EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 9, 2007

Unseen Terror: Former AUSA's Statement Should Be Admissible Against Him

In 2003, former Assistant United States Attorney Richard Convertino (along with former State Department secuirty officer Harry Raymond Smith III) won the United States' first post-9/11 terror trial when he convinced jurors that two North African immigrants were part of a terrorist conspiracy.

Now, the two men will soon be on trial in Federal District Court in Detroit on charges that during that case they obstructed justice and made materially false declarations (and were engaged in a conspiracy to commit those crimes).  The charges against the men stem from the allegation that they lied to cover up the existence of photographs and other evidence that would have weakened the case against the immigrants.

In a pre-trial motion last Friday, Convertino's lawyers sought to have the judge exclude a statement that Convertino allegedly made to his boss after the terror trial judge hearing the case against the immigrants ordered a review of the case.  Allegedly, Convertino told his boss that the review was terrible because it would overturn the case and investiagtors would "find stuff."

Convertono's lawyers are arguing that the alleged statement should be excluded because it constitutes hearsay and is unfairly prejudicial.  A quick look at the Federal Rules reveals that Convertino will have more difficulty winning this argument than the terror trial.

Federal Rule of Evidence 801(d)(2)(A) says that a when a party's own statement is offered against him at trial, it is an admission and not hearsay.  Convertino is the criminal defendant and thus a party, and his statement would clearly be offered against him to prove cognizance of his wrongdoing and the wrongdoing itself.

Furthermore, Federal Rule of Evidence 403 states that a judge may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.  Convertino's statement is highly probative because, as noted, it both proves cognizance of his wrongdoing and the wrongdoing itself.  Furthermore, while Convertino's statement is prejudicial to him, it is hard to say it is unfairly prejudicial because it is his own statement.  Therefore, his admission will almost certainly be admissible against him at trial.



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