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UPDATE: Judge in Bonds trial calls newly-discovered tape “almost entirely inadmissible or irrelevant”

Apr 4, 2011, 8:19 PM EDT

Barry Bonds

UPDATE:  Judge Susan Illston said in court today that the tape prosecutors claim will rebut the damaging (to the prosecution) testimony of Dr. Arthur Ting is “almost entirely inadmissible or irrelevant.” She added that the contents of the tape “were not very substantive,” and that “almost all of this is people’s comments being driven by what is said to be newspaper articles and news reports” from around the time of the BALCO raid, which makes it less evidence than commentary.

There has not yet been a ruling — everyone is waiting for a full transcript — but based on the judge’s comments it seems highly unlikely that the tape will come into evidence. What’s more, given that the revelation of the tape led to a broader argument in court today regarding the prosecution’s seeming failure to turn over various bits of evidence to the defense, the entire affair could end up being worse for the prosecution than if the tape had never turned up to begin with.

1:35 PM:  Remember a couple of hours ago when I said that the testimony of Barry Bonds’ doctor, Arthur Ting, was devastating for the prosecution?  Yeah, well, things could turn the other way quickly: prosecutors revealed today that they have a tape that they believe will contradict his testimony from Thursday in which he said he never talked about Bonds’ steroids use with Steven Hoskins.

We don’t yet know what’s on the tape, but the prosecution certainly wouldn’t bring it up if it was bad for them. Well, at least I think not, because I would have assumed that they wouldn’t have called Ting in the first place unless they knew what he was going to say, and given that they didn’t immediately treat him like a hostile witness and confront him with all of this last week suggests that they were just as surprised as anyone else.

The judge is going to take the tape under advisement and rule on its admissibility. Criminal procedure is not my strong suit — so help me IdahoMariner and others with more crimlaw experience than me — but generally you can’t just trot out new evidence like this so late in the game unless it’s newly discovered (and even then not always), exculpatory for the defendant (thus protecting his due process rights) or so damn important that the injustice of not allowing it would outweigh the injustice of letting it lie. It’s unclear from the reports I’ve seen if this truly is new or merely newly relevant in light of Ting’s testimony, so it’s hard to see how this cuts.

If it shows that Ting lied, however, or even if it showed that his memory about conversations regarding Bonds’ steroids use was faulty, it would seem to snap Steve Hoskins’ credibility back into shape. And could even cause the jury to infer that perhaps Ting was trying too hard to help Bonds, depending on what they think of the cut of his jib. That would be a bad thing indeed for Bonds.

The court is in recess now and will be back later this afternoon. There will be no testimony today, however, because a juror got sick.

  1. The Dangerous Mabry - Apr 4, 2011 at 1:46 PM

    How do you just all of a sudden find a 6 year old tape just at the moment when you need it? I mean, it certainly sounds awfully fishy to this layman.

    • cggarb - Apr 4, 2011 at 1:54 PM

      They probably knew they had it. It just wasn’t relevant before. A video that has Ting saying, “I talked to Hoskins” isn’t evidence of anything. But once Ting says the conversation *didn’t* take place, they dig out the video . . . and discredit their own witness.

      (To shift sports metaphors), this is the legal equivalent of challenging a fumble call after a sack. Even if you succeed, you basically just mitigate a lousy position.

      • clydeserra - Apr 4, 2011 at 2:28 PM

        but wouldn’t that be discoverable in the first place? If they knew or should have known what it said, they should have used it when Ting was testifying

  2. cggarb - Apr 4, 2011 at 1:51 PM

    Presumably, this is impeachment evidence, no?

    It’s an odd situation, which I looked at a couple times in my prior life (civil context). At least as I recall it (again, civpro, CA), you don’t have any obligation to disclose pure impeachment materials, really ever. You can basically hold it in your back pocket indefinitely.

    That said, there’s probably nothing so intentional going on here. You rarely, if ever, offer a witness with the intention of later impeaching his own testimony. They probably freaked out after Ting’s testimony, and some member of the prosecution team remembered a statement Ting made on video somewhere.

    • chrisny3 - Apr 4, 2011 at 2:02 PM

      No, according to Fainaru-Wada, the government just learned of the recording last night. Apparently, Hoskins wasn’t happy about being contradicted by Ting on Thursday, so he dug through his old recordings and found something which supposedly supports his version of events, then turned it over to the government just yesterday.

      No matter what the new recording shows, or whether or not Ilston allows it into evidence, I’m not sure that Ting’s testimony last week is necessarily critical to the government’s case. The jury can accept or ignore just part or a witnesses’ testimony, and I think the government has shown enough to get a conviction on at least some of the charges even if they ignore most of Steve Hoskins testimony.

      • cggarb - Apr 4, 2011 at 2:05 PM

        Thanks for the clarification. Presumably, Hoskins had been issued a subpoena or two in the course of this litigation.

      • chrisny3 - Apr 4, 2011 at 2:08 PM

        Yes, I would assume he had been. Don’t know why he didn’t turn this recording over before or how his failure to do so may impact its admissibility.

      • easports82 - Apr 4, 2011 at 2:10 PM

        So, the gentleman who has an ax to grind against the defendant didn’t like that someone else contradicted him and is finding new evidence. Sounds like a win-win for the prosecution here.

      • chrisny3 - Apr 4, 2011 at 2:16 PM

        easport82, wouldn’t you take exception if your sworn testimony were contradicted?

        A tape recording is pretty solid evidence, unless it can shown it was doctored.

      • easports82 - Apr 4, 2011 at 3:25 PM

        I’d absolutely be pissed if I was being called a liar. But, as a layman watching the commentary on the trial, it seems that how the jury perceives everything is just as important as the facts. Considering the jury has (not to pick on Craig, but I’m using his analysis of the analysis) seen evidence that this witness is biased against the defendant, basically had that witness completely discredited, and then that same witness magically produces a tape of a conversation with the witness who lampooned him, how does that bode well for the prosecution? Even if Hoskins is exonerated by producing the tape, isn’t the prosecution in just as deep a whole, if not deeper, than last week?

        Not trying to be argumentative or snarky. I write code for a living, so my questions rise out of curiosity and have absolutely no legal basis (in case there was any confusion)

      • chrisny3 - Apr 4, 2011 at 3:52 PM

        easports, the tape discredits the witness (Ting) who discredited another witness (S. Hoskins). In essence, the tape brings credibility back to Hoskins as tapes don’t lie, unless it can be proved it was doctored.

        A jury is usually smart enough to sift through motivations and decide whether it is enough to discredit someone’s testimony. They can also accept part of a witnesses’ testimony while ignoring other parts. That doesn’t mean they always get things right, and no one knows what this particular jury is thinking now. So, regardless of what anyone here or in the media thinks, it can go either way.

  3. stevem7 - Apr 4, 2011 at 2:28 PM

    This tape will come under the heading of REBUTTAL testimony. If you testify that you don’t own a gun for example then a copy of the receipt on your credit card for the purchase of a gun can be brought in. REBUTTAL testimony and/or witnesses are never pre-planned as it would infer that the attorney knew the witness was going to lie. However, once the person veers off line then rebuttal testimony is an open door.

    • heynerdlinger - Apr 4, 2011 at 3:10 PM

      Or imply.

  4. kappy32 - Apr 4, 2011 at 2:31 PM

    Craig:

    I’m not very familiar with the FRE, however, under may forms of CPL, any audio, video, etc., INTENDED to be introduced at trial, must be given to the Defense upon demand via motion. It appears that the Prosecution called this witness, knowing he was going to lie, therefore they intended to use the tape. If they didn’t provide it to the defense, there is a good chance the judge will rule it inadmissible.

  5. sc101071 - Apr 4, 2011 at 2:34 PM

    Prior inconsistent statements are admissible to dispute the credibility of a witness.

  6. Craig Calcaterra - Apr 4, 2011 at 2:37 PM

    But what is being rebutted here? It’s their own witness. That’s why I’m somewhat confused. It’s not like the defense called Ting. The prosecution is trying to augment their own offer of evidence with new evidence that wasn’t previously disclosed.

  7. shawndc04 - Apr 4, 2011 at 2:57 PM

    This one is a bit tricky. Usually if the witness surprises with his/her testimony, the attorney can confront with a prior inconsistent statement to challenge credibility. However, if the statement is unsworn it is not usually admitted for its truth. If the statement is sworn, e.g. grand jury testimony,, depending on the jurisdiction, it may be admitted for its truth as well. The problem here, among others, is that the witness was not confronted with the statement while on the stand. Now, the statement must somehow be authenticated, presumably through Hoskins, which will open him up to further cross, and the doctor would presumably have to be recalled and given the opportunity to elaborate. All in all a messy situation; I’m still not sure what the prosecution was doing calling this man if they did not know what he was going to say, and did not have the tape at the time.

    • clydeserra - Apr 4, 2011 at 3:22 PM

      Can they recall Ting, I would suspect they would have to.

      • shawndc04 - Apr 4, 2011 at 3:53 PM

        The judge generally has a lot of discretion. However, with the prosecution yelling “Newly discovered evidence”, she will most likely let them do it and recall both Hoskins and Ting. It still seems like bungling by the prosecution, and that tape had better be pretty compelling, or they’ll just dig themselves in deeper.

  8. cur68 - Apr 4, 2011 at 3:13 PM

    No matter what, this looks bad for the prosecution. I say this with experience as an expert witness in a trial where sworn witness testimony was refuted by other testimony on the same side of the case. Impeaching your own witness might leave the jury confused, paints your side like they are incompetent, and/or creates doubt about your judgment. IMO juries blame the confusion on the side who created it and a good defense team can really make a meal of that. This wont be over soon enough for me, which is a pity, since I find the whole thing ludicrous and am amazed that a finically strapped government would go ahead with this.

  9. thejokewriter - Apr 4, 2011 at 3:14 PM

    Point of parliamentary procedure.

    -Don’t screw around. They’re serious.
    -Take it easy, l’m in prelaw.

    -Thought you’re premed?
    -What’s the difference

  10. metalhead65 - Apr 4, 2011 at 3:53 PM

    the bottom line is even if they find him not guilty everybody knows he did it and that he lied about. be happy and proud of a system that lets crooks off all the time over legal mumbo jumbo all you want it won’t change what he did.

    • clydeserra - Apr 4, 2011 at 4:04 PM

      What is it that I know he did and what he lied about?

    • larryhockett - Apr 5, 2011 at 9:28 AM

      You’re so right. If only we lived in a society where we convict people for something that we think they did without having to go to the trouble of actually proving it. All that “legal mumbo jumbo” always gets in the way of a good lynching!

  11. florida727 - Apr 4, 2011 at 5:06 PM

    Everybody already assumed he lied and is guilty of taking steroids, which in and of itself should make sure he never gets into the Hall of Fame. What it should do too is get any/all home run records wiped out. If you listen closely though, Bonds never denied taking steroids. He denied KNOWINGLY taking steroids. Kind of like O.J. No one ever asked him if he WITNESSED the murders. They always focused on trying to prove he COMMITTED them. I happen to have a “friend” that confirmed that “certain people” have a way of making things like murder look just any way they want it to. So it is possible O.J. never committed the actual act. But who’s to say it wasn’t done “for his benefit”? It’s considered common knowledge that he has/had ties to organized crime.

    Same with Bonds. He’s only stating he didn’t know what he was being given. Maybe, not likely, but maybe, he’s not lying. It would only make him the most idiotic athlete in history, entrusting someone to give you something without knowing what, exactly, they were giving you. It just so happens your hat size and muscle mass goes ridiculously up and your testicle size goes the other direction. But hey, other than that, this stuff makes me stronger and I can hit more home runs. What a moron.

  12. BC - Apr 4, 2011 at 5:37 PM

    “Paul is dead…. Paul is dead….” <—- sorry couldn't resist the Beatles reference
    So if this is contradictory, what does it matter? It just makes everything tskhdtsdzdxgzs. A tie in this thing goes to Bonds. WHY HAVE THEY NOT DROPPED THE CASE?

  13. spudchukar - Apr 4, 2011 at 5:57 PM

    Something tells me it is going to go something like this. Ting is recorded saying he has spoken to Hoskins. Somewhere in the conversation steroids are discussed or alluded to. So technically Ting’s testimony is impugned, but no where will Ting be recorded addressing his knowledge of a discussion with Hoskins of Bond’s steroid use. So the prosecution gets a small victory, on technicality, and the Defense counters with their establishment of Ting’s intention in his original statement. Small battle win for the P’s, still major win for the D’s. In first year law school do you not learn, never ask a question of your witness you do not already know the answer to?

    • chrisny3 - Apr 4, 2011 at 6:54 PM

      But the recording reportedly is between Ting and Hoskins. Not Ting talking about Hoskins.

      If the recording clearly contradicts Ting’s testimony then the jury can throw out Ting’s entire testimony concluding he is an unreliable witness. That would be a major win for the prosecution.

      • spudchukar - Apr 5, 2011 at 11:20 AM

        No where did I say otherwise. Perhaps it wasn’t as clear as it could be but there is a big difference between a conversation that alludes to steroid use and one that directly involves a discussion of a particular individual and their joint knowledge thereof. Plus no judge is going to throw out an entire testimony of a prosecution’s witness if rebutted by the prosecution. You seem to forget whose witness Ting is.

  14. ernestbynershands - Apr 5, 2011 at 12:34 AM

    Defense Closing Statement:
    Showing Bonds’ bare back
    ‘if you don’t see a zit, you must acquit!’

    • Gardenhire's Cat - Apr 5, 2011 at 2:45 AM

      +1

  15. sdelmonte - Apr 5, 2011 at 9:14 AM

    Seems like every other news story about this is ignoring the judge’s comments. Weird.

  16. Dan in Katonah - Apr 5, 2011 at 10:53 AM

    If you play the film back, you will see that Roger McDowell was the second spitter on the grassy knoll.

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