Monday – June 24, 2013 – the Third Week And Evidentiary Issues

J. Edgar Hoover IN Dedperation Misses The Target.

Today we pick up where we left off last week with an evidentiary discussion. The prosecutors are trying to get into evidence an FBI teletype that went from Boston to DC. Defense objects to it because it contains hearsay information.

The hearsay evidence rule says out of court statements can’t be admitted if offered to prove the truth of that statement. In other words if I want to prove Whitey murdered Tommy King I can’t put in an FBI report saying “Informant X told Agent Smith that Whitey murdered Tommy King.”  However if I want to show why Agent Smith went to Tommy King’s house looking for him and not that the statement was true, Agent Smith could testify that he was told Tommy King was murdered by Whitey and went looking for him. The jury should be instructed that the statement is only in to show the reason why Agent Smith went to Tommy King’s home and not as any evidence that Tommy King was murdered by Whitey.

The idea of course from the prosecutors point of view is to get the statement in. If that was all it had that Whitey murdered Tommy King then it would not prove its case, but if it had other evidence, like Hitman Martorano testifying he saw Whitey murder Tommy King that would be enough to carry the day for the prosecutor. Having the statement showing Agent Smith’s purpose would just be a little icing on the cake. The jury is not supposed to consider it on the issue of guilt or innocence, but it sure is difficult trying to do those mental gymnastics.

Today this statement the prosecutor is trying put into evidence has a lot of bad stuff about Whitey which was given to an FBI agent by Brian Halloran and was transmitted in a two page document to DC.  So it’d seem that it being filled with prejudicial hearsay it wouldn’t be admitted.  But the prosecutor knowing how damaging it is says he isn’t offering it for the truth of what’s in the statement (heh,heh) but just to show it was made  and what happened as a result of it.

It’s a fine line that the court has to draw. It will be interesting to see how Judge Casper will come down on it.

Another evidence happening last week was prosecutor Wyshak was offering something or other and the defense team objected. I had written before, I think, of meeting an old time lawyer and we were talking about trying cases in the old days and how some judges would admit things into evidence “de bene.”  We talked as if that were an old practice by judges who let things in that probably should not have come into evidence.  So I was surprised last week when Judge Casper decided to let something in “de bene” since I thought that idea had long since vanished.

On that stand we have an unusual circumstance of a member of the Department of Justice’s Inspector General’s office. He is putting in FBI records such as the informant cards of Whitey and Stevie Flemmi and other FBI records like the teletype I spoke about.  He said he made copies of these records for the trial of John Connolly in 2002.  He never testified at that trial. What is odd about his appearance is the FBI usually testifies about its own records. I wonder if somehow the FBI is trying to keep a very low profile in this matter.