3.Email Admissibility and Advance Submission of Impeachment Materials
31 linesMS. PENZA: Your Honor, may we have a brief sidebar?
THE COURT: All right. What we will do is we will take our morning break.
All rise for the jury.
(Jury exits the courtroom.)
THE COURT: All right, the witness may stand down. Do not discuss your testimony with anyone.
(Witness steps down.)
THE COURT: All right. Everyone may be seated.
MS. PENZA: Your Honor, I don't think we actually need a sidebar, I can address in open court. It is very difficult for me to monitor whether an e-mail is in or out as Mr. Agnifilo is putting it on the screen. So if there is any question about what e-mails are in or out, we should resolve that now.
THE COURT: I didn't see it on my list.
MS. PENZA: It's not, but that puts me in a difficult position in the moment of a questioning to be looking at the list to try to figure out for him whether the exhibit is in or out.
THE COURT: All right, so we are going to add to your travail. I want both sides to provide me with a list of all the -- of all of the documents that have been admitted into evidence and to do so on a continuing daily basis by the beginning of the next day. That solves the problem right there. It is just more work for you, but --
MS. PENZA: Your Honor --
THE COURT: I am just going to do it, because -- I mean, I'm keeping a record here, but that means I have to go back and forth, too, so that's where we are.
MS. PENZA: We have been doing that, so it's not a problem. It's just that, in the moment, if an e-mail is about to be shown and it is not on the list, I don't want to be announcing to the jury that's it's not -- I just don't think it is my place to be having that dialogue with Mr. Agnifilo.
THE COURT: All right. Thank you.
MR. AGNIFILO: Judge, in terms of the admissibility, the Government has cherry-picked e-mails between --
THE COURT: Yeah, but that's -- with their witness, and now you are cross-examining and there are certain e-mails that have not been admitted are hearsay on cross-examination. That's the way I learned evidence and maybe I was going to a law school that didn't have a decent faculty, but that's how I learned evidence anyway. You know, I could go back.
MR. AGNIFILO: You'd do very well. You'd do very well, I'm sure, but the hearsay rule is actually the same. There is no distinction in the hearsay rule when the defendant is not on the e-mail. I agree, when the defendant is on the e-mail then they get a party admission exception to the hearsay rule that I don't get. But that's not the issue. But when we are talking about e-mails between Allison and this witness, hearsay on direct is no different than hearsay on cross. So, if it's not hearsay on direct, I don't know how it is hearsay on cross. It is presumably admitted for the same state of mind, not for the truth; if it was being offered for the truth, it wouldn't have been admitted because it would have been hearsay.
So, all I am trying to do is to complete the narrative of the dozens or scores of e-mails between Allison and this witness that the Government put in on their direct examination. The hearsay rules are the same for me on cross-examination. They were admitted on direct because they are an exception to the hearsay rule; they should be admitted on cross because they are an exception to the hearsay rule.
MS. PENZA: Your Honor, if he is talking about Nicole's statements, we have offered them in the context of e-mail chains. So, for example, the very last e-mail that Mr. Agnifilo was looking to put up was the defendant's response to her -- or her response to him, without the defendant responding. Her e-mails were offered in the context of their effect on Ms. Mack, or on the defendant, but that's what they were offered for.
MR. AGNIFILO: That's just one exception. Another exception is the state of mind of the declarant. It doesn't have to be that it has an effect on the listener; that is a well-established hearsay exception. Another well-established hearsay exception is that it is not being offered for the truth; it is being offered for the state of mind of the person making the statement, which is directly relevant, where the Government time and time again said, well, looking back now at things now, how do you feel. The Court can't now prevent me from actually showing what the witness said at the time, especially in light of -- under normal hearsay rules, I get to show what the witness thought at the time. It is especially relevant when the Government is doing this change in perspective. I mean, the relevant fact -- the relevant time period isn't 2019. The relevant time period is when these events are taking place, 2016, 2017, and the way that we are going to get to that is by putting in the e-mails of the person who's now saying she has had this change in perspective, and she is allowed to come here and say I've had a change in perspective. But I am also then allowed to say, yeah, but back in 2017 this is what you thought, and we know what you thought because you sent an e-mail.
MS. PENZA: That's hearsay, Your Honor. He wants to put in an e-mail for the truth of the statements at the time. He can ask her what she thought and he can impeach her, if she doesn't say it, but that is hearsay.
THE COURT: It would be helpful if the Court received in advance the impeachment material so the Court could review it with some time to go through it and then not have to make an immediate decision on admissibility. So, for the rest of the trial, whichever party is cross-examining a witness, when you advise the Court about the name of the witness two days ahead of time, the Court requires that you provide the Court with the impeachment material ex-parte and then I will deal with it in a more orderly way.
So I didn't get anything on this witness on impeachment. Did I? Did I get a single anything?
MR. AGNIFILO: No.
THE COURT: But I didn't have that rule in effect. So now I have the rule in effect.
My decision on the exhibit stands. You have your exception. We will take ten minutes.
MS. PENZA: Thank you.
(Recess taken.)
THE COURT: Bring in the witness, please.
(Witness resumes stand.)
THE COURT: Bring in the jury.
(Jury enters the courtroom.)
THE COURT: Please be seated.
You may continue your cross-examination.
The witness is reminded that she is still under oath.
BY MR. AGNIFILO: