Thursday, July 14, 2011

Limited Utility of a Limiting Instruction

There's plenty of coverage of the mistrial in the Clemens perjury proceedings.  Based on what I've read so far, it appears the offending act was the introduction of inadmissible hearsay.  In a strict legalistic sense, the out-of-court statements by Mrs. Pettitte are relevant to Mr and Mrs. Andy Pettitte's state of mind--a type of evidence that is routinely admitted with simple limiting instructions.  But not so here.  In fact it seems to have drawn the ire of the Court.  Which seems to indicate some larger frustration by the Court with the Government's conduct / theory of the case.  I really haven't followed this case, so any input or correction is welcome, but I'll try to unpack my thoughts below.

The hearsay at issue is Mrs. Pettitte's testimony that her husband had two conversations with her about Clemens using HGH (used her as shorthand for HGH, steroids, or whatever else Clemens is accused of using), which could be multiple levels of hearsay.  On the first level, either Clemens told Andy he uses HGH and/or Andy observed Clemens using HGH.  Neither of those are hearsay as one is a party admission, the other is not an out of court statement.  At the second level, Andy told his wife about Clemens' HGH use on two separate occasions.  The second level are out of court statements, with apparently no applicable exception or exemption.   Thus, the Government cannot use Mrs. Pettitte to prove Clemens used HGH. 

Judge Walton appears to have ruled on a pre-trial motion in limine and excluded evidence relating to Mrs. Pettitte's testimony--though the reporting on this is a bit unclear.  Fair enough.  For the reasons mentioned above, the Government cannot use Mrs. Pettitte to prove that Clemens used HGH.  So when the Government played tapes of Congressional hearings that included statements relating to Mrs. Pettitte's affidavit, the Judge, sua sponte, called a side bar and eventually declared the mistrial.

But that all assumes that the Government was playing the video to prove that Clemens used HGH.  I don't think that's the case at all.  Furthermore, Mrs. Pettitte's testimony would be relevant evidence of both Mrs. Pettitte's and Andy Pettitte's state of mind that they believed Clemens used HGH.  This is fairly routine and courts regularly instruct the jury on the limited relevance of state of mind evidence.  Why didn't the Court do that here?

I suspect the Court had Rule 403 in mind when it declared a mistrial.  My suspicion is that Court's already leery of the Government's case and did not want the jury to conclude that Clemens used HGH based on discussions from the rumor mill.  At least that's how I read Judge Walton's comment that it's too late to "unring" the bell--meaning that even a limiting instruction would not ensure that the jury could use Mrs. Pettitte's testimony as only relevant to a state of mind and not at all relevant to Clemens use of HGH.  The Government just does not have iron-clad evidence that Clemens used HGH, so the danger of improper use of Mrs. Pettitte's testimony is fairly high.  Would the Court have made the same ruling if the Government had videotape of R. Kelly Roger Clemens shooting HGC with his grandma saying "That's my Roger"?  Doubt it.  This all points to an instance of an already weak case creating pressure on the Government to sneak in any evidence of HGH use by Clemens to bolster its case to the point of over-reaching and pissing off the Judge.   

For those studying for the bar, it's a great chance to think about baseball and claim to be learning the hearsay rule.     

11 Comments:

Blogger James said...

It still boggles my mind that anyone cares about what pro athletes do to their own bodies. The fact that Congress spent time on it is ridiculous.

7/14/2011 10:53 AM  
Blogger Armen said...

James, you may not be alone on that. Some of the Judge's comments were directed at the high cost of the case to begin with (not to mention the non-monetary resources such a high profile case consumes). Reading the Court's comments, you can almost sense the utter frustration that a trivial case like this is bogging down his docket, which I'm sure is filled with cases involving far greater criminal offenses against the United States.

7/14/2011 11:06 AM  
Anonymous Anonymous said...

Why is her state of mind relevant?

7/14/2011 11:15 AM  
Blogger Armen said...

Good question. Perhaps that's another reason a limiting instruction would not have worked. If the Pettittes' belief cannot be used to prove that Clemens used HGH, then is there any other theory of relevance left? Again, reading between the lines in the Judge's comments it seems like the Government actually wanted to use the Pettittes to boost the credibility of its key witnesses. To borrow Professor ES's famous relevance chain: Pettittes believe Clemens uses HGH > McNamee's testimony is more likely to be true than not > Clemens used HGH. But that's just an end-run. It is still ultimately being used to prove that Clemens used HGH.

So good question.

7/14/2011 11:24 AM  
Anonymous Anonymous said...

The state of mind exception would not seem to apply here. This situation is exactly what the hearsay rule is designed to exclude.

The evidence is that Andy said that Clemens said that he used HGH. The inner layer of hersay--Clemens's statement--is taken care of by the admission exemption to hearsay. So we need only worry about the second layer--Andy's statement.


The relevance of Andy's state of mind would be that it tends to prove that Clemens used HGH (as a previous poster pointed out, there does not seem to be an alternate theory of relevance).

So the assertion: Clemens used HGH. The relevance: Clemens likely used HGH. The statements are being used to prove the truth of the matter asserted. The fact that state of mind is an intermediate step is true of pretty much any hearsay issue.

The Rule 803(3) state of mind exemption exactly captures this: it removes from the exemption any statement of memory used "to prove the fact remembered or believed . . . ."

Now, if the judge ruled on a motion in limine ahead of trial, the government had an opportunity to assert alternate theories of relevance. And if an alternate theory of relevance came up during the trial-- for example, impeachment via prior inconsistent statement--the prosecutors should have checked with the judge first in order to come up with a limiting instruction.

7/14/2011 12:14 PM  
Anonymous Anonymous said...

(A) It is admissible nonhearsay.

(B) It is admissible hearsay, because an exception applies.

(C) It is inadmissible hearsay, not subject to any exception.

(D) It is inadmissible hearsay, but may be admissible for impeachment.

ANSWER:
(C). The evidence is inadmissible because it is hearsay and no exception applies. Insert multiple paragraphs of bushi explanation here.

7/14/2011 12:34 PM  
Anonymous Anonymous said...

James, I agree that Congressional resources seem to be overspent on the MLB situation.

But I DEFINITELY care what pro athletes do to their bodies. And it boggles my mind that there are sports fans who don't care.

I pay money (or tolerate ads) to watch sports. I want to know if one player is gaining an edge through chemical enhancements. This knowledge helps me enjoy it. Part of the spectacle is admiring the skill or physical prowess of the athletes. I admire an athlete who achieved his level of skill/prowess through discipline and hard work more than one who achieved it by buying medical assistance.

To this end, I also want pro sports leagues to carefully regulate or prohibit the use of medicine—just like they carefully regulate or prohibit the use of equipment.

Caring about what pro athletes "do to their own bodies" is exactly equivalent to caring whether or not Sammy Sosa corked his bats.

7/14/2011 12:48 PM  
Anonymous Anonymous said...

James, I agree that Congressional resources seem to be overspent on the MLB situation.

But I DEFINITELY care what pro athletes do to their bodies. And it boggles my mind that there are sports fans who don't care.

I pay money (or tolerate ads) to watch sports. I want to know if one player is gaining an edge through chemical enhancements. This knowledge helps me enjoy it. Part of the spectacle is admiring the skill or physical prowess of the athletes. I admire an athlete who achieved his level of skill/prowess through discipline and hard work more than one who achieved it by buying medical assistance.

To this end, I also want pro sports leagues to carefully regulate or prohibit the use of medicine—just like they carefully regulate or prohibit the use of equipment.

Caring about what pro athletes "do to their own bodies" is exactly equivalent to caring whether or not Sammy Sosa corked his bats.

7/14/2011 12:49 PM  
Blogger Armen said...

12:49, Norm MacDonald had a bit about this, back when he had his show, to the effect that all great advances in sports are based on someone cheating. "Think about the first guy who stole second base...CHEATER."

7/14/2011 12:51 PM  
Blogger James said...

Sure, but that should be a non-criminal issue between the league and the player. To play in x league the player has to abide by the rules of x league. Pretty simple.

Additionally, athletes are constantly looking for ways to gain an advantage. They all work hard and train hard. You can't get to the level of Bonds or Maguire without working hard and training hard. Many players use enhancements/supplements and many of them use ones that are banned. This is why I am not bothered when I turn on the TV and see some dude hit a home run who may or may not have taken steroids.

7/14/2011 3:12 PM  
Anonymous Anonymous said...

I haven't been following the case, but from what I read, the judge was angry that the AUSA was using the inadmissible hearsay to bolster the credibility of Pettitte.

7/14/2011 6:22 PM  

Post a Comment

Links to this post:

Create a Link

<< Home