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The Bonds Tapes

By Jeffrey Standen

Today much of the evidence the federal government will present against Barry Bonds in his perjury trial was unsealed. I have yet to have a chance to review the entire file (I have a day job), but one piece of evidence in particular has received the pointed attention of the press: a tape recording of a conversation made by a business associate of Bonds. The tape contains statements by Greg Anderson, Bonds' former trainer and alleged steroid supplier, describing the process by which Major League Baseball was to test Bonds and containing Anderson's prediction that his substances would prove undetectable. This evidence, of course, is pretty damaging to whatever credibility Bond's protestations of innocence retain in the court of public opinion. In a court of law, however, where this drama will be played out, the tape will likely be of no moment. At least if the judge is awake.

This recording is not admissible, at least under the theory the major sports media is discussing. It's not even close.

1. First, put aside issues as to the sketchiness of the recording; I listened to it and had trouble discerning the words. (And TSLP, with eyesight possible only through the thickest of lenses, hears like a bat.) The recording is of a conversation, with typical interruptions and half-sentences, that undoubtedly was aided by gestures and inflections to help convey meaning, all of which is lost on tape. Even if we could parse its words, the conversation, we are told by the national media, is hearsay. The tape would be offered in evidence to prove the truth of its contents, specifically, that Anderson did know how to create a drug to beat the MLB testing system. From this contention the jury could plausibly conclude that Anderson put that knowledge to use in aiding Bonds. Hearsay is inadmissible.

2. Unless the hearsay fits one of the many hearsay exceptions. Only one exception seems reasonably appropriate, and that is the exception for statements against interest. But like most shorthand labels, the phrase "statements against interest" is misleading. A statement against interest requires more than that the statement be against interest in some general sense. One requirement is that the statement is only admissible if the declarant, i.e., the person who uttered the words (Anderson), is "unavailable" in a legal sense. In a perplexity typical of the law of evidence, a person who is sitting in the front row of the courtroom can be legally unavailable, for example if that person's testimony falls under an evidentiary privilege. In this case, the prosecution will argue that Anderson, although dragged to the courtroom and sitting in a pink jumpsuit with a number across its back, is unavailable due to his unwillingness to testify. But what if Anderson stops refusing to testify and takes the stand, and then testifies that he genuinely does not recall the details of this particular conversation with the business associate? Indeed, Anderson may well recall having the conversation but may not recall the particular statements made during the conversation. It is unlikely the conversation was significant to him at the time, thus making his vague memory quite probable. If Anderson can recall having the conversation, even if he cannot recall its details, then Anderson is no longer an unavailable witness. The tape recording would be inadmissible.

(3. Indeed, were Anderson really willing to do anything, as it appears, to help Bonds, then he should take the stand and testfy as I've described, to render the damaging tape inadmissible. But I'll put this in parentheses so that Anderson, if by chance he's reading this, will skip over the parenthetical comments. The state could try to use the tape to impeach Anderson's claim of forgetfulness, but remember, all this assumes the judge is competent: no judge would allow the prosecutor to put damaging inadmissible hearsay in front of the jury just for impeachment purposes.)

4. Now let's assume Anderson refuses to testify, as he has all along, and thus is not "unavailable" in this legal sense. Would the tape be admissible as a statement against interest now? No. To be admissible in this case, the statement must be against the declarant's penal interest; that is, the interest of Anderson, not Bonds. In fact, the statement must be so far contrary to the declarant's penal interest that no reasonable person would have said it unless it were true. Does Anderson's rather deadpan description of the dates for MLB's urine tests so far subject Anderson to criminal liablitity that no one would utter those statements unless they were true? The statements barely subject him to criminal prosecution at all; I would bet many players and agents (even innocent ones) gave some thought to MLB's rather odd testing procedures. Clearly, Anderson's statements that the drugs he designed would be undetectable (if that's what he said; it's hard to discern) are more problematic. Yet it is not illegal to design drugs that happen to be undetectable. The statements are incriminating, yet do they so far subject Anderson to criminal liability that we can believe he wouldn't have said them unless they were true? Might he just have been bragging, or even making something up entirely, just to impress a person (the business associate) who obviously appeared not to know the very first thing about performance-enhancing drugs? This part of the conversation, a very small part by the way, does appear mildly incriminating, but seems to fall short of the stringent demands of the law.

5. I'll admit I'd prefer to see the government and everybody else just leave Bonds alone at this point. His career is over and he'll have to live with his public shame forever, as will Mark McGwire. So I hesitate to help the prosecution. But it's an honest blog, so here goes: the media legal experts are wrong, not just about the hearsay exception. They're wrong about the statement being hearsay. It's not hearsay. The prosecution would be foolish to concede that it is. The conversation between Anderson and Bonds' business partner was a conversation among conspirators, all a part of the conspiracy between Bonds, Anderson, the business associate and who knows whom else to get Bonds pumped up and hitting home runs and to get themselves rich. Statements made during and in furtherance of a conspiracy are admissible against all co-conspirators. To make this work, all the prosecution would have to offer is some proof that Bonds himself was part of the conspiracy. Hard to do? Under federal evidence law, the statements themselves can be used to prove that Bonds was part of the conspiracy the statements further. The statements can be used to justify the statements.

If you understand that point, you should be in law school.

Full post as published by The Sports Law Professor on February 05, 2009 (boomark / email).