Can McVeigh’s Confession Be Used Against Him?

The execution of Timothy McVeigh has been delayed while his lawyers review documents just turned over by the FBI. But after his conviction, McVeigh confessed the crime to journalists Lou Michel and Dan Herbeck, who wrote the book American Terrorist: Timothy McVeigh & theOklahoma CityBombing. If McVeigh’s lawyers are able to get him a new trial, would this confession be admissible evidence against him?

Yes. Although the statement is “hearsay”–that is, it was made out of court and not under oath–and although much hearsay evidence is excluded from testimony, the courts do allow statements made by people who are defendants or plaintiffs in the case. So the confession would be freely usable by prosecutors in the event that a new trial is ordered. Hearsay is often excluded because it is second-hand, which means that the accuracy of the reported statements cannot be tested under cross-examination. But in this case, since it is McVeigh who made the statements, he would be available to be cross-examined about them. The goal of the defense in such an instance is to claim that the defendant never made them, or that the statements were misinterpreted, or try to explain them away, for instance, chalking them up as the inflated anti-government boasting of a condemned man.

Normally, to win another trial, the defense would have to show that the new evidence might have resulted in a not-guilty verdict or a lesser sentence than the death penalty. But now McVeigh’s lawyers have to overcome his own words about committing the crime. There is also the possibility that if another trial were ordered, it could violate McVeigh’s constitutional right against double jeopardy–that is, being tried twice for the same offense. But because McVeigh was convicted on federal charges, the double jeopardy clause would not stand in the way of his being tried on state charges.

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Explainer thanks Paul Rothstein of theGeorgetownUniversityLawCenter.