Remaining Evidentiary Disputes in Hunter Biden Case

As I laid out, Judge Maryellen Noreika has prohibited Hunter Biden from showing the jury the physical form that is the basis of two of the three charges against him. Her ruling may also have the effect of prohibiting him from explaining circumstances of the purchase — the gun shop owner says he was trying to get Hunter out of his store and so didn’t do the proper due diligence on the ID he showed because of his father, because she has prohibited any discussion of politics, even though by the gun shop owner’s own description, his view about Biden affected how he conducted the sale.

Judge Noreika also ruled against Hunter’s requested changes to the jury instructions and excluded the expert he wanted to call to testify about addiction, while deferring a decision on his forensic expert.

Abbe Lowell has submitted challenges to government exhibits (prosecutors will squeal that he did this late but this is a response to an updated exhibit list they provided on Friday).

Although Judge Noreika excluded lifestyle and spending claims from the trial, the government has listed all of Hunter’s Wells Fargo exhibits for September, October, and November 2018. Lowell objects to these coming in as a whole.

He also objects to three photos from the phone of a woman named Zoe Kesten, who may be the third female witness against him.

Biden objects to three photos included in GTX-38 (“Photos from Zoe Kestan’s iPhone”) as having no probative value and no relevance under Rules 401 and 403. The screenshots with Ms. Kestan and one photo of Mr. Biden sleeping, in which no drug paraphernalia is displayed or otherwise evidence, are not probative of drug use, drug purchasing, or drug-related activity and are more prejudicial than probative. Any testimony from Ms. Kesten about the nature of their interactions can be elicited on direct testimony, without introduction of these three photos.

Page 7: Photo of Mr. Biden sleeping on 6/18/2018 at 10:41 AM

Page 10: Photo of Mr. Biden on facetime with Ms. Kestan on 7/22/2018 at 7:13 PM

Page 11: Photo of Mr. Biden without clothing on and a tattoo on his back on 9/10/2018 at 5:09 PM

If she is the one who will testify that Hunter was smoking crack almost constantly when they were together, prosecutors probably want these photos to prove she was with him. The September photo would be particularly important as it is the single piece of evidence between one of Hunter’s attempts at rehab and his purchase of the gun in October.

Lowell has submitted his request for additional parts of Hunter’s memoir to come in under a rule of completeness; the government objects to all of them. Here’s one example of the kinds of things (Hunter’s requested inclusion is in red) the government is trying to exclude.

This excerpt, in particular, is bound to be very hotly contested.

Finally, and of most obscure interest, Lowell is trying to exclude a significant number of communications — basically the things marked in blue (remember that prosecutors say Hallie will validate the pink files).

They include:

  • All the laptop comms from the last two weeks it was in use
  • A text sent to Hallie about the gun on January 28, 2019
  • Two videos from late December 2018
  • Two photos from January 2019 from when he was at Keith Ablow’s

On paper this makes sense. The charges against Hunter pertain to his mindset on October 12, 2018, and his awareness of drug use and gun possession in the subsequent 11 days. His mindset in February 2019 is absolutely irrelevant to those charges (and, after all, prosecutors have just succeeded in arguing that the gun shop owner’s bias against Joe Biden in 2020 is irrelevant to his actions in 2018).

But these are some of the files that the prosecutors have had a prurient obsession with, repeatedly and falsely claiming that Hunter’s addiction in 2019 shows what his addiction in October 2018 was like.

The January 28, 2019 text to Hallie, however, is one that prosecutors will almost certainly argue goes to the heart of the case.

It describes him yelling at her for throwing away the gun the previous October (though there are related comms from that period that would put this one in context).

And the four visual files are among the sleaziest (and two are Murdoch favorites), several show Hunter nude.

The specific objections regarding those are of interest given questions about provenance. Lowell suggests that a late December video may record the voice of someone besides Hunter.

Pursuant to Federal Rules of Evidence 401 and 403, Biden objects to the use of this video dated 12/29/2018 because it is dated close to three months after the relevant period when Biden purchased a handgun and is more prejudicial and inflammatory than it is probative under Rule 403. GTX-18D is also cumulative of other documentary evidence the government will introduce. Furthermore, to the extent the government also intends to suggest the voice heard in the background is Biden’s, we object to any suggestion this is Biden’s voice.

And Lowell suggests that a January 31, 2019 photo doesn’t establish whose “smoking device” was in a photo.

Biden objects to the use of this partially-redacted photo displaying alleged drug paraphernalia dated 1/31/2019 because it is dated almost five months after the relevant period when Biden purchased a gun, does not establish where the photo was taken and, therefore, who might be the owner of the smoking device that is in the background, and is more prejudicial than it is probative under Rule 403. GTX18F is also cumulative of other documentary evidence the government will introduce

Several of these happen to be the communications whose authenticity are among the most suspect, and if Lowell excluded all the texts from February 25 and afterwards and the two January photos, it would have the effect of excluding all laptop communications not authenticated by Hallie. Which makes me wonder if Lowell is abandoning his plan to challenge the authenticity of any laptop communications.

23 replies
  1. Capemaydave says:

    Question for the lawyers: what is the likely outcome if, at this late date, Hunter pleads to these charges?

    Trying to wrap my head around his decision to go to trial here.

    While I agree being a Biden put a target on his back, it was also the most likely reason he was able to earn his millions. He’s a mini Javanka. I get his sense that this whole thing is unfair. It is, but it’s the law. I hire an accountant to do my taxes to avoid running afoul of the awesome power of the Federal Criminal Justice system.

    So I’m wondering, presuming Biden is well aware he committed these crimes, why he would risk dragging the Biden name through the mud and in the process risk a Trump return to the White House?

    Which brings me back to my first question: what is the likely outcome if, at this late date, Hunter pleads to these charges?

    • emptywheel says:

      There were several problems with Sarah Isgur’s op-ed in the NYT advising just that.

      The case against him is very strong, ESPECIALLY given Noreika’s decision to exclude the doctored gun form.

      But there are several kinds of appeals.
      1) That the immunity argreement was valid (has to be post-verdict)
      2) That the POSSESSION law is unconstitutional
      3) An as-applied argument that possession law is unconstitutional as to him
      4) That the exclusion of this form was a reversible error

      Even if he won on (2), prosecutors have argued they can still jail him for the other two, form related counts, as false statements.

      And (4) requires having as-applied facts.

      Also, Hunter likely doesn’t want to stipulate to certain things, partly bc it would hurt his case in LA.

      • Capemaydave says:

        Thanks for the reply.

        That answers one non lawyer confusion of mine; in order to appeal Hunter must go to trial.

        And the Trumpites behind this are, presumably, daring Hunter, who, based on some skimming of his book, hasn’t yet gotten his head fully around his conduct [in a better US nobody with anything near his past should have been given a chance to buy a gun – a discussion for another time] is unwilling to see the wisdom of Michael Cohen in pleading, even to a sentence including jail time.

        Team Trump wants the trial. They want to smear the Biden name. That’s obvious.

        Maybe Hunter thinks he can survive cross examination and convince the jury, in this case, that he didn’t believe himself an addict when he bought the gun. Tough sledding on that one, I suspect.

        Just tough for me to game theory it out, given the circumstances of his father needing to win this election to keep Trump from destroying America, of him wanting his day in court.

        So much could go disastrously wrong, not just for him, but for the nation.

        Plead, go to prison and hope Dad commutes if he wins in November has to be one thought in his head.

        Even though it sure must sting to know he tried to plead and Trump mucked it up.

        Still wonder if any lawyer has a guess on what sentence Hunter could get at this late date with pleas in the 2 cases.

        • Clare Kelly says:

          Asked and answered here and in the archives.

          I’m wondering what purpose is served by engaging in and encouraging the kind of rampant speculation (available elsewhere) which is antithetical to the ethos of Emptywheel.

          Jury selection is underway.

          I’m grateful for Dr Wheeler’s measured analysis and that she will be covering this trial.

          Also see:
          “ WASHINGTON — The White House’s answer is a hard no: President Joe Biden will not pardon his son Hunter.”

          Peter Nicholas and Jonathon Allen
          NBC News
          December 16, 2023

        • emptywheel says:

          To be clear: if he wanted to admit to the facts of the case, he could plead and then appeal SOME but not all of these things.

          But there are reasons not to do that, and also appeals he’d forgo if he does that.

          He doesn’t have to take the stand, tho.

      • Brad Cole says:

        Reportedly, McDonnell’s case cost $22M, how much money can HB spend, may define his outcome, as it does for most enmeshed in the system.

    • says:

      Keep in mind, CapeMayDave, a plea bargain is a 2-way agreement — a contract — and both parties have to have incentive to enter into the agreement. Your question targets one end — the acceptance of an offer, but the offer must, arguably, come first. I don’t follow this case closely, but I don’t recall hearing that prosecutors have made an offer to HB in recent days. To have incentive to make an offer to a criminal defendant, prosecutors weigh the benefits of a plea bargain (e.g., saving court resources) with the costs (e.g., diminishing the ‘deterrent effect’ from failing to publicly air the cost to other drug addicts pondering future gun purchases).

      Importantly, the offer must be enticing enough for an offeree to want to accept it. People who are factually innocent do not want to accept a plea of guilt; people who are procedurally innocent,* if they believe they have enough money and ‘staying power,’ have incentive to fight.

      Lack of offer and incentive to fight (based on procedural innocence), I would guess, are the main incentives operating here…but incentives can change as this case progresses, especially if the court excludes evidence the D needs to prove his (procedural or factual) innocence.

      Some news reports have suggested that based on how the original plea bargain dissolved, another plea offer would be impermissible at this stage. I’ve not researched the validity of this claim, but if there is any ‘rule’ against this, it would likely need to arise from federal criminal procedure rules (Rule 11), the
      DOJ Justice Manual, or, even, perhaps, ethics guidelines (???) (see, e.g., ABA’s 2024 “Fourteen Principles”). Federal Rule of Evidence 410
      regulates the permissibility of entering at trial information about earlier plea negotiations, so likely cannot be the source of this speculation.

      * “procedural innocence” – a defense posture (sometimes referred to as “legal guilt” from the prosecution perspective) that damning facts necessary to prove guilt beyond a reasonable doubt are based on evidence with suspicious provinance (e.g., like files from a laptop with no established chain of custody; tampered or altered gun purchase forms; missing metadata on photos that help authenticate date, time, origin of a photo, etc.) or were gathered by investigators using constitutionally impermissible tactics (e.g., no valid search warrant issued prior to search).

      • emptywheel says:

        I don’t know whether another plea would be permissible. I know that entering into one with these highway robbers would be the height of insanity.

        They clearly reneged on the deal. The issue is only getting it into a procedural posture where Hunter can prove that.

        • Capemaydave says:

          Thanks for the discussion.

          So accepting a plea is a disaster because???

          They will impose a far greater sentence?

          I’m guessing out of ignorance.

          Perhaps an additional threat is an vocationally destructive admission, for instance via a felony plea, foreclosing any chance of earning a living as a professional requiring no felonies?

          Another way Trump exploits the monetary advantage.

          If, as argues, there is no offer on the table and such is required (pardon my ignorance, I’m neither a lawyer nor have I ever been a defendant in Federal court) then Hunter has no choice but to play the ball where it lies.


          Thanks for that explanation.

        • bmaz says:

          A plea is always possible, even after submission to the jury. But Hunter accepted one only to have the two faced prosecutor (who offered it in the first place) withdraw it over some ginned up bunk. So doubt Hunter and Lowell will do that again; the cases are defensible and not likely to result in incarceration.

  2. Upisdown says:

    Jury selection should be interesting. I would lean towards picking jurors who are gun owners and/or have seen addiction problems in their families.

  3. zscoreUSA says:

    About the devices, I looked back at some of the Marco Polo report and noticed a couple of things.

    1) on 2/9/19, there is a still of a movie recorded on what is described as a “laptop”. In the still image, a phone is barely visible, but appears to be an iPhone 6s, which might be the iCloud (03) device

    2) in the same section of the report, Hunter is described as making a recording on a “laptop” and taking a mirror selfie using the “laptop”. But looking at that still image, the device is most certainly an iPad based on positioning in portrait and lack of keyboard. Zoomed out too far for me to distinguish which type of iPad.

    This second point demonstrates that they consider an iPad to be a laptop. So anytime the report refers to Hunter making a movie on his “laptop”, they imply it’s the Mac Isaac laptop, which is a MacBook Pro, but it could be an iPad. Same goes for describing the device that was stolen in August. Which is implied and assumed by right wing narratives to be a MacBook, but I suspect was an iPad Pro, which is possibly iCloud (04).

  4. bmaz says:

    So, potential juror #2 in the oh so important Hunter Biden trial was required to state she had given a minor contribution to Hillary Clinton? That type of garbage would never have been allowed in any trial I have ever done. It is akin to asking “what is your religion and why”? This garbage is killing the American criminal justice system, and nobody pays attention to that slippery slope.

  5. bmaz says:

    What possible reason is there for my last comment to be in “moderation”?

    [Moderator’s note: Several other comments by other community members have triggered the algorithm this morning and they’re not complaining — just you. Stop it; your next complaints will be binned because you’re cluttering threads, off topic, and sucking up resources. /~Rayne]

    • Fancy Chicken says:

      Mr. Bmaz I’m sorry you’re having to endure the plight of us plebs after many years of not having to experience this. It must feel quite chafing.

      I say this to assure you that you are not being targeted, nor are the rest of us for that matter when we trigger moderation even for what we may think is the most innocuous post.

      It’s apparent there is some bad blood right now going on but I hope you can put aside the idea you are being specially singled out for moderation as your insights will be very valuable this week.

      I’m sure moderation will be extra tight this week because this trial will draw trolls. We all need to be patient with the moderation process this week. As annoying as it is just roll with it like we do. The exasperation isn’t worth it.

      With Much Kindness,


      • bmaz says:

        With much kindness, thank you for your words. It must have been pleasingly cathartic for you to say them. And ignorant of what is going on. And you cannot assure me of diddly squat, don’t mockingly think you know, or can know. And don’t call me “mr. . Under the current ethos of this blog, I am still a “Dr.”, not a Mr.

        • Fancy Chicken says:

          You probably won’t read this as it’s a few days past. But…

          Dr. bmaz please forgive me for not knowing you have a doctorate. I refer to Dr. Wheeler as such because I think it’s important to acknowledge that and will do the same for you.

          I am of course not privy to particular goings on but I am privy to the annoyance of moderation.

          I also see that you bite when someone is trying to genuinely offer some kindness upon observing your pain. Sorry you thought I was concern trolling. As I will correct myself on the above so will I on this matter and not make the same mistake again.

  6. Badger Robert says:

    Good analysis.
    Wouldn’t attorney Lowell want the prosecution to attempt to authenticate the messages and proceed to challenge the authentication to demonstrate how the evidence was messed up? He might lose his objections but the jury might get the sense of a case constructed out of straw.
    Who are these women that are going to assert that Biden was an addict? I doubt they are unimpeachable witnesses.

  7. Badger Robert says:

    The trial court seems to be handing appealable issues to the defense. She wants this off her docket and into the appeal process. If Biden Sr. wins re-election the whole thing disappears, one way or another.

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