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Univ. of South Carolina School of Law

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Wednesday, March 28, 2012

Steven Spielberg, The Norman Rockwell Painting That Got Away, And Federal Rule Of Evidence 803(8)

According to Steven Spielberg and the Norman Rockwell painting that got away, in 1973, the Normal Rockwell painting, Russian Schoolroom

Russian Schoolroom

was stolen from an art gallery in Missouri in 1973. Then,

Cut to 1988, where an auctioneer in New Orleans slams the gavel, and the same painting is sold to a New York art dealer for about $70,000. She shows the painting publicly, advertises it, and by the following year it's hanging on Spielberg's wall.

Next big scene: in February 2007, an assistant to the film director sits at a computer and notices that "Russian Schoolroom" is listed on an FBI website of stolen art works. Spielberg immediately contacts the feds; they thank him for being a good citizen and tell him to hold the painting for safekeeping until they can figure out whom it belongs to.

Soon, Spielberg and the FBI are being sued in U.S. District Court in Las Vegas by Nevada resident Jack Solomon, who had loaned the painting to the Missouri gallery whence "Russian Schoolroom" was stolen. Solomon, a lithographer and art dealer who worked with Rockwell to produce prints of the artist's work, claims the painting still belongs to him, and he wants it back.

So, what happened in that case and what was one of the evidentiary arguments on appeal? Let's take a look at the recent opinion of the Ninth Circuit in Solomon v. Spielberg, 2012 WL 1008667 (9th Cir. 2012).

According to this article, the district court found that the painting belonged to Judy Cutler, who bought the painting at auction, sold it to Spielberg, and later swapped the painting with Spielberg for another Rockwell painting of "equal or greater value." Meanwhile, the district court did grant summary judgment in favor of Solomon and Art Loss Register, Inc. on Cutler's claims of defamation and intentional tort against her.

So, why did the district court find that Cutler was the owner of the painting? Well, Cutler presented teletypes produced by the FBI, which were "recorded communications among FBI offices in St. Louis, New Orleans, Chicago, and New York regarding the location and status of the Russian Schoolroom in October and November 1988." 

In appealing the district court's verdict, Solomon claimed that these teletypes were inadmissible hearsay, but the Ninth Circuit disagreed, finding that they were public records under Federal Rule of Evidence 803(8), which provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

Solomon claimed that the criminal exception contained in Federal Rule of Evidence 803(8)(A)(ii) applied, but the Ninth Circuit disagreed, finding that "[b]ecause this is not a criminal case, Solomon's arguments regarding constitutional prohibitions on the admission of matters observed by law enforcement officers are inapplicable." 

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/03/according-to-steven-spielberg-and-the-norman-rockwell-painting-that-got-away-in-1973-the-normal-rockwell-painting-russian.html

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