EvidenceProf Blog

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

Friday, July 20, 2012

The Dark Knight Rises, Again: D.C. Circuit Case Involves Drunk Man Dressed As Batman & Alleged Employee Admissions

Da Da Da Da DA DA BATMAN! As with a large swath of the country, I've been hooked on Batman since an early age. It started with watching the campy Adam West series from the 1960s in syndication as a kid. My brother and I were the Dynamic Duo of Batman and Robin (in Underoos) for Halloween. Then, it was all about Tim Burton's "Batman" movie, which (as was the case in many households), was the first movie that we bought on VHS. Soon thereafter, I got the Batman video game, which was in constant rotation on my NES. Many people found "Batman Returns" too dark, but I thought that it was better than the original, with Michelle Pfeiffer being the perfect Catwoman, Danny DeVito being suitably creepy as the Penguin, and Christopher Walken doing his best Christopher Walken. But then, Joel Schumaker deep sixed the franchise with the silly "Batman Forever" and the deplorable "Batman & Robin."

Eight years later, Christophen Nolan (the genius director behind movies such as "Memento" and "Inception") would resuscitate the Caped Crusader with the terrific "Batman Begins" and then follow it up with the Heat-ish "The Dark Knight" (which I saw them filming on my way to work for a while). Now, Nolan has completed his Batman trilogy with "The Dark Knight Rises," with many speculating that the villain of Bane will have an effect on the Presidential election. If that's the case, it wouldn't be the first time that the Batman will have an effect on a governmental institution. Instead, the Caped Crusader has long been a part of our nation's judicial system as was the case in Belton v. Washington Metropolitan Area Transit Authority, 20 F.3d 1197 (D.C. Cir. 1994).

In Belton,

Michael Belton spent the evening of July 10, 1989 [less than a month after the release of Burton's "Batman"] outfitted in a Batman cape, roaming the streets of Georgetown and taunting motorists. His blood alcohol level, measured when the evening's revels came to a disastrous end, was .424 percent....Keith Brice, a bus driver for the Washington Metropolitan Area Transit Authority ("WMATA"), noticed Belton on his early evening rounds and later encountered him directly at the intersection of M St. and Wisconsin Avenue. As the bus waited at a red light before turning right onto Wisconsin Avenue, Belton approached, cursing and banging on the bus door. Because it is against standard WMATA policy for a bus driver to accept riders except at a bus stop, Brice waved Belton away. Seeing Belton move out of sight, Brice inferred that he had retreated to a position of safety on the sidewalk. In fact, however, Belton had flattened himself against the bus, evidently invisible to Brice because of the side-view mirror's "blind spot". When the light turned green, Brice began to turn onto Wisconsin, possibly—the evidence is in conflict—in the face of Belton's continued knocking on the bus door. Belton slid beneath the bus; although Brice stopped the bus before the wheels could roll over Belton, the bus's undercarriage inflicted serious injuries.

Belton subsequently brought a negligence action, and the jury awarded him $619,000 in damages. In response, WMATA argued that it was entitled to judgment as a matter of law and, In the alternative, asked for a new trial. One of the grounds for WMATA's appeal was that the district court erred in applying Federal Rule of Evidence 801(d)(2)(D), which provides that a statement is not hearsay if the statement is offered against an opposing party and

was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed....


an officer who investigated the accident later the same evening and talked with a number of witnesses testified that the bus driver had told him that as he "started to make his turn", Belton "was either walking and/or running alongside of the bus continually banging on the bus". This contradicted the defendant's theory at trial that there was nothing to put the driver on notice of Belton's peril, and specifically contradicted Brice's trial testimony that Belton's banging stopped altogether after he waved Belton away.

WMATA's argument was

that in fact the officer was unable to say whether the statement about continued banging on the door came from Brice or from other persons the officer interviewed, and that therefore the out-of-court declaration was not shown to have been an admission....The officer indeed testified that he could not separate the statements of the bus driver from ones made by other witnesses or a fellow officer, although in context the concession may have referred only to the officer's written report, which WMATA used on cross-examination.

The problem for WMATA was that it did not raise this issue at trial, but the D.C. Circuit found that this problem was overcome:

WMATA raised no hearsay objection at trial, but plaintiff has waived the waiver by not raising defendant's failure on appeal....Defendant's omission may account for the obscurity of the record. On remand, assuming proper objection by WMATA, the statement is clearly not allowable as an admission unless the officer can actually trace it to Brice.



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