Roger Clemens Trial, Day One Recap: Former Players’ Testimony Could Be Allowed

Prior to the jury selection, the two sides argued a variety of motions in front of the judge that raised some possible issues for when trial testimony begins. The two biggest issues related to the transcript of Clemens’ testimony and the possibility of former athletes testifying as to their dealings with Clemens’ trainer Brian McNamee.

Congress referred Clemens’ name to the Justice Department for prosecution, and when they submitted his name they submitted a transcript of his testimony as part of their evidence. Clemens’ attorney Rusty Hardin demanded Congress turn over audio of the hearing because he believes the tone and inflection reflected in the audio would impact the case.

The government attorneys told the judge they asked for the tape but the House refused. According to the House attorney present at the trial, it would take a resolution by Congress to get the audio released. In a bit of a tag team, the judge reprimanded the House attorney for hiding behind a technicality but also stated that he would not hold up the case waiting for a resolution. It will no doubt be an issue on appeal if Clemens is found guilty.

The other significant issue concerned the expected testimony of a variety of retired baseball players. Heading into the trial, the testimony was expected to be fairly limited in that the players could not testify about drugs they had admitting receiving from McNamee. Under the Federal Rules of Evidence, all relevant evidence is admissible except as otherwise provided in the Federal Rules. McNamee providing PEDs to other players is relevant to his actions. From those actions one could infer that Clemens also received PEDs, given his relationship to McNamee and these other players.

However, under Rule 403, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues.” Prior to Wednesday, Judge Reggie Walton indicated he was probably not going to allow the testimony of the retired players receiving PEDs from McNamee because a jury might infer Clemens’ guilt based on this evidence.

Wednesday, Judge Walton changed his mind due to one of the very defenses Clemens will raise. According to Clemens’ attorney, the defense plans to attack McNamee by saying he manufactured evidence 10 years ago to blackmail Clemens into hiring him. Judge Walton responded by asking why he wouldn’t also blackmail the other players to whom he gave drugs. If the defense is correct in that Clemens did not use the substances and did not receive the substances, would it not be easier for McNamee to blackmail a person who had actually received the substances?

Based on that issue, Judge Walton decided to allow the players to testify about the PEDs they received from McNamee, so long as that defense will be used by the defense. Given the expected physical evidence of syringes, gauzes and Clemens’ DNA on both, this defense likely remains on the table. If this is the case, the defense will likely look to show vagueries in the players’ testimony or that it is simply an unrelated matter that should not lead to an inference of guilt.