HENRY HYDE and the other House managers who are prosecuting the Clinton impeachment are on solid ground in demanding the right to present live testimony. Trial evidence does not merely establish the facts, it draws the jurors into the story and gives them the moral resolve to do what the facts require. This is the basis for the long-settled "moral force doctrine" that permits prosecutors to present testimony even on accusations the defendant concedes are true.
President Clinton is far from the first defendant to try to stipulate to the evidence against him in order to preempt live testimony. Twenty years ago, I was appointed to defend a man against a charge of murdering his grandmother by stabbing and strangulation. The moment the trial began, I was at the bench, offering to stipulate to the crime scene reports, medical examiner's reports, anything that might prevent live witnesses from describing how the poor lady died. The old trial judge had seen this ploy a thousand times before. He said: "Mr. Kirby, a trial is a story. You can't make the government tell the story your way, and you can't ask me to squeeze all of the juice out of it." He excluded a few of the bloodiest photographs as "more prejudicial than probative," but otherwise let the prosecutor's witnesses tell the whole distressing tale.
The judge in my murder case was following a long tradition. Wigmore's hoary treatise on evidence explains that a prosecutor is entitled to the "legitimate moral force" of live, detailed testimony, even if a defendant offers to stipulate to the cold facts. That "moral force" doctrine has been followed in hundreds of federal and state cases. In the 1965 Singer opinion, the Supreme Court said, "It has never been seriously suggested that [a defendant can] compel the government to try the case by stipulation."
Two years ago the Supreme Court's Old Chief opinion reaffirmed the prosecution's right to prove its case as it chooses, although the liberal wing created a narrow exception for proof of prior crimes. Old Chief, a Blackfoot indian with several prior convictions and a long juvenile record, had been arrested after a Wild-West style fracas in which he fired at least one shot. He was charged with, among other things, violating a statute that forbids anyone convicted of a crime punishable by imprisonment to possess a firearm for more than a year afterward. The prosecutor offered evidence that Old Chief had a prior conviction in Indian Country for aggravated assault that caused serious bodily injury to the victim and led to a 60-month sentence for the defendant. Old Chief sought to keep that evidence from the jury, offering instead a plain vanilla stipulation that he had a prior conviction that satisfied the statute's requirement.
Writing the majority opinion, Justice David Souter agreed that the prosecutor should have accepted the admission in lieu of proof, but stressed that only a narrow intrusion on the prosecutor's right to present evidence was authorized. Because the prosecutor's right to "evidentiary richness and narrative integrity" would not be significantly impaired by leaving out the details of the aggravated assault, the Court ruled in favor of Old Chief. But then, in words that suggest the importance of witnesses to the prosecution in the impeachment trial, Justice Souter explained:
This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. . . . Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault.
This, in a nutshell, is the argument of Henry Hyde and the House managers. The senators are sitting as a jury. They are human beings, not computers. The burden on the managers, is to present a "story of guiltiness" that will persuade the senators "that a guilty verdict would be morally reasonable," leading them "to reach an honest verdict." Sure, as a matter of disembodied logic, they can stand up and read transcripts. But as any trial lawyer will tell you, a transcript is nowhere near as powerful as live testimony.
The impeachment hearing in the House of Representatives was a legislative investigation, not a trial. House members, were not sworn in for the occasion, they were not restricted to the evidentiary record, and no supermajority was required. In that framework, the sponsors of impeachment concluded that they did not need extensive testimony, and that was their prerogative. The Senate, however, is to hold a trial, presided over by a judicial officer, the chief justice of the United States. And the House managers are the prosecutors in that trial. Respect for their role requires that they be allowed to present their core evidence.
This is not to say that the testimony must be open-ended. Judges long have had the power to exclude marginal evidence to avoid wasting time or causing undue prejudice. That is how the bloodiest photos were kept from the jury in the criminal trial I mentioned above. No doubt similar principles may limit the evidence proffered to the Senate. Like the narrow Old Chief exception, however, these balancing principles operate at the margins. It is wrong to use them to cut the heart out of a case. The House managers are entitled to tell the "story of guiltiness" with its full moral force.
Thomas W. Kirby is a litigation and election-law partner in the Washington, D.C. law firm of Wiley, Rein & Fielding.