The Mitchell Report made some nice weekend reading; it was a good piece of investigative journalism on the history of steroid use in professional baseball. I’ve offered myas being an overpriced review of secondary sources that was extensively documented . But I must admit there was a good amount of primary source reporting in the testimony of Kirk Radomski and Brian McNamee (thanks to the U.S. Justice Department).
The allegations and naming of specific baseball players was the sensationalistic information that the public eagerly consumed. Some news organizations dismissed all of this as “hearsay.” This is incorrect. Willamette law professor:
[A]ll this talk about “hearsay” (I’m watching ESPN) is incorrect. Most of the evidence in the report is not hearsay. When a player asks a trainer to order him some steroids, the player’s statement is not hearsay. (It is a party admission specifically exempted from the definition of hearsay.) When a player writes a check for steroid purchases, the cleared check is not hearsay (it’s a business record, assuming a foundation could be laid, which would be easy.) When a trainer states he supplied or injected a player with drugs, it’s not hearsay (the statement is that of a co-conspirator, and thus is exempted from the definition of hearsay). Little of this report is hearsay; for the most part, the report consists of valid evidence. The only question about the report is whether or not the (valid) evidence it gathers is sufficient to conclude the named player actually used illicit enhancements. It’s a question of the weight of the evidence, not its validity.
So, the Mitchell Report does offer legal evidence about steroid use. But does that “prove” guilt of any of the players? That all depends on the standard of proof. In criminal prosecutions, it is “beyond a reasonable doubt.” In civil cases, it is a “preponderance of the evidence.” But what? If we use the World Anti-Doping Association (WADA) and U.S. Anti-Doping Agency (USADA) as a guide, the standard is apparently “comfortable satisfaction.” Was this simply invented to increase the apparent success rate, prove the effectiveness of the drug testing programs, and therefore gain more funding? This standard of proof seems like it is slightly higher than “suspicion.”
Senator Mitchell told AP that thesince the investigation was a private inquiry commissioned by MLB.
It is not a judicial proceeding. It is not a trial… But it doesn’t make any difference what standard or what court you’re in: direct, personal, eyewitness testimony, it is the principal form of evidence in most proceedings.
One thing is for certain – the standard of proof required in the court of public opinion is significantly lower than “comfortable satisfaction.”