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Posted: Friday January 30, 2009 1:42PM; Updated: Friday January 30, 2009 1:42PM
Michael McCann Michael McCann >

Testimony by Estalella, Giambis could spell trouble for Bonds

Story Highlights

Bobby Estalella, Jason Giambi and Jeremy Giambi have admitted to steroid use

All three players shared the same trainer with Bonds: Greg Anderson

Estalella will testify that he has first-hand knowledge of Bonds using steroids

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Bobby Estalella
Bobby Estalella's testimony could be the deciding factor in the Barry Bonds' trial.

The last 36 hours have offered much insight into the diversity of evidence that prosecutors will use to demonstrate that Barry Bonds used steroids. It is now known that prosecutors possess test results that link Bonds to additional types of performance-enhancing drugs than previously known, that Bobby Estalella, a teammate of Bonds in 2000 and 2001 who has admitted to steroid use, will testify that he has first-hand knowledge of Bonds using steroids, and that Jason Giambi and Jeremy Giambi will testify that the former personal trainer they shared with Bonds -- Greg Anderson -- developed doping calendars for them. It thus appears that prosecutors possess an impressive array of physical, testimonial and circumstantial evidence that is poised to confirm widespread suspicions about Bonds and steroids.

Proving beyond a reasonable doubt that Bonds used steroids will not necessarily deliver prosecutors a perjury conviction, however. They must also establish that Bonds knowingly lied under oath about his use of steroids. As a result, even if jurors are certain that Bonds used steroids, so long as they also suspect that Bonds innocently mistook the steroids for benign substances, then Bonds will likely walk out of a San Francisco courtroom a free man.

For that reason, Estalella could become a crucial witness for the prosecution. If, for instance, Estalella can recount a conversation he had with Bonds in which Bonds admitted that he used steroids, Estalella's testimony would probably devastate Bonds' defense, which rests heavily on the premise of ignorance. While Bonds' counsel might object to such a statement as inadmissible hearsay (i.e., a statement recalled by a person that the person did not make), defendants' admissions of culpability are normally admissible, since defendants have an opportunity during their trials to challenge the veracity of those admissions or claim that they have been taken out of context by the witness (such as Bonds insisting that he was merely joking around with Estalella). As a result, Bonds admitting to Estalella that he used steroids would likely be admissible.

A more contentious issue would emerge if Estalella tries to recount a conversation he had with Anderson, whom Estalella claims provided him with steroids, particularly if Anderson had told Estalella that Bonds knowingly used steroids. Such a statement would normally be considered inadmissible hearsay. Anderson, however, has refused to cooperate with prosecutors in their case against Bonds, and his refusal may provide prosecutors with an opportunity to claim that a conspiracy exists between Bonds and Anderson. Conspiracy offers an exception from hearsay when two or more persons enter into an agreement for an unlawful end and become ad hoc agents for one another, meaning, for purposes of the law, they speak with one voice. The conspiracy exception from hearsay is difficult to establish, however, and Anderson has not yet been charged with a crime.

Estalella could damage Bonds' defense even without recounting a conversation. For instance, if he testified that he witnessed Bonds use a substance that other players clearly knew was a steroid, then Bonds -- a veteran player renowned for his workout regimen -- would seem much less credible in arguing that he, unlike other players in the clubhouse, thought the substance was benign.

Whether Estalella impresses the jury as a believable witness remains to be seen, and Bonds' counsel will undoubtedly attempt to rebuke any incriminating testimony. Even if Estalella seems convincing, his importance in the trial will depend on the nature and specificity of the information he shares. Nevertheless, while Estalella may have had a relatively obscure baseball career, his forthcoming role in the trial of baseball's all-time home run leader may make him a noteworthy name.

Though likely in the form of circumstantial evidence, the Giambi brothers may also offer testimony that undermines Bonds' defense. It appears that they will testify that Anderson placed them on schedules to use various performance-enhancing substances, some of which were illegal, and that Anderson explained to them what they were taking. Anderson placed Bonds on a similar schedule, but Bonds contends that he always thought the substances were benign. Prosecutors will hope that the jury draws an important inference from the Giambis' testimonies: Why would Anderson inform them about the nature of the substances he placed them on, but not inform Bonds about the substances he placed him on? legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is former chair of the Association of American Law Schools' Section on Sports and the Law.

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