by Margot Cleveland at The Federalist
Late Monday, lawyers representing Special Counsel John Durham and Michael Sussmann filed a flurry of motions in the pending criminal case against the former Hillary Clinton campaign attorney.
Sussmann was charged in that case with one count of lying to former FBI General Counsel James Baker when he met with Baker on September 19, 2016, and provided Baker with data and white papers purporting to establish a secret communication network between Trump and the Russia-base Alfa Bank. According to the indictment, Sussmann lied to Baker when they met, telling Baker that he was not representing any client, when in fact he represented the Clinton campaign and Rodney Joffe.
In total, Sussmann’s legal team filed four motions addressing distinct issues, while the special counsel’s office filed one global motion. Four of the motions addressed evidentiary issues, with the attorneys arguing that specific evidence should be either admitted or excluded at Sussmann’s trial, which is scheduled to begin on May 16, 2022.
Parties file such motions, called motions in limine, before trial usually to ensure that the opposing counsel does not elicit inadmissible evidence from a witness in front of the jury. When that happens, the typical remedy is for the judge to “strike” the testimony and direct the jury to disregard the statement.
Of course, by that point, the jury has already heard the witness’s testimony and the damage is done. Seeking a ruling on the admissibility of evidence pretrial via a motion in limine ensures this scenario does not happen.
Evidentiary Issues in General
While the motions in limine filed on Monday include many issues, in general they concern three specific “evidentiary rules.” Evidentiary rules govern whether evidence, such as testimony or documents, may be admitted in court and presented to the jury.
The most fundamental rule of evidence concerns relevancy. Only relevant evidence is admissible. To be relevant, the evidence must have the “tendency” to make the existence of a fact of consequence “more probable” or “less probable.”
However, even if evidence is relevant, a second evidentiary rule provides that relevant evidence is inadmissible if its relevance is outweighed by unfair prejudice. The key here is “unfair” prejudice—if the evidence goes to the question of guilt, the prejudice is not “unfair.”
Conversely, if the evidence is only slightly important to the case but might improperly inflame the passions of the jury, prompting them to convict because they don’t like a defendant or think he is a bad guy in general, then the prejudice is “unfair,” and the relevant evidence must be excluded.
A third evidentiary issue underlying the various motions concerns “hearsay.” Hearsay, in general, is an out-of-court statement repeated in court to prove the fact being repeated.
For instance, if in a hypothetical murder trial, a witness on the stand testifies that a few minutes before hearing a gunshot, the defendant said to the witness, “I’ll be right back. I’m going to grab an umbrella from my office because it’s starting to rain,” that would not be hearsay because the statement is being repeated in court to explain why the defendant returned to his office—not to prove whether it was raining. Further, even if a statement or writing is hearsay, there are numerous exceptions making the evidence admissible.
With this backdrop, then, here are five takeaways from Monday’s filings.