EvidenceProf Blog

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

Saturday, June 2, 2012

Outsourcing Blues

It's not evidence law related, but here's a guest post I did over at The Faculty Lounge: Vince Vaughn, Owen Wilson, Interns, Outsourcing, and Why the United States Should Enact a National Film Incentive. Many thanks to Tim Zinnecker for posting it.


June 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Able To Waive Attorney-Client Privilege In A Single Disclosure: 9th Circuit Rejects Selective Waiver Doctrine In Superman Case

In its 1977 opinion in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977), the Eighth Circuit adopted the selective waiver doctrine, which allows corporations seeking to use a confidentiality agreement to disclose to the government information protected by the attorney-client privilege and still maintain that privilege against all others. Here's the relevant language from the court's opinion:

We finally address the issue of whether Diversified waived its attorney-client privilege with respect to the privileged material by voluntarily surrendering it to the SEC pursuant to an agency subpoena. As Diversified disclosed these documents in a separate and nonpublic SEC investigation, we conclude that only a limited waiver of the privilege occurred....To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.

But since Meredith, every other federal circuit to address the issue has rejected the selective waiver doctrine:

In re Qwest Commc'ns Int'l, 450 F.3d 1179, 1197 (10th Cir.2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir.2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir.1997); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1416–18 (Fed.Cir.1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir.1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981).

After In re Pacific Pictures Corp., 2012 WL 1640627 (9th Cir. 2012), a case involving D.C. Comics suing the heirs of the creators of Superman and others, you can now add the Ninth Circuit to their ranks.

Continue reading

June 2, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, June 1, 2012

Snow White & The Real Huntsman: U.S. v. Dade & How Modern Depictions Of Snow White Might Change The Way Courts Use Her Name

With today's release of Rupert Sanders' directorial debut, "Snow White and the Hunstman," there have now been three pieces of pop culture in the last few months tweaking the classic fairy tale of "Snow White," with the other two being Tarsem Singh's cheeky "Mirror Mirror" and the ABC TV show "Once Upon a Time." Critics have contended that the version of Snow White played by Lily Collins in "Mirror Mirror" is a "feminist reincarnation," "both innocent and powerful, able to fight her own battles and make decisions independently." Kristen Stewart's Snow White in "Snow White and the Hunstman," has been described "as a warrior princess who saves a ravaged kingdom from an evil Queen..., after being trained by a huntsman...instructed to kill her." And Ginnifer Goodwin's Snow White in "Once Upon a Time," transported to present day, ends up engaging in an affair with a married Prince Charming. In other words, in each of these three modern retellings, the story's the same: This isn't your grandmother's Snow White. So the question becomes: As we drag Snow White into the 21st Century (literally, in the case of "Once Upon a Time"), do we change the way that we use her name as she is transformed from the essence of purity and innocence to something a good deal more complicated (and realistic)? And what effect will this have on litigation? Specifically, could we see a case like last year's United States v. Dade, 2011 WL 6301123 (D.Idaho 2011), in the next decade or so?

Continue reading

June 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

Unimpeachable: Supreme Court Of South Carolina Finds Trial Court Conducted Incorrect Felony Impeachment Analysis

Similar to its federal counterpartSouth Carolina Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

And, like most federal courts, South Carolina courts apply a five factor test for determining whether evidence of prior convcitions is admissible under Rule 609(a)(1):

(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.

In State v. Howard, 720 S.E.2d 511 (S.C. 2011), the Supreme Couth of South Carolina find that the trial court badly botched its analysis of the first factor, requiring a new trial. So, what happened?

Continue reading

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

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.

Continue reading

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

Tuesday, May 29, 2012

Rubber & Glue: Supreme Court of California FInds No Problem With Crossover Character Evidence Rule

Federal Rule of Evidence 404(a)(2)(B) provides that in a criminal action

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait....

Somewhat similarly, California Evidence Code Section 1103(b) provides that

In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

In other words, the California rule, like the federal rules, allows for the prosecution to attack the character of the defendant after the defendant has attacked the character of the victim (although the California rule is limited the evidence of violent character). So, what's the basis for these rules, and how many states follow the federal rule? Let's take a look at the recent opinion of the Supreme Court of California in People v. Fuiava, 269 P.3d 568 (Cal. 2012).

Continue reading

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

Monday, May 28, 2012

Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case

Federal Rule of Evidence 410(a)(3) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure....

Rule 410(a)(3) explains why incriminatory statements that Volkan Mergen made during a plea allocution ould have been inadmissible against him in United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010), if he hadn't signed a waiver. That waiver explains why his statements were admissible against him. And Federal Rule of Evidence 410(b)(1) likely explains why the defendant could place his statements in context.

Continue reading

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

Sunday, May 27, 2012

Juvenile Record: Court Of Appeals Of North Carolina Finds Error In Allowing Impeaching Of Defendant Through Juvenile Adjudication

Similar to its federal counterpartNorth Carolina Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the language of Rule 609(d) makes clear, juvenile adjudications are per se inadmissible to impeach the credibility of criminal defendants, which is why the Court of Appeals of North Carolina in State v. Lacy, 711 S.E.2d 207 (N.C.App. 2011), found that the trial court erred. But was that error reversible or harmless?

Continue reading

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