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Roger Clemens trial: Gov Reply to Objections

Roger Clemens trial: Gov Reply to Objections

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Published by Lee Davis
Government's reply to Clemens' objection to testimony at trial
Government's reply to Clemens' objection to testimony at trial

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Published by: Lee Davis on May 01, 2012
Copyright:Attribution Non-commercial


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The United States of America, by and through its attorney, the United States Attorney for theDistrict of Columbia, respectfully submits this reply to defendant’s evidentiary objections to thegovernment’s exhibit 2 series and exhibit 3 series (Docket No. 127). In support of the government’sreply, we submit the following.
I. Procedural Background
As we previously mentioned in our Notice of Party Disagreement on Rule 106 Grounds(Docket No. 126) the government informed the defense of changes to the exhibits we intended tointroduce at trial. On March 27, 2012, the government released to the defense a disk containingthose exhibits, including portions of recorded statements for their review. On April 11, 2012, thedefense provided the government with its proposed additions to those portions of recordedstatements. On April 17, 2012, the defense verbally informed the government of two or threeunspecified hearsay objections to the recorded statements the government intended to introduce. Onthat same date, the government informed the defense of the importance of advance notice of their objections due to the time and resources needed to modify these recorded statements. On April 19,2012, at 7:00 p.m., on the eve of trial, where the introduction of these exhibits will soon commence,
Case 1:10-cr-00223-RBW Document 128 Filed 04/22/12 Page 1 of 8
the defense raised their objections, based on hearsay grounds, to the government’s exhibit 2 seriesand 3 series. The defendant’s objections to these exhibits are without merit and should be denied
 by this Court.
II. Authorities and ArgumentsA. The Recorded Statements Are Not Hearsay
A trial court has “wide discretion to admit or exclude evidence where the question is one of relevance or materiality.” United States v. Morgan, 581 F.2d 933, 936 (D.C. Cir. 1978)), cert.denied, 120 S. Ct. 81 (1999); Brooke v. United States, 385 F.2d 279, 286 (1967). A trial court’sruling upon the relevancy of evidence similarly “depends upon the exercise of the sound discretionof the trial judge and will not be disturbed upon appeal except for grave abuse.” Hardy v. UnitedStates, 335 F.2d 288, 289 (1964). Harper v. United States, 239 F.2d 945 (1956).As a general rule, hearsay is not admissible in federal courts. Fed. R. Evid. 802. “ ‘Hearsayis a statement, other than one made by the declarant while testifying at the trial or hearing, offeredin evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). But such a statementmay be admitted to serve a non-hearsay purpose, such as elucidating a speaker’s or a listener’s stateof mind, United States v. Sesay, 313 F.3d 591, 599 (D.C. Cir. 2002), or providing backgroundinformation, United States v. Gatling, 96 F.3d 1511, 1524 (D.C. Cir. 1996). See also Fed. R. Evid.801(c) Advisory Committee Notes to 1972 Proposed Rules (noting that “verbal conduct which isassertive but offered as a basis for inferring something other than the matter asserted, [is] excludedfrom the definition of hearsay by the language of subdivision (c).”); D. Binder, Hearsay Handbook,§ 2.9 at 2-27 (4th ed. 2001) (“An out-of-court assertion, regardless of its truth, may imply ...The defendant’s objections to these exhibits are attached to this pleading as Exhibit A.
Page 2 of 8
Case 1:10-cr-00223-RBW Document 128 Filed 04/22/12 Page 2 of 8
emotional feeling, or other particular state of mind of the declarant. If offered as circumstantialevidence to prove such state of mind, the assertion is not hearsay.”) As with all evidence, however such a statement, when offered for a permissible non-hearsay purpose, must be relevant to a “fact... of consequence” in the case. Fed. R. Evid. 401; see also Sesay, 313 F.3d at 599-600; UnitedStates v. Evans, 216 F.3d 80, 87 (D.C. Cir. 2000). Relevant evidence is anything “having anytendency to make the existence of any fact that is of consequence to the determination of the actionmore probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Even if the evidence would not by itself suffice to show a defendant’s guilt, the fact that it assists the juryin determining a matter of consequence is sufficient to show relevance. However, even if evidenceis relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. In the instant case, the recorded statements contained in thegovernment’s exhibit 2 and 3 series are not offered for the truth of the matters asserted. Therecorded statements are not hearsay and should therefore be admitted. We address the admissibilityof each recorded statement below.
Exhibit 2a and 2a-1, page 4 lines 3 to 5
The defense objects to the following portion of the exhibit: “This is a deposition in thecommittee’s investigation into the illegal use of performance-enhancing drugs in Major LeagueBaseball.” The government does not seek to introduce this statement for the truth of the matter asserted. The statement is background evidence prefacing the series of questions to be asked of thedefendant. The government will prove the nature, purpose and scope of the congressional inquiry by other evidence, separate and apart from this recorded statement. This recorded statement simply provides context to the defendant’s answers provided during the deposition.Page 3 of 8
Case 1:10-cr-00223-RBW Document 128 Filed 04/22/12 Page 3 of 8

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