Jose Canseco's Attorney

This is the kind of attorney that gives lawyers a bad name. To catch you up, Canseco, a former baseball player, has written a tell-all autobiography that includes his claims that he used steroids, that he helped teammates use steroids, and that he actually injected steroids into Mark Mcgwire, the first player to hit 70 homeruns in a season.

Anyway, Canseco's attorney is making the sports talkshow rounds, spouting off about how Canseco is ready and willing to testify before the congressional hearings on steroid use in baseball that are coming up next week. He's been questioned several times about why Canseco supposedly isn't concerned about the statements he made in his book being used against him, either before the congressional committee, or in future litigation. The lawyer says that the statements in the book are hearsay and thus could never be used against Canseco. This explanation, of course, leaves the sports hosts flabbergasted.

Here's the problem. While Canseco's lawyer is technically correct -- that is, the statements are hearsay -- the lawyer conveniently omits the other side of the story, which is that there are at least two very clear and very obvious exceptions to the hearsay rule that would permit the statements to be used against Canseco, if the occasion arose to do so.

First, let's make clear what "hearsay" is. Hearsay is a statement made outside of court that someone in court wants to introduce to prove something. For instance, let's say that I want to prove that my sister was at the diner. I bring in a witness, Tom, to testify that he heard Mike say that my sister was in the diner. Mike's statement about my sister is hearsay. It's an out of court statement that I am trying to introduce to prove that my sister was in the diner. Ordinarily, Tom cannot testify about what Mike said. Tom can only testify about what he saw, or what he knows from his own personal knowledge.

That's why Canseco's book is technically hearsay. Under the general hearsay rule, I couldn't introduce the statements in the book to prove that what Canseco said in the book is try. Ah, but for every rule, there is an exception. Or two. Or thirty. And the hearsay rule is no exception.

First Exception: A statement against interest is admissible. What's that? Well, simply put, it's a statement that could get you in trouble, such as "I shot McGwire in the butt with steroids." Why is it a statement against interest? Because it is against your interest for you to admit that you did something illegal, like help someone use a controlled substance like steroids. Why is it admissible? Because the theory is that you wouldn't admit to doing something wrong unless it was true. Thus, the fact that it's an out of court statement, which was probably not made under oath, is trumped by the fact that you wouldn't make a statement about doing something bad if it wasn't true.

Second Exception: An admission by a party is admissible as an exception to the hearsay rule. This exception is similar to the statement against interest, except that it's somewhat broader, and is limited to a party to the case. An admission does not necessarily have to be "against interest." But if the defendant says something like "I knew the light was about to turn red but I thought I could make it anyway," that statement, while not exactly against interest, is nevertheless an admission that you saw the light turning before you gunned it through the intersection. That could be important in an automobile case -- as would be a statement from Canseco's book along the lines of "I got my roids from the anyone who'd sell them to me." This would establish, with Canseco's own words, that Canseco was obtaining an illegal substance.

What's the point of this little hearsay primer? Only this -- do not EVER take the statements made by an attorney who is representing a client at face value. EVERY such statement is spin-doctoring, in one form or another. Unfortunately, the law these days has very little to do with a search for the truth. It has everything to do with hiring the best spinners.

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