In mid-April the Government announced changes to the evidence it would be presenting and handed over computer disks containing the altered exhibits to the defense. Clemens’ attorneys then verbally objected to a few of the exhibits for hearsay issues a few days later. On the eve of trial, the defense formally objected to the Government’s Exhibit 2 series (Deposition testimony of Roger Clemens) and Exhibit 3 series Mitchell report evidence. The Government argues the objections are without merit and believe they should denied by the Court.

To begin, the Government argues the statements are not hearsay. They point out that trial courts have wide discretion to admit or exclude evidence and that a ruling of relevancy is rarely disturbed except in cases of obvious abuse. The defense then explains that hearsay, statements made out of court offered to prove the truth of the matter asserted, are not admissible in federal court. However, such statements may be admitted to serve a non-hearsay purpose such as getting at a person’s state of mind or providing background information. If admitted for a non-hearsay purpose then the evidence must be relevant to a fact of the case. Relevance is anything that has a tendency to make the existence of a fact more or less probable.

The Government then argues that Exhibits 2 and 3 are not offered for the truth of the matter asserted and as such are not hearsay and should thus be properly admitted. The defense objects to the exhibits including selections from a deposition in the committees’ investigation into the illegal use of drugs in Major League Baseball. The Government argues that none of the statements contained are hearsay, but are instead background evidence and will be used only to provide context to the defendant’s answers.

Furthermore, according to the Government the seven statements objected to by the defense are relevant and not unfairly prejudicial to Mr. Clemens. The Government argues that the statements, when considered as part of the whole, will assist the jury in determining the matters before it. They help flesh out the full meaning of the questions posed in the deposition and assist the jury in understanding the answers given. Moreover, the Government argues that the Rule of Completeness allows Clemens’ attorneys to introduce statements favorable to him that complete the overall exchange that took place during the deposition between Clemens and congressional committee members.

The Government argues each statement should be admitted as evidence and shown to the jury. The fight this week will be over whether the defense can convince the judge that the evidence is either hearsay or so prejudicial that the probative value of the evidence is outweighed by the danger of harm it could cause. Only time will tell who wins this round.

Roger Clemens trial: Gov Reply to Objections

(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)