December 14, 2007

posted by Jeff Lipshaw

"McNamee stated that Clemens asked McNamee to inject him. Now Clemens is the declarant. But the statement is not being offered for the truth of an assertion. It is being offered for the fact of the request itself, which would seem to be relevant to the question whether Clemens knowingly used a steroid."

This is true, but I would suggest a further point of clarification about this often misunderstood situation. Not only was the statement not being offered to prove the truth an assertion, commands "Inject me with steroids" and questions "Would you mind injecting me with steroids” have no truthful content. Therefore, such statements are never hearsay.

Additionally, admissions by a party-opponent are not hearsay. Rule 801(d)(2). In this context, you have to assume that Clemens is a party to the theoretical "trial or hearing." If that's the case, your second and third bullet points are excluded from the definition of hearsay.

Jeff: Thank you for writing this. I was screaming at ESPN last night everytime Peter Gammons and John Kruk (?) threw the word "hearsay" around without having the first clue what it means. Oh, watch for improper use of the phrase "circumstantial evidence." If McNamee testifies that he injected Clemens with steroids, that is *direct* evidence that Clemens used steroids.

Even if Clemens were not a party and even if these statements were offered for their truth, assuming that there was a case in state court in Clemens' home state of Texas, his statements would be admissible under Texas Rule of Evidence 803(24) as statements against interest. Furthermore, unlike its federal counterpart, Texas' version does not require the declarant to be unavailable, and the statement merely needs to be one that would "make the declarant an object of hatred, ridicule, or disgrace."

http://www.courts.state.tx.us/rules/tre/tre-all-010107.htm#RULE803

One of my students (whose comment here for some technical reason can't be posted) writes: "You wrote: "McNamee's statement that he personally injected Clemens is not hearsay. The declarant is McNamee. He is describing an act, not a statement." Since when is describing an act not a statement? McNamee is making an oral assertion (801(a)) to Mitchell's team that he injected Clemens. "McNamee stated that Clemens asked ..."
"Clemens told McNamee that ..." "Jose Canseco told Mitchell that ..." All these are double-hearsay. While Clemens' and Canseco's statements may not be hearsay for the reasons you stated, that doesn't address McNamee's statements to Mitchell's team. Each link of hearsay within hearsay needs to be addressed under 805, and McNamee's statements to
Mitchell are the problematic ones (see above)."

I don't vouch for these statements, but I thought they deserved airing!

Dave, I think your student would be correct if I looked at Mitchell as another witness. But I don't. He is the fact-finder. He is the one assessing McNamee's credibility and deciding that McNamee's statements about the circumstances should be believed. So the evidentiary logic ends at Mitchell.

The appropriate way to assess Mitchell's report is the way we would assess the judge's opinion. It's no longer an assessment of the probativeness and reliability of evidence, but his treatment of it.

Having said all of this, my greatest fear is that one of my deans sees this and somehow I get roped into teaching evidence. But I'm sure Jack Friedenthal is smiling somewhere.

Don't forget admission against interest - whether a "party" or not, such a statement would be admissible. Of course, if steroids were not outlawed at the time, it is difficult to say that the statement was "against interest", though perhaps a "public opinion" argument could be made.

Also, I think this statement is a bit of a stretch: "At some point, according to the report, Clemens told McNamee that the steroids "had a pretty good effect on him." Again Clemens is the declarant. The statement is not being offered for the truth of the assertion that the steroids did or did not have a good effect. The statement is being offered for the fact of the statement, which is relevant to whether Clemens used the steroids."

I don't know how a court comes out on it, but if the statement is "The steroids worked [and implicitly this means that I used the steroids]" then the statement would likely be viewed as having been offered for the truth of the matter.

If Clemens is not a "party," the statement against interest exception works only if he is "unavailable" (except apparently, in Texas).

The statement "The steroids worked" implicitly contains two assertions: a) "I took steroids" and b)"They had a good effect." Both are offered for the truth of the matter and not just that the statement was made.

Could the statement that "the steroids had a good effect" be considered either a statement then-existing physical condition or a statement made for purposes of medical treatment? If steroids have a long-term effect, then the statement that they "had" a good effect would describe the declarant's current condition. And if he made that statement to the person who injected him, it may have been as part of a discussion about whether to continue.

I'm persuaded that the "steroids had a good effect" question is closer than when I put the post up. I suspect the issue rarely comes up in the pure form - whether the statement is hearsay in the first instance - because it is much easier to deal with it either as a party admission or under one of the exceptions. My intuition keeps telling me that something about the statement is probative, and testable merely by cross-examination of McNamee. But it's going to be a rare case that the declarant's conduct is at issue, but he's not the defendant!

"If Clemens is not a 'party,' the statement against interest exception works only if he is 'unavailable'"

True enough - I was viewing Mitchell as the factfinder, and if they did not or could not interview Clemens, then I was considering him "unavailable."

"I suspect the issue rarely comes up in the pure form"

It actually comes up quite a bit in email chains where one or more of the people in the chain is unavailable. The question is how much of the embedded email to take as "truth" and how much to try to get in under exception, context, tacit or explicit acknoweldgement by a party, etc.

I don't think it could be medical diagnosis, but I think Jennifer's argument for existing state of mind might work--he is describing his current feeling based on past treatment. I guess it is comparable to someone who just has surgery saying "The surgery was a success"--he is telling us how he presently feels.