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Legal Commentary

: Prawfs

Steroids and the Rules of Evidence

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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So if yesterday was about party politics and adversarial v. inquisitorial procedure, today is about evidentiary questions coming out of the steroids madness. McNamee has accused four people of using HGH or steroids: Clemens, Andy Pettite, Chuck Knoblack, and Debbie Clemens (Roger's wife). And in the discussion over McNamee's credibility, much is being made of the fact that three of the four people (everyone but Roger) he has accused have admitted to taking drugs--that is, they have acknowledged that McNamee told the truth.

So, the question: What is the relevancy and admissibility of the fact that three accusations have been true to either the truth of his accusations against Clemens or his credibility? My preliminary take is:

a) Irrelevant for any substantive purposes relating to the truth of the allegations against Clements (for purposes of either a defamation claim or a perjury charge).

b) Admissible under 608(b)(2) (or the Texas equivalent) if Clemens puts on a reputation witness to attack McNamee's character for truthfulness. That witness could be cross-examined about specific instances of truthful conduct by McNamee.

What am I missing?

Full post as published by Prawfs on February 14, 2008 (boomark / email).

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