EvidenceProf Blog

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

Saturday, March 31, 2012

Right Here, Right Now?: 3rd Circuit Finds Unidentified Declarants Can't Give Admissible Excited Utterances

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

And, like all Rule 803 hearsay exceptions, this excited utterance exception applies "regardless of whether the declarant is available as a witness...." But what if the declarant is unidentified? Well, then we have a problem, according to the recent opinion of the Third Circuit in Canton v. Kmart Corp., 2012 WL 1035527 (3rd Cir. 2012).

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March 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, March 30, 2012

The Color Purple, The Rule Against Hearsay, And Workplace Discrimination

Sticking with the Spielberg/movie theme from the last few days, today's post deals with the recent opinion of the United States District Court for the District of Kansas in Hudson v. AIH Receivable Management Services, 2012 WL 830515 (D. Kan. 2012). In Hudson, Linda Hudson brought an action against AIH, asserting claims sounding in, inter alia, race discrimination, harassment, hostile work environment and retaliation in connection with her termination from her job. In support of her claims, the

Plaintiff testified that, within a couple of days after he started at AIH, [a co-employee] quoted lines from The Color Purple every few days, like "I may be black, I may be poor, I may be ugly, but dear God, I'm here." Plaintiff was offended by [the co-employee]'s frequent quoting of lines from The Color Purple because she felt that he was making fun of the terrible plight of the characters in the movie.


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March 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2012

George Lucas, Mike Judge, And The Best Evidence Rule

After my post yesterday about Steven Spielberg, I thought that I would follow up with a post about George Lucas. If you've taught the Best Evidence Rule, you're likely aware of Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986). This is the classic case in which 

Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie "The Empire Strikes Back." Seiler claimed that creatures known as "Imperial Walkers" which appeared in The Empire Strikes Back infringed Seiler's copyright on his own creatures called "Garthian Striders." The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981.


At trial, Seiler could not produce his original drawings of his creatures and instead sought to prove his case through "reconstructions" he created for trial.  Seiler alleged that the Best Evidence Rule did not apply to his drawings because they did not consist of letters, words, or numbers, meaning that they were not "writings" as defined in Federal Rule of Evidence 1001(1)Rule 1001(1), however, defines a "writing" as "letters, words, numbers, or their equivalent set down in any form," and the Ninth Circuit found that Seiler's  drawings "'consist[ed] not of letters, words, or numbers’ but of ‘their equivalents.'"  It found that the drawings were "equivalents" because "[j]ust as a contract objectively manifests the subjective intent of the makers, so Seiler's drawings are objective manifestations of the creative mind." So, are there any cases similar to Seiler? Well, you can ask Mike Judge.

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March 29, 2012 | Permalink | Comments (0) | TrackBack (0)

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).

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March 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

It's Not About The Money: Court Of Criminal Appeals Finds Dementia Rendered Statement Not Against Interest

Similar to its federal counterpartTennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

Whenever I initially explain Rule 804(b)(3) to students, the example I give of a statement that is against a declarant's pecuniary interest is a statement by a declarant that he gave or owed money to a defendant charged with stealing that money. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Cooper, 2012 WL 950103 (Tenn.Crim.App. 2012), contains that exact fact pattern, but with a twist.

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March 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2012

10 Years Have Got Behind You: Supreme Court Of Georgia Discusses Different Tests For Remote Conviction Impeachment

Similar to its federal counterpartOCGA § 24–9–84.1(b) provides that

Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated in this subsection, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, it is very difficult for a party to impeach a witness through evidence of a conviction "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date..." The front end of OCGA § 24–9–84.1(b) is thus easy to calculate. If Witness was convicted on 3/26/2010 and released from incarceration on 3/26/2012, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2012 because the date of release would be the later of the two dates. And if Witness was subjected to pre-trial detention from 8/26/2010 through 2/26/2010 and then convicted on 3/26/2010 and sentenced to time served, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2010 because the date of conviction would be the later of the two dates. But what about the back end? For OCGA § 24–9–84.1(b) or federal counterpart to apply, more than ten years need to elapse beteen the starting date of conviction and...what end date? That was the question of first impression taken up by the Supreme Court of Georgia in its recent opinion in Clay v. State, 2012 WL 933080 (Ga. 2012)

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March 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 25, 2012

Keeping The Faith: 4th Circuit Finds Questions About Buddhist Meditation Ritual Didn't Violate Rule 610

Federal Rule of Evidence 610 provides that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

So let's say that the prosecution seeks to cross-examine a defense expert witness by, inter alia, asking him about his participation in a "dark retreat," a Buddhist meditation ritual. Would such questioning run afoul of Rule 610? According to the recent opinion of the Fourth Circuit in United States v. Argueta, 2012 WL 941533 (4th Cir. 2012), the answer is "no."

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March 25, 2012 | Permalink | Comments (0) | TrackBack (0)