e. an out of court statement offered by someone other than the declarant to prove the truth of the matter asserted) is often allowed in the courtroom under a variety of exceptions (business records, dieng declaration and about 25 other exceptions to the hearsay rule. Third, Malice is required to hold the maker of the libelous statement liable for damages in court if the person libeled is found to be a "public figure". Though some of the more than 80 former and current MLB players named in the report might not be considered "public figures" certainly Roger Clemmens would be. Thus, in addition to untrue statement and damages, Clemmens's lawyers will have to prove malice to win a libel case against MLB, etc. Rent the movie "Absence of Malice" starring Paul Newman and Sally Field for 2 hours of good drama and a through rendering of the malice issue in libel.

With regard to your second post, I mean to say that there are a couple of ways you can do an investigation like this. One is you invite all the players to come and talk to you at first. Then you get a few players, ex-players, trainers, GM's, assistant GM's, whatever to name some players that might have taken steroids, HGH, etc. Now if the first group refuses to talk and the second group implicates about 80 plus of the first group, what do you do? Apparently, unlike Mr. Mitchell who chose to stop right there and write a 400+ page report, I would then contact the 80 plus again and say, "Hey, guess what? Somebody says you were on the juice in 19?? or 200?. Would you like to come in now and deny this if you can?" Now, if the investigation had been conducted like that and none of the 80+ had come in, wouldn't you feel better about the truth of these allegations? I certainly would.

Again, a mess is a mess, of course, of course, unless the mess is made worse, of course, that is, of course, unless a source, talked to Mr. Mitch.

TW344