16 March 2005

Jose Canseco, Congressional Subpoena Daredevil

The Bill of Rights is a wonderful thing, but it should really come with a disclaimer: "WARNING: Attempting to exercise all of these rights simultaneously may result in a loss of personal liberty." Bloomberg.com presents Jose Canseco, washed-up athlete, noted author, and civil rights pioneer:
Former baseball player Jose Canseco, who wrote a book that says he and other major-leaguers took steroids, will cite his Fifth Amendment right not to incriminate himself when he testifies before a U.S. House panel tomorrow, his attorney said.

Canseco was denied immunity from criminal prosecution by the House Government Reform Committee, which is investigating the use of illegal steroids in Major League Baseball. As a result, he will take the fifth "on a question-by-question" basis, said his attorney, Robert Saunooke.

"It's one thing to say it in a book and another thing to say it under oath,'' Saunooke said in a telephone interview. "It's not admissible in a book."

That's a sucker bet worthy of Pete Rose.

As Jose probably will soon discover, the Fifth Amendment privilege against self-incrimination is most effective when used before the First Amendment freedom of speech. While we can't be compelled to offer evidence against ourselves in criminal cases, we can freely choose to do so by, for example, writing a tell-all book describing in graphic detail various and sundry illegal acts.

Black's Law Dictionary (7th Edition) describes an "admission" as: "1. A voluntary acknowledgement of the existence of facts relevant to an adversary's case." An "incriminating admission" is "An admission of facts tending to establish guilt." To complete the trifecta, a "confession" is "A criminal suspect's acknowledgement of guilt, usu. in writing and often including details about the crime." Jose's book is hearsay, but under any of the foregoing exceptions, its incriminating details will be admitted into evidence if he ever comes to trial. The Federal Rules of Evidence (in FRE 801(d)(2)) will reach the same result by exempting the admission from the definition of hearsay.

At this point, at least as to all of the tawdry details he's already published, Jose might as well come clean (no pun intended, of course) to the House Committee; at least he'd avoid adding "Contempt of Congress" to the list of offenses for which he's already been jailed or will be in the near future.

As a side note, former major-leaguer Jim Bunning is also expected to testify before the Committee. Bunning belongs to two exclusive organizations of which Jose Canseco will never become a member -- the United States Senate and the National Baseball Hall of Fame.

No comments: