EvidenceProf Blog

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

Friday, December 21, 2012

Hit & Miss: Rules 104(b), 404(b), and the Hall of Fame Cases of Players From Baseball's Steroid Era

I remember the summer of 1999 like it was yesterday. After graduating from UVA, I was working at Cascino Vaughan Law Offices, Ltd during the day and teaching LSAT prep classes for Princeton Review at night. The law firm had season tickets for the Chicago Cubs, which they occasionally gave to clients. Other times, employees were free to go to the games as long as we got our work done. Like today, the end of 1999 was supposed to be the end of the world, then based on Y2K. Like Peter Gibbons in "Office Space," my job was to change every "99" in the firm's computer code to "1999."

1999 was the year after Mark McGuire and Sammy Sosa "saved" baseball as they simultaneously tried to break Roger Maris' single season home run record. 2000 was the encore as each men again exceeded the mark set by Maris back in 1961. At the time, it seemed beyond question that both of these men would eventually be enshrined in Cooperstown as members of the Baseball Hall of Fame.

Twelve years later, the situation is markedly different. Now, it is well recognized that both players were members of baseball's steroid era, and the question has become the extent to which HOF voters can infer that HOF nominees were juicing themselves and juicing their stats.

In When Can The Baseball Writers For The Hall Of Fame Consider Cheating Through PED Use, Or Not?, written for MLB ReportsWes Porter and Dan Dressman seek to answer it. And the answer, according to the authors, is to look at Federal Rule of Evidence 404(b) and Federal Rule of Evidence 104(b). They contend that

By analogy, the rules that apply in a court of law can assist the writers with, at least, this threshold question: can the writers consider the PED use, at all, given what we know now?

Before a jury decides a case on the merits, the trial judge often makes preliminary determinations about what is appropriate to the jury’s consideration.  The rules of evidence guide the judge and govern which information the jury may consider at trial, or not.  More specifically, most jurisdictions have a rule governing whether the jury can consider, for a specific purpose, "other crimes, wrongs or acts" of the person on trial (popularly referred to as "bad acts" evidence).  Applying the trial judge’s preliminary determinations to this evidentiary rule about bad acts, by analogy, will assist the writers with the continuum of proof and suspicion about cheating and PED use. 

The analogy goes as follows.  The baseball writers voting on this year’s class for the HOF are the jurors and, as such, must decide the ultimate issue of induction into the Hall on the merits of the candidate’s statistics (their ability).  This year, if the candidate cheated and used PEDs (that is, a "bad act" occurred), for the specific purpose of evaluating the HOF’s integrity standards, then the writers will decide if, and to what extent, that information bears on their vote for admission into the Hall. 

In a court of law, the trial judge, with his or her legal training and years of experience, would make the preliminary determination when the proof of the "bad act" is sufficient for the jury’s consideration, or not.  Our judicial system cannot bog down with many "mini-trials"to determine whether the other act occurred.  Instead, the rules permit the judge to uniformly decide – for all jurors – whether a "reasonable juror" could find that the bad act occurred.  If yes, then the jury may consider it; if no, then the jury may not consider it – at all.  

So, the analogy is as follows: If, say, a prosecutor tries to introduce evidence under Rule 404(b) that a defendant on trial for safecracking cracked a safe in the past to prove that he knew how to crack a safe, the judge would first have to determine whether a reasonable juror could find that the defendant cracked the prior safe by a preponderance of the evidence under Rule 104(b). So, when is this Rule 104(b) test satisfied for the reasonable HOF voter? Take a look at the article to find out.



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