Clemens and the Rules of Evidence: A More Absolute View

The whole Roger Clemens story has been a big Claude Raines Moment: "I'm shocked, shocked, to find that a Major League Baseball player cheated on his wife."

But I am going to take a more absolute view than Michael did: There is no way, if the judge is not asleep at the switch, that any evidence about Clemens' alleged affairs with McCready or Paulette Dean Daly is admissible.

It cannot come in for any substantive purpose. First, as Michael notes, any effect on Clemens' reputation from these statements came after McNamee's statements and the Mitchell Report and damage to reputation must be measured from the time of the libelous statements. Second, McNamee's statements damaged Clemens's professional reputation--his status as the greatest pitcher of his generation--and his reputation for marital fidelity has nothing to do with that professional reputation. Third, character is not the same thing as reputation. So the fact that damage to reputation is an element of Clemens' claim does not open the door to a lot of evidence that shows nothing more than that Clemens is a bad person (bad husband, etc.). And that is before we even get into the question of unfair prejudice.

Nor can it come in for impeachment/credibility purposes. Even assuming Clemens did have sex with McCready when she was underage, he never was convicted on statutory rape or anything similar and he is not going to be, since, as Michael noted, the statute of limitations has run. The only thing that can be used for credibility is the fact of conviction, not details of the underlying conduct. So, if there was no conviction, this is not in play.

Specific instances of conduct also can be used for credibility, but subject to key limitations that will keep evidence of any affairs from being admitted. First, the rules only allow evidence of conduct that is probative of a witness' truthfulness or untruthfulness--meaning past lies or untruthful acts. Marital infidelity is kind of a gray area. Cheating on your spouse (the actual act of having an affair, apart from what he told his wife or anyone else about the affair) is not really an untruthful act--it does not involve falsehood. Cheating involves breaking a promise--a contract, if you will--but breaking a contract is not per se an untruthful act. And for all we know, Debbie Clemens knew about the affairs and maybe even acquiesced. We refer to cheating as being "false, but I think that is more a colloquial usage than a legally accurate one. It is sleazy, morally frowned upon, and makes people think that the actor is sleavy and immoral--but credibility is only about character for truthfulness, not character generally. Now, whether he lied about the affair when asked about it (by the press, by his wife, by whomever) is a different story and could be used. So, too, is whether, he lied to either woman about being married when he began the affair.

But that runs into the second limitation. Under the rules, instances of untruthful conduct only can be asked about on cross-examination of the witness being impeached (Clemens) or another witness called to testify to Clemens' truthful character; they cannot be "proven up" by other evidence besides the target witness' testimony. So, at most, McNamee's lawyers could ask Clemens if he had an affair with McCready or Daly (or if he lied to his wife about having an affair with them). If Clemens denies the affair on the stand, that is the end of the inquiry. The lawyers are stuck with the answer and cannot bring in any outside evidence to show that Clemens is lying on the stand right now (to "complete the impeachment"). So do not expect McCready or Daly to be called as a witness. And do not expect to hear any of the details of any affairs. None of that is coming in.

One More Thought: Any FIU College of Law students planning on taking Evidence next spring: Take careful notes.

Posted in: