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Evidence excluded in Bonds case

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence.

Only one part of the opinion gave me a pause: She excluded one of three audio transcripts of conversations--the one in which Bonds' trainer, Greg Anderson (the guy whose refusal to testify is the cause of all this) speaks with Bonds' personal assistant about random drug testing for the upcoming (2003) season and seems to suggest that he knows someone at the testing lab and he will be tipped in advance to when, if ever, Bonds will be tested. Judge Illston rejected the government's argument that this is admissible as a statement against interest, because "the government has not established that it was a criminal or civil offense in 2003 to help athletes evade
detection by professional sports associations."

But this seems a bit too quick. If a lab employee were tipping off players (or members of their posses) about upcoming tests, wouldn't MLB have some claim against the lab and the employee (fraud, interference with business expectation, something else (help me out, tort people))? And wouldn't MLB also have a claim against the posse member (in this case, Anderson) who received the tip and passed it along, also frustrating MLB's business expectations? Maybe this just was a matter of what the government brought forward on the motion. But it seems Anderson could have gotten into some trouble by receiving and passing along these tips, such that his admission of it would be against his interest.

Full post as published by Sports Law Blog on February 22, 2009 (boomark / email).