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Burden of Proof

Examining the latest twist in the Roger Clemens saga

Posted: Thursday February 7, 2008 3:31PM; Updated: Thursday February 7, 2008 3:48PM
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Roger Clemens and Rusty Hardin
Roger Clemens and his attorney Rusty Hardin must counter claims that Brian McNamee has evidence of Clemens' steroid use.
Jonathan Ernste/Getty Images News
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1) What physical evidence did Brian McNamee provide the government?

Last month, Brian McNamee gave to federal prosecutors vials, syringes, and gauze pads that may contain Roger Clemens' DNA. McNamee's attorney, Earl Ward, claims the evidence corroborates his client's allegations that he injected Clemens with steroids and Human Growth Hormone ("HGH"). At this time, we do not know whether the evidence has been tested or verified.

2) Is DNA evidence admissible in a trial?

Generally yes. DNA refers to deoxyribonucleic acid, the foundation or blueprint for all living creatures. Provided its testing is conducted at a reputable facility and in a generally accepted manner, DNA evidence is considered a reliable scientific technique. Many, in fact, consider DNA evidence to be an invaluable tool in the pursuit of justice because it provides each human's unique genetic code and is identical in blood, saliva, semen, and skin. Its durability also draws acclaim: in some case, traces of DNA can be recoverable for decades, even centuries.

The use of DNA evidence in trials does present concerns, however. The most notable concerns are mishandling and tampering. Indeed, allegations of "bad collecting" by law enforcement officials can help to exonerate a defendant whose DNA would otherwise incriminate him. This was most famously seen in the murder trial of O.J. Simpson.

3) How could Clemens challenge McNamee's physical evidence?

Clemens' attorneys could offer at least two lines of argument to rebuke the evidence.

First, they could insist that the evidence was easily susceptible to tampering or mishandling and thus cannot be deemed pristine. Theoretically, at least, McNamee could have taken Clemens' DNA sample from a syringe containing Vitamin B12 or lidocaine and placed it in a syringe containing steroids or HGH. Alternatively, McNamee might have injected Clemens with steroids or HGH on one occasion, and then saved the syringe for future use (such as for blackmail), without, of course, telling Clemens about the syringe's nefarious contents.

Along those lines, Clemens' attorneys could insist that McNamee possesses a strong incentive to fabricate damming evidence. In 2006, McNamee signed a proffer agreement with federal authorities. The agreement called for McNamee to provide details about illegal steroids in exchange for any disclosures not being used against him. If his "disclosures" were actually lies, McNamee would risk being indicted on felony charges, including obstruction of justice and the purchase and distribution of illegal steroids.

McNamee's method of storing the physical materials could draw similar skepticism. Apparently, he preserved the samples in his basement, a location that, at least on the surface, appears far less protective than a laboratory or related facility. Then again, as a former NYPD police officer, McNamee would likely possess better knowledge of how to correctly handle DNA evidence than would most persons.

Second, Clemens' attorneys could attack the reliability of the steroids and HGH evidence associated with Clemens' alleged DNA. While DNA can usually be readily identified and dated, available technology is much less developed for the identification and dating of steroids and especially HGH. In other words, a physical sample revealing the combined presence of Clemens' DNA and steroids or HGH would pose varying levels of testing certainty, with much higher certainty in the identification and dating of Clemens' DNA than with the steroids or HGH.

As a more preliminary tactic, Clemens' attorneys could refuse to provide a sample of Clemens' DNA on grounds of privacy. A refusal to do so, however, may lead to an adverse inference: Clemens fears that a comparison of his DNA and that found on McNamee's evidence would match.

It should be noted that if a comparison between Clemens' DNA and McNamee's evidence ultimately occurs, a judge would be poised to admit the evidence and let a jury evaluate any concerns about its origin or accuracy. Judges tend to admit DNA evidence, especially given the sophistication and accuracy of modern testing methods, though they are also careful to acknowledge any limitations or points of ambiguity.

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