EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 30, 2012

Kevin Costner, Kevin Reynolds, "Waterworld," "Hatfields & McCoys," & Communicated Character

With "Hatfields & McCoys," director Kevin Reynolds and star Kevin Costner have now teamed up for the most watched non-sports program in basic cable history as well as what was at the time the most expensive movie ever made: "Waterwold." Indeed, "Hatfields & McCoys" is the duo's fifth pairing, with the others besides "Waterwold" being the underrated "Fandango" (which no less than Quentin Tarrantino has called "one of the best directorial debuts in the history of cinema"), one of my two favorite Amazing Stories of the '80s (the other being Robert Zemeckis' "Go the Head of the Class"), and "Robin Hood: Prince of Thieves" (best remembered for Costner's attempt at a British accent, that Bryan Adams' song, and those POV arrow shots that really would have benefited from today's 3D). And while they're not on the level of, say, a Scorsese and De Niro, that's a pretty impressive body of work. Indeed, Reynolds' collaborations with Costner are his only real directorial efforts that have made an impact (he did co-wrote the screenplay for "Red Dawn," which we somehow were allowed to watch in elementary school in the 1980s). The only other thing that he's directed that even created a ripple was his 2002 adaptation of Alexandre Dumas' "The Count of Monte Cristo," which I only remember from its trailer with the awesome tag line, "Count on adventure. Count on intrigue."

But with "Hatfields & McCoys," Reynolds and Costner seem to have really struck a nerve and tapped into something that Americans really want to see (at least in the wake of May sweeps). And that shouldn't be surprising. The story of the Hatfields and the McCoys, and indeed, even just those names are still part of the national conversation and something that you might hear about at dinner tables across the nation as well as in our courts' judicial opinions.

Take, for example, Hess v. McBride, 2008 WL 191250 (N.D.W.Va 2008), in which the petitioner asked the trial judge to recuse himself:

At the omnibus hearing, the petitioner testified that he told his attorney's paralegal that there was a family conflict. He further testified that his own father knew more about it. However, when pressed, the petitioner testified that "[i]t had something to do with my uncle and some land. [The judge's] brother beat my uncle up with the barrel of a shotgun because he wouldn't get off of the land."...At the same hearing, petitioner's trial counsel testified that he had been given no specific allegations regarding any conflict between the petitioner's and judge's families. Rather, it was a "family, a Hatfield and McCoy type of thing. I obviously didn't think it was important at the time. I apologize but it didn't seem to me to be a direct conflict of any kind."

And then there's Miller v. Cudahy Co., 656 F.Supp. 316 (D.Kan. 1987), in which the judge found that

From the first threat of filing this action (where defendants threatened plaintiffs that, if suit were filed, defendants' attorneys would drag the matter out until plaintiffs were broke and defendants owned their land), to the closing of the last remedial hearing (where both defendants and plaintiffs intimated that they would oppose any plan administration which gave any role to the other side), the drama of this case has resembled the Hatfields' and McCoys' dispute.

Indeed, courts frequently use these family names in hypotheticals as the United States District Court for the District of Oregon did just a few months ago in Reames v. AM Car Rental Services, Inc., 2012 WL 786840 (D.Or. 2012):

Unlike future income lost to injury, legal fees are avoidable. It is essential to distinguish between the likely course of litigation and the legal rights of the parties. Suppose the McCoys sell a garden rake for $10 to the Hatfields, who find it defective. The Hatfields could buy a new rake at Sears for $10, but instead they file suit against theMcCoys under the Magnuson–Moss Warranty Act. They state in the complaint that they anticipate attorneys' fees of $50,000 (for a total amount-in-controversy of $50,010), because the enmity of the parties makes settlement impossible. Assume this is factual—that the Hatfields and McCoys will fight the case to the last dollar in their bank accounts. Still, the amount “in controversy” between the parties at the outset is no more than $10, the sum the McCoys would have to pay to resolve the case on the date it was filed.

None of this should be too surprising because the Hatfields and McCoys are still feuding. As an example, take a look at Bowens v. McCoy, 2012 WL 1231938 (Ky.App. 2012), a decision from last month addressing a property dispute between the two families.

The feud between the Hatfields and McCoys has taken on almost a mythical quality such that it can be placed along side great works of literature like "Romeo and Juliet." As an example, take Williamson v. State, 333 A.2d 653 (Md.App. 1975), in which the Court of Special Appeals of Maryland described a bitter interfamily feud as "hardly so aristocratic as the Montagues and Capulets, nor quite as bloody as the Hatfields and McCoys...." And when an interfamily feud like the one between the Hatfields and McCoys ends with a killing, the nature of that feud has evidentiary consequences.

Usually, when a defendant is charged with murdering a victim, he cannot present evidence of specific instances of violence by the alleged victim. In essence, he can't use this evidence to prove that the alleged victim had a propensity for acting violently and likely acted in conformity with that propensity at the time of his death.

A defendant can, however, present evidence of specific instances of violence by the alleged victim if he is claiming self-defense and not using the prior acts to prove the alleged victim’s propensity to act violently and likely conformity with that propensity at the time of the crime charged. If the defendant can present evidence that he was aware of the alleged victim’s prior acts of violence, he can admit evidence of them, not to prove propensity/conformity, but for the purpose of showing his reasonable apprehension of immediate danger. Some courts refer to this use as “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. See, e.g., State v. Laferriere, 945 A.2d 1235 (Me. 2008). And that's exactly what happened in Williamson.



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