The Roger Clemens Acquittal and the Prosecution’s Burden of Proof

The verdict of “not guilty” in the criminal prosecution of Roger Clemens is another strong reminder of the importance of holding the party charged with the burden of proof to its legal task.

July 09, 2012 Photo

The verdict of “not guilty” in the criminal prosecution of Roger Clemens is another strong reminder of the importance of holding the party charged with the burden of proof to its legal task. Whether you are defending a criminal or civil case, the critical nature of the prosecution or plaintiff’s proof burden cannot ever be ignored and should be the difference in how a jury decides a case.

While jurors may be doing “head dives” during jury instructions, somehow the concept of a party’s burden of proof does not get lost (except in the rare instances of jury nullification). Many of the first requests for jury read-backs involve the repeating of the burden of proof instructions. Somehow, the basic concept of holding a party (or a plaintiff) to its burden can get lost by a lawyer in the hurricane of a trial. Whether the burden is proof beyond a reasonable doubt or by a preponderance of the evidence, a defense counsel must constantly hammer on burden issues from jury selection to closing arguments.

When you look at the outcome of the Clemens perjury trial, you can detect that the prosecution had major burden problems. In the end, these failures of proof were the basis of the jury’s “not guilty” verdict. Let’s remind ourselves that “not guilty” doesn’t mean, under our law, that the jury found Clemens to be innocent. A not guilty verdict, by its very nature, means that the prosecution failed in its burden to prove guilt beyond a reasonable doubt.

At first glance, the prosecution must have been thrilled to have an actual eyewitness who would testify that he injected Clemens with a performance enhancing drug (PED). Brian McNamee was the star witness in the Congressional hearings about steroid use in baseball. In the context of a hearing (with questioning from members of Congress), his testimony seemed to have the ring of truth. Not only did McNamee claim that he injected Clemens with PEDs, but also he told Congress that he maintained the needles. If true, the government could have a PED case with an eyewitness and DNA evidence—not bad. However, in the harsh light of cross-examination in a trial, McNamee proved to be a burden disaster.

The prosecution’s problems with McNamee started with how this incriminating DNA needle evidence was maintained over a decade of time. When it comes to DNA or “CSI”-type proof, jurors have been trained to hear about sophisticated and impressive evidence collection and maintenance procedures. In the Clemens case, McNamee told the jury he kept the needles he claims he used on Clemens in a beer can that may have been tampered with and was certainly contaminated over time.

In addition, McNamee told the jury that he was ordered to keep the Clemens needles by his now estranged wife, Eileen McNamee. Brian McNamee testified that his wife told him he would be “going down” without protecting himself by holding on to the DNA evidence.

If true, Eileen McNamee’s advice made sense. In time, Brian McNamee was targeted by the FBI in a steroids investigation and would seek an immunity deal. The burden problem for the prosecution arose when Eileen McNamee contradicted her husband at every turn. She told the jury that she never told Brian to maintain the evidence, and in fact, was very happy when he was working for Clemens. When it came to a can of beer holding needles, Eileen only knew about a can that held used needles for their diabetic son’s insulin. She also told the jury that the basement where the DNA evidence was allegedly stored had been damaged by water during a hurricane. Given this disastrous and contradictory testimony, the defense experts on DNA had no problem driving a truck through the prosecution’s case.

After the prosecution’s star witness was roughed up on cross-examination, the government’s pitching star was next. Once again, before Congressional investigators New York Yankee (and former Clemens teammate) Andy Pettitte seemed to be crystal clear in his statement that Clemens admitted to Pettitte that he used PEDs, and therefore lied in his denial before Congress. However, at trial, Pettitte stunningly testified that there was a “50-50 chance” he may have misunderstood the facts that Clemens claimed Pettitte “misremembered.” In short, Pettitte told the jury there was an even chance that his recollection of Clemens’ PED use was wrong.

Whether burden of proof is beyond a reasonable doubt or even preponderance of the evidence, a “50-50” proof simply will not suffice. As the Clemens trial progressed, the prosecution’s case was broken and the jury knew it. The defense told the jury from the trial’s first day that the prosecution would not meet its burden and it didn’t. For a criminal or civil defendant, the Clemens verdict reinforces the lesson of imposing the burden of proof argument before a jury on a constant basis. The ultimate goal is for a civil or criminal defendant to add as much possible weight to the burden of proof to reach the legal breaking point.

Christopher Fusco is managing partner of Callahan & Fusco, LLC, a member firm of CLM since 2010. His blog, “Sports in the Courts,” can be found at, and he can be reached at



About The Authors
Christopher Fusco

Christopher Fusco is a founding and managing partner of Callahan & Fusco LLC.

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CLM’s Insurance Fraud Committee identifies, analyzes, and offers education on emerging fraud schemes and tactics; monitors and reports on developments in case law, state fraud statutes and applicable regulations; collaborates with other anti-fraud industry organizations and associations; and seeks to provide amicus support in matters of importance in the fight against insurance fraud.

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