EvidenceProf Blog

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

Friday, June 15, 2012

Adam Sandler, That's My Boy, You Don't Mess With The Zohan, Little Nicky, Prior Consistent Statements & The Rule Of Completeness

My friend went to NYU in the 1980s and remembers Adam Sandler, a fellow NYU student, coming into her dorm and doing his comedy bits. From there, Sandler graduated to doing his bits on "The Cosby Show" and the MTV game show "Remote Control" (I had the "Remote Control" video game for my "Commodore 64"). And, from there, it was "Saturday Night Live" and two decades of box office success running the gamut from "Airheads" to "Zohan."

Along with success has come litigation. Robert Cabell sued the Sandman and company, claiming that "You Don't Mess With The Zohan" was copyright infringement because of the similarity between the Zohan character and his Jayms Blonde. The Southern District of New York, however, granted the defendants' motion for summary judgment, and the Second Circuit affirmed in Cabell v. Sony Pictures Entertainment, Inc., 425 Fed.Appx. 42 (2nd Cir. 2011), finding that

Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters' fighting poses, there is no plausible basis for a reasonable jury to find that the parties' respective expressions of the concept of a crime-fighting hairdresser are substantially similar.

Also, Douglas Stromback brought an action against Sandler and others, alleging that "Little Nicky" was copyright infringement because of its similarity to his poem entitled "The Keeper" as well as his original treatment and outline of a screenplay based upon that poem. The Eastern District of Michigan granted the defendants' motion for summary judgment, and the Sixth Circuit affirmed in Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004), finding that

"The Keeper" poem and screenplay and "Little Nicky" are not at all similar. The only similarities arise from common and well-known themes, plots, and character traits that "are readily ascertainable by other means...."

Other times, courts cite dialogue from Sandler's movies. In Krumnow v. Krumnow, 174 S.W.3d 820 (Tex.App.-Waco 2005), Chief Justice Gray wrote a special note, which, inter alia, objected to the majority's late insertion of footnote 4 as follows:

So my response to footnote 4 is, quoting Adam Sandler in The Wedding Singer, "Once again, things that could have been brought to my attention YESTERDAY!" The Wedding Singer (New Line Cinema 1998) (motion picture).

Additionally, I count at least 3 opinions that reference this classic scene from "Billy Madison." For instance, in In re King, 2006 WL 581256 (Bkrtcy.W.D.Tex.,2006), the court denied the defendant's motion as incomprehensible, with the following footnote:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison." after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Today sees the release of "That's My Boy," the first R-rated release under the Sandler brand. The film's title was also a key statement in the recent case, State v. Williams, 2012 WL 892915 (Ohio App. 8 Dist. 2012).


In Williams, James L. Williams was convicted of aggravated burglary, aggravated robbery, and kidnapping, all with firearm specifications, notices of prior conviction, and repeat violent offender specifications, and for having a weapon while under disability. According to the facts adduced at trial,

Fifteen-year-old Clarence Wilson invited a friend, Desmond Franklin, to his house that afternoon to play video games. The two boys played for a time, then Clarence's mother left the house to do laundry. While his mother was away, Clarence received a telephone call from a neighbor, Shawn Crenshaw. Crenshaw wanted to come over and Clarence agreed.

Crenshaw joined the others in playing video games for a time before he volunteered to go to the store to obtain a cigar and snacks. Standing at the doorway, Desmond watched Crenshaw leave; he saw Crenshaw meet with two other young men outside and begin walking with them toward the store.

Desmond recognized one of the other young men as Brazie Norman, whom his friend introduced to him the day before. He also recognized the other young man as Williams because his friend "recently had pointed him out, called Williams “Cool James,” and told Desmond, "That's my boy." 

Later, Crenshaw, Norman, and Williams returned and stole a flat screen TV, a Droid phone, and an Xbox 360 at gunpoint. Desmond thereafter gave a written statement to police in which he stated that he could identify Williams from the "That's my boy statement" and that Norman was like a brother to him. Desmond, however, failed to pick Norman's photo from a photo array that police officers showed to him.

At trial, after Desmon testified and defense counsel cross-examined him, the trial court allowed the prosecution to introduce his written statement to police. After he was convicted, Williams appealed, claiming, inter alia, that the written statement should have been deemed inadmissible. In rejecting that appeal, the court found that the statement was possibly admissible under two rules of evidence: 

(1) Ohio Rule of Evidence 801(D)(1)(b), which provides that a statement is not hearsay if

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive; and

(2) Ohio Rule of Evidence 106, the rule of completeness, which provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.

And, while the court didn't explicitly state which of these two rules applied, it gave the following reasoning:

In this case, Williams's defense attorney referred to Desmond's written statement during cross-examination. Counsel's questions were designed to imply that Desmond was not being truthful during his direct examination when he stated he never met Williams, because when the police interviewed him soon after the incident, he indicated he had. Desmond also testified Norman was like a brother to him, but failed to choose Norman's photo from the original array the detective showed him. On redirect examination, the trial court permitted Desmond, in fairness, to read his written statement in order to explain and to place in context the portions on which defense counsel had focused....

Here, Desmond read his own statement after Williams had used portions of it on cross-examination to challenge Desmond's credibility with respect to both his acquaintance with Williams and his observations at the time of the incident....No abuse of discretion occurred under these circumstances.



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