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Univ. of South Carolina School of Law

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Friday, February 15, 2008

Rocket Man: Clemens-McNamee Soap Opera Highlights Distinctions Between Texas And Federal Rules Of Evidence

The Roger Clemens-McNamee soap opera is a good place to point out 2 divergences between the Federal Rules of Evidence and the Texas Rules of Evidence.  Over at PrawfsBlawg, Professor Howard Wasserman notes that "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."  Wasserman then gives his preliminary take that, inter alia, the fact that three accusations have been true would be "[a]dmissible 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.

Federal Rule of Evidence 608(b)(2) does, under certain circumstances, allow for cross-examination about specific instances of truthful conduct, although it allows for no extrinsic evidence of such instances if the witness denies (knowledge of) them.  Texas Rule of Evidence 608, however, indicates that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence."  Therefore, the fact that three accusations have been true would be inadmissible in  a case heard under the Texas Rules of Evidence.

The second difference involves the statement against interest exception to the rule against hearsay.  Under Federal Rule of Evidence 804(b)(3), if the declarant is "unavailable" at trial, "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

However, under Texas Rule of Evidence 803(24), whether or not the declarant is available at trial, "[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true." (emphasis added)

Thus, the two key differences between the two rules are that the federal rule only allows for the admission of "statements against interest" when the declarant is unavailable and when the statement exposes the declarant to liability or harms a claim or interest; the Texas rule don't require witness unavailability and catches a wider range of statements under its purview.  Now, if both Clemens and McNamee are parties in a case in Texas, these differences are meaningless because the rules regaring party admissions would govern.  If, however, Clemens or McNamee brought a defamation against against a newspaper or some other entity and the other were not a party, these distinctions could be very relevant.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/02/rocket-man-clem.html

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