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Evidence admissibility key to Bonds' hearing

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Both sides in the Barry Bonds case will begin to grapple in earnest Thursday over something that might as well be called the Greta Garbo factor.

The star witness isn't talking. Not in court. Not about Bonds. Not a chance.

How that silence impacts the upcoming trial, with Bonds facing 10 charges of perjury and one of obstruction, will become clearer as the government and defense appear at a hearing before Judge Susan Illston in federal court in San Francisco.

The hearing will lead to an important pretrial verdict over what evidence gets in and what evidence gets thrown out. Illston is not expected to rule immediately.

Lots of evidence involves Greg Anderson, Bonds' former personal trainer and the would-be star witness. After all, Anderson is the one who allegedly created doping calendars for Bonds. He's the one who allegedly acknowledged injecting Bonds with a performance-enhancing substance during a covertly taped phone conversation. He's also the one who spent a year in jail rather than testify against baseball's home run king.

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Unsealed evidence

Documents made public in the Barry Bonds perjury case:

The government's case against Bonds: 60-page PDF
Bonds' response to government allegations and evidence: 35-page PDF
Table of Bonds' drug tests: 71-page PDF
Bonds' blood analysis; Jim Valente testimony:
63-page PDF

The chances of Anderson testifying during a trial scheduled to begin March 2 are as good as the chances of Bonds showing up and announcing he knowingly took steroids.

"The big obstacle has been Anderson's balking at cooperation," said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former prosecutor.

Ultimately, prosecutors must convince a jury beyond a reasonable doubt to win a conviction. But Thursday they must persuade Illston, the presiding judge, that doping calendars, drug tests and the recorded phone conversation – among evidence that could prove vital to the government's case – is admissible even though Anderson has gone Garbo on prosecutors.

Illston's decision, according to legal experts contacted by Yahoo! Sports, will hinge on two key questions:

1. Because Bonds won't have an opportunity to cross-examine Anderson, is it fair for the government to use evidence involving the former trainer?

2. Because others will be needed to prove Anderson said and did things that the prosecutors say prove he was injecting Bonds with a performance-enhancing drug, is it fair to allow the government to potentially convict baseball's home run king on hearsay?

Robert Weisberg, a professor at Stanford who closely has followed the case, said the evidentiary issues resemble what might be found on a law school exam.

"Professors tend to write questions where the facts make resolution of the issue really difficult," he said. "They're always on the cusp of ambiguity. Of course, the ideal law student answer isn't 'this side is right and this side is wrong' but 'gee, well, on the one hand, and on the other hand …' "

Illston won't have that same luxury, and so the doping calendars Anderson allegedly created for Bonds and the covertly recorded phone conversation could lead to the most contentious arguments over admissibility.

The government hopes to parade out Jason Giambi, Benito Santiago, Gary Sheffield and other baseball players who received performance-enhancing substances, doping calendars or both from Anderson. The goal would be for those players to authenticate the doping calendar Anderson allegedly created for Bonds and show how it's material to the case.

If admitted, this evidence could prove especially troublesome to Bonds. Though the government ostensibly would use the witnesses to show why the calendars are material to the case, not to show that Bonds lied, the jury might struggle to follow those instructions. Weisberg, the professor from Stanford, said it's akin to asking a jury to disregard "the big purple elephant" in the room.

"Of course the defense would be entitled to an instruction like that, but it's terrified it wouldn't do much good," Weisberg said. "So the defense attacks all of the statements that would come in as direct evidence as hearsay."

When it comes to admitting evidence, however, there are exceptions to the rule of hearsay. One is if the evidence is a business record, and whether the calendars constitute as much will be debated Thursday. Another is whether a person makes remarks without fear that they are self-incriminating or used against someone in court. This figures to be a pivotal debate when both sides argue over the admissibility of a phone conversation between Anderson and Steve Hoskins, a business partner of Bonds' before they had a falling out.

A transcript of the conversation produced by prosecutors indicates Anderson acknowledged injecting Bonds. The government's argument is simple: Considering Anderson was chatting casually in what he must have considered a private conversation, why would he have lied?

The defense's retort: Bonds won't have an opportunity to ask Anderson, rendering the evidence inadmissible. Technically, the issue is rooted in what's known as the "confrontational clause," which affords defendants the right to cross-examine witnesses who knowingly make statements that can be used in court. But because Anderson presumably spoke without knowing his statements could be used against Bonds, legal experts said, the taped conversation may be admissible.

Richard Friedman, a law professor at the University of Michigan, said the Supreme Court's interpretation of the "confrontational clause" remains fuzzy.

Even if the phone conversation is admissible, the defense can point out at trial that the substance Anderson allegedly injected Bonds with – the Clear – was not considered a steroid under federal law at the time.

The "confrontational clause" issue could linger even with legal experts saying the government likely will win the right to use much, if not all, of the evidence it has – including expert witnesses who will testify about the physical and mental effects of taking steroids, major leaguers who will testify about how they allegedly saw those effects manifest with Bonds, and records of positive drug tests that the government will use in an attempt to conclusively prove Bonds took steroids – and knew so.

But forced to rely in part on legal exceptions to hearsay and using evidence linked to Anderson without Bonds having an opportunity to cross-examine his former trainer could have a far-reaching impact.

"There's no argument here about guilt or innocence," Friedman said. "These are all constitutional issues.

"There's a certain up-in-the-air issue as to what the [higher] courts will eventually say about that. So even if Bonds loses the trial, he's got an issue on appeal because who knows what the Supreme Court will say about it?"

First order of business: Waiting to hear what Illston will say.