EvidenceProf Blog

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

Wednesday, December 26, 2007

Corruption Corruption Corruption: Key Witness' Death Weakens Massachusetts Case Against Lawrence Trapasso

Massachusetts' corruption case against Lawrence Trapasso, a former Worcester city elections commissioner and a former state auditor's office staffer, was dealt a body blow after key prosecution witness Michael Bordeau died when his snowmobile collided with a tractor-trailer on Interstate 84 last Friday.  Allegedly, Bordeau had told authorities that he paid Trapasso $4,000 to make a drunk driving case against him "go away" and was later acquitted.  As former Massachusetts Bar Association President Edward Ryan has correctly noted, unless a defense lawyer got a chance to cross-examine Bordeau before his death, his statements will likely be inadmissible.

Ryan's statement is correct for a few reasons.  First, Bordeau's statements to the authorities were likely "testimonial" because they were almost certainly made with the expectation and under circumstances suggesting that the statements would eventually be used in a criminal prosecution.  Thus, Trapasso's rights under the Confrontation Clause would be violated pursuant to Crawford v. Washington, 541 U.S. 36 (2004), if Bordeau's statements were admitted at trial against him when he was not able to cross-examine Bordeau.

Second, while it is unclear from the articles on the Trapasso case, it seems as if Bordeau might have given grand jury testimony against Trapasso.  If this were the case, Bordeau's testimony could potentially have been admissible under the former testimony exception to the rule against hearsay contained in Federal Rule of Evidence 804(b)(1) and Massachusetts case law, which states that "[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."  As is indicated in that rule, however, the party against whom the testimony is offered (Trapasso) must have had the opportunity and a similar motive to develop Bordeau's testimony by cross-examination, confirming Ryan's statement.

As I looked through Massachusetts' case law on former testimony, I found an issue that has always interested me.  In Commonwealth v. Rodriguez, 792 N.E.2d 131, 139 (Mass.App.Ct. 2003), a Massachusetts court addressed, but did not resolve the issue of whether a defendant can use the "former testimony" of a prosecution witness given at grand jury proceedings when that witness later becomes unavailable for trial.  Because grand jury proceedings typically don't have traditional cross-examination, it is well established that the prosecution can't use the "former testimony" exception to present the grand jury testimony of now unavailable government witnesses at trial.

However, what if the prosecution calls a witness at grand jury proceedings, and that witness gives testimony which is actually more damaging than helpful to the proseuction's case?  In that case, would the prosecution have had an opportunity and similar motive to develop the witness' testimony during the grand jury proceedings, making the "former testimony" exception applicable?  The Supreme Court addressed, but did not resolve this issue in United States v. Salerno, 505 U.S. 317 (1992).  That said, most courts which have addressed the issue have not found the exception applicable.  See, e.g., United States v. Omar, 104 F.3d 519 (1st. Cir. 1997).  These decisions make sense to me because of the lower burden of proof at grand jury proceedings vis a vis a trial.  The prosecution may call a witness at grand jury proceedings and find it unnecessary to impeach or challenge testimony the witness gives that damages their case because they know that they have a low burden of proof to get the case to trial.  Conversely, at trial, knowing that they have to prove guilt beyond a reasonable doubt, the prosecution would have a different, and greater, motive to challenge this testimony.



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