EvidenceProf Blog

With No Objection In The Middle There's Some Leeway: EDVA Requires No Contemporaneous Objection In Golden Rule Appeal

Sometimes, an attorney's closing argument is so over the top that it is easy for opposing counsel to object. Think Al Pacino's closing argument in ...And Justice for All. Other times, it is exceedingly difficult to raise a contemporaneous objection. For example, can you imagine trying to object in the middle of Matthew McConaughey's closing argument in A Time to Kill?  

So, should a contemporaneous objection during closing argument be required? According to the recent opinion of the United States District Court for the Eastern District of Virginia in Ray v. Allergan, Inc., 2012 WL 1979226 (E.D.Va. 2012), the Fourth Circuit has issued contradictory opinions on the issue. So, could those opinions be harmonized?

In Ray,

Douglas M. Ray, Jr....filed [an] action against Allergan after he received three BOTOX® injections between January through July 2007 to treat a dystonic movement disorder of his right hand....Allergan manufactured, tested, marketed, and sold BOTOX®, a drug first approved by the United States Food and Drug Administration...in 1989....Ray received BOTOX® injections on three dates: January 10, 2007, April 3, 2007, and July 17, 2007....Ray allege[d] that he sustained a severe reaction to the BOTOX® that required hospitalization and left him totally disabled....Allergan contend[ed] that Ray's injuries are due to a pre-existing neurodegenerative condition.

At the end of trial, the jury awarded Ray compensatory damages in the sum of $12,000,000 and punitive damages in the sum of $200,000,000, with the punitive damage award reduced to $350,000, the maximum punitive award allowed by Virginia law.

Allergan thereafter moved for a new trial, claiming, inter alia, that these portions of the plaintiff's closing argument were improper:

This [picture] was taken just a few months before he got BOTOX. This is him and Peggy in their shop, Fancy Hats. Do you think he would have taken 512 million to give up the last 15, 20 years of his life and to have this massive brain damage? Do you think he would have made that trade? I'll give you $12 million, you can forget the rest of your life. You're just going to be in bed with brain damage. Do you think he would have made that trade? Do you think any reasonable person would? I don't....

Can you imagine the horror when he first realized that something was terribly wrong? He couldn't walk right. He couldn't think right. Couldn't speak right. He's not going to be able to take care of his mother and his wife. His mother is going to have to go live somewhere else. Can you imagine?...

[T]hink of all the Douglas Rays in the United States that were being injected with BOTOX® in 2007 for mild to moderate non-life-threatening conditions.

So, were these statements improper? According to the Eastern District of Virginia, the answer is "yes." As support, the court cited to Leathers v. General Motors Corp., 546 F.2d 1083 (4th Cir.1976), in which the Fourth Circuit found these statements to be improper:

Mr. Leathers is going to live those 26.9 years disabled. We submit the disability was caused by the steering defect in a General Motors car.

I don't know, again, how to put a number on that. It's the loss of the use of your legs, to some extent, the loss of doing sports or hobbies which are athletic, the general limitation in your job duties, general limitation in your enjoyment of life, pain, further medical treatment over a period of 26.9 years. 26.9 years are a lot of years, somewhere close to 9,000 days.

I don't know how much you how much you put a dollar value on it, but how much dollars would it be worth to you, $30 a day, $20, $300 a month? The only way he can be compensated is with money. He can't be compensated with a new leg or having his leg put back in good condition, and I ask that you consider that.

The Eastern District of Virginia noted that some courts find that such "can you imagine" or "put yourself in the plaintiff's shoes" arguments are per se reversible as "Golden Rule" arguments (i.e., counsel is asking the jury to do unto the plaintiff as they would wish it to be done to them). The court then noted that the Fourth Circuit didn't go that far in Leathers but did find reversible error because

Counsel for defendant was placed in an unnecessarily difficult and embarrassing position. To interrupt argument by plaintiffs' counsel might antagonize the jury, and would certainly emphasize the point.

Based upon this conclusion in Leathers, the court in Ray had no problem finding reversible error. And, as with the Fourth Circuit in Leathers, the Eastern District of Virginia found no problem with the lack of a contemporaneous objection. Moreover, it was able to do so despite recognizing that, under some Fourth Circuit precedent and "[i]n general, failure to object to a closing argument waives the right to attack the verdict on a motion for a new trial based on a prejudicial closing argument."

How? Well, according to the court, while a contemporaneous objection to closing argument is usually required, "an argument that offends Leathers...is excused from the contemporaneous objection requirement."

-CM

Ridley Scott's Prometheus, An Origin Story For The Rules Of Evidence & The Largest Sexual Harassment Award in U.S. History

Has any director come out of the starting gate more surely than Ridley Scott? In 1977, the Brit, then known primarily for commercials, made his big screen debut with "The Duellists." Based on a story by Joseph Conrad, "The Duellists"

is narrowly focused on a longstanding feud between two officers in Napoleon's army. Harvey Keitel plays Feraud, a plebeian, hot-tempered lieutenant who develops such a hatred for the more aristocratic D'Hubert (Keith Carradine) that he challenges him to several gun duels over two decades that end in injury to both but never death.

Often described as a companion piece to Stanley Kubrick's "Barry Lyndon," "The Duellists" is an engrossing cocktail of obsession and honor. It is also my favorite Ridley Scott film and sports a 90% fresh rating at Rotten Tomatoes. Scott's next two films? "Alien" and "Blade Runner," frequently cited as among the best and most influential horror and science fiction films of all time.

So, what other directors can match up to Scott with their first 3 feature (non-TV) films? The best comparison would be Stephen Spielberg, who also debuted with a smaller, quality film ("The Sugarland Express") and then followed it up with two movies -- "Jaws" and "Close Encounters of the Third Kind" -- which are considered among the best and most influential horror and science fiction films of all time.

Who else belongs in the same conversation? Off the top of my head, here would be the rest of my top 10, in no particular order:

•Wes Anderson, with "Bottle Rocket," "Rushmore," and "The Royal Tennenbaums;"

•The Coen Brothers, with "Blood Simple," "Raising Arizona," and "Miller's Crossing;"

•Paul Thomas Anderson, with "Sydney," "Boogie Nights," and "Magnolia;"

•George Lucas, with "THX 1138," "American Graffiti," and "Star Wars;"

•Rob Reiner, with "This is Spinal Tap," "The Sure Thing," and "Stand by Me;"

•Roman Polanski, with "Knife in the Water," "Repulsion," and "Cul-de-sac;"

•Terrence Malick, with "Badlands," "Days of Heaven," and "The Thin Red Line;" and

•Quentin Tarantino, with "Reservoir Dogs," "Pulp Fiction," and "Jackie Brown."

I'm sure that I'm missing some others (Preston Sturges, Tim Burton, Spike Jonze, Spike Lee, and David O. Russell, to name a few), and I only included directors if I saw each of their three first films. So, tying back to yesterday's post, François Truffaut, who directed "Fahrenheit 451," had "The 400 Blows," "Shoot the Piano Player," and "Jules et Jim" as his first 3 films. And while all of Truffaut's first three films were lavished with critical praise, I've never seen Piano Player.

If you asked 10 people which of the above directors had the best first three feature films, you could easily get three different responses. But if you asked those 10 people which of the above directors had the most influential first three films, the answer is likely to be Scott or Spielberg, both of whom had 2 (literal) monster smashes that still reverberate in modern cinema. Scott's new film, "Prometheus," which opens today, is a return to his roots, serving as a sort-of prequel to "Alien." And, according to Scott, the film was inspired by the myth of Prometheus:

"We named the ship Prometheus as a reference to the character in Greek mythology who alternatively gave fire to man or shaped man’s image from clay," Scott explains. "In either case, he was instrumental in changing the entire evolution of mankind. He also angered the gods in a big way and suffered mercilessly for it. All three aspects of the myth have analogies in our story." 

In this sense, Scott is no different from many players in the American justice system, who often make reference to the myth of Prometheus.

In Energy Ass'n of New York State v. Public Service Com'n of State of N.Y., 653 N.Y.S.2d 502 (N.Y.Sup. 1996), the Supreme Court of New York, Albany County, described the issue before it as follows:

In mythological times fire was the exclusive property of the gods. When Prometheus, a Titan, broke the monopoly of the gods and brought the gift of fire to mankind, so incensed were the gods that they causedPrometheus to be chained to a great rock where during the day an eagle devoured his liver. During the night his liver regenerated and the process continued until Prometheus was freed by Hercules.

We turn now to the real world. Fire no longer belongs to the gods, but to the People. The overriding issue of this case is the mode to be followed by the People for generation, transmission and distribution of fire, transmogrified in the context of this case into electric energy—monopolistic or competitive, or some gradation in between.

In Board of County Com'rs for Prince George's County v. Brown, 253 A.2d 883 (Md. 1969), the Court of Appeals of Maryland alluded to "Prometheus Bound" by noting that "[t]he members of Bowie Volunteer Fire Department and Rescue Squad, Inc....determined that Prometheus should not be wholly unbound in their community [and] decided to build a new firehouse." In a dissenting opinion that also referenced "Prometheus Bound," Judge Tamm in Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238 (D.C. Cir. 1989), made a pretty good argument/origin story for what would become the Federal Rules of Evidence by asserting that

The evil in the system is, of course, that as heresies have a habit of turning into newly minted dogma, the individual subjective ruling becomes ‘case law’ and is the spring-board from which the next ad hoc ruling springs, like Prometheus unbound, into what we, most inaccurately, define as the law of evidence.

In Antoci v. Antoci, 2002 WL 31266121 (Cal.App. 2 Dist. 2002), the Court of Appeal, Second District, Division 7, found that 

Having been given little assistance by counsel in this case as to authorities on point (perhaps with the reason that there are none) we are chained to a bare rock like Prometheus and forced to grope for a solution.

In Gunderson v. ADM Investor Services, Inc., 43 F.Supp.2d 1058 (N.D.Iowa 1999), the Northern District of Iowa declared that  

the pleadings in this longstanding case have become reminiscent ofPrometheus' liver.

And, in what I would guess to be the quote most applicable to Ridley Scott's new film, the Sixth Circuit in United States v. Laton, 352 F.3d 286 (6th Cir. 2003), cautioned that

Prometheus may have thought twice before handing down the gift of fire to humans had he imagined that those whom the mere mortals chose to steward the precious flame would use it to decimate the very mechanisms employed to control its power.

In this post, though, I want to address Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391 (Mich. 2004), which involved (at least at the time) "the largest recorded compensatory award for a single-plaintiff sexual harassment suit in the history of the United States." That award was $21 million, given as a result of the plaintiff claiming, inter alia, "that [Chrysler]'s failure to deal adequately with sexual harassment in her plant led to a permanent change in her "brain chemistry" and a relapse into substance abuse and depression" that would "soon lead to her untimely and excruciating death." 

At trial,

Plaintiff's counsel referenced the strength of those who were affected by the Holocaust. He also referenced Prometheus and Zeus, and stated that the myth of the eagle pecking at Prometheus's liver for all eternity reminded him of plaintiff's ordeal. He compared plaintiff to Rosa Parks and Arthur Ashe, as well as a dog that was kicked and abused every day. He even referred to plaintiff as a pioneer.

Specifically,

One of counsel's tactics...was his repeated attempts to equate plaintiff with the victims of the Holocaust. This association began during the testimony of plaintiff's expert, Steven Hnat, when Mr. Hnat testified that plaintiff's psychological state was akin to that of concentration camp survivors. Plaintiff's counsel further developed this theme during his closing argument:

Never again. Never again. That is a line now used by the sabreurs [sic; sabras] in Israel, the land of Israel, to mean that the unspeakable horrors that were perpetrated on the people of Israel, on the Jews, must never be forgotten and must never happen again. Never again. Never again.

On the Chrysler's appeal, the Supreme Court of Michigan found that

This recurring rhetorical theme was especially virulent given the context of plaintiff's trial. In 1998, Chrysler had merged with Daimler Benz AG, a German automobile manufacturer. The merger was highly publicized-particularly in metropolitan Detroit, where plaintiff's trial was held. And if any of the jurors had failed to hear about the merger through media outlets, they were privy to the news once plaintiff's counsel pointed out during  his closing argument that Chrysler was under German ownership:

Daimler-Chrysler may be powerful, but, my God, they are going to have to recognize, hopefully today by your verdict, that not only must they face justice in this case, they must obey the law.

We are a nation of laws, not powerful individuals. We are a nation of laws...

And, I can assure that verdict will be heard from the floor of that plant on Jefferson to the board room in Auburn Hills or Stuttgart....

Once they hear in Auburn Hills and in Germany about Linda...it will stop.

This was all too much for the Supreme Court of Michigan, which reversed, finding that 

counsel's closing argument had a clear rhetorical aim of making defendant's German ownership a critical issue in the minds of the jurors. By associating plaintiff with those who had endured inhuman treatment in concentration camps, counsel likened defendant DaimlerChrysler-which, as the jury was informed, was partially under German ownership-with the Nazis. This argument was an attempt to incite the jury to heap upon the defendant the moral outrage that is now reserved for the Nazis and those who assisted them in carrying out the Holocaust. It was, in other words, a naked appeal to passion and prejudice and an attempt to divert the jury from the facts and the law relevant to this case.

Meanwhile, Justice Cavanagh dissented from the reversal, finding that

When reviewing the closing argument in context, it is obvious that plaintiff's counsel was arguing that plaintiff was courageous and determined. Contrary to the majority's assertion, plaintiff's counsel was no more likening plaintiff to the Holocaust victims than he was likening her to a figure in Greek mythology being pecked by a bird.

-CM

Ray Bradbury, Something Wicked This Way Comes, Carnival Of Souls, NBC's Heroes, Evel Knievel & Judicial Notice

Ray Bradbury, who passed away yesterday, was certainly a formative influence on my childhood. As I'm sure was the case for many children of the 1980s, my first exposure to the sci fi author was Spaceship Earth at Epcot. Bradbury helped design the gigantic golf ball and also helped write the storyline for the attraction. After that, my brother and I were constantly checking out his short story collections from the library. One of my favorite short stories of his, "Marionettes, Inc.," would become my prose piece of choice for junior high forensics before I became an extemporaneous speaker. Around the same time, we were assigned "Fahrenheit 451" and "A Sound of Thunder" in English class, both of which scarcely seemed like homework at all. "The Ray Bradbury Theater," which ran from 1985-1992, was also a staple of my childhood. The episode that most gave me the willies was the one that gave me the Willie....Shatner that is. In 1985's "The Playground," Shatner played Charles Underhill, with IMDB describing the episode as follows:

Charles Underhill lives in the suburb with his young son Steve, but he does not allow Steve to play in the nearby playground with other children. Charles has a childhood trauma with the bully Ralph and his friends, and he frequently sees his ghost challenging him, until the day he decides to go to the playground with Steve and face the wounds of his past.

I'm sure that my experience with Bradbury was no different than the experiences of any number of children and adults over the last several decades, which is why I can safely say that he is deeply ingrained in American pop culture. And that was precisely the problem from the plaintiff, Jazan Wild, the author of the graphic novel, "Carnival of Souls," in his copyright action against NBC Universal for the fourth season of the television show "Heroes."

As noted, Wild wrote "Carnival of Souls," a series of three comic books that according to the operative complaint, tells the story of a group "of damned souls that move between this world and the next, between reality and dreams." In Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083 (C.D.Cal. 2011), Wild sued NBC Universal for copyright infringement, claiming that the carnival theme employed in season four of the NBC show Heroes copied protected elements from his graphic novel.

In response, NBC Universal filed a motion to dismiss, claiming "that there is not even the remotest similarity in expression of the ideas that underlie the two works and move to dismiss the lawsuit." The Central District of California agreed, finding that 

While it is true that Heroes added a carnival clan as an element of its fourth season, the notion of a carnival, even a bizarre or threatening carnival with a "dark leader", is too generic to warrant copyright protection. Indeed, the notion of a nightmarish carnival has been explored in depth in a number of works including Ray Bradbury's Something Wicked This Way Comes, which was first published in 1962 and has since been made into a movie. Thus, the carnival theme, and the depiction of elements that one might expect to see in a carnival—a Ferris wheel, a house of mirrors, a fortune teller, a ringmaster, and sideshow freaks—are matters so common that they lack the originality required for copyright protection....Other than the presence of generic carnival elements and standard scenes that logically flow from those elements, the two works differ radically in their plot and storylines, their characters, the dialogue, the setting and themes, and the mood. The Court therefore concludes that the copyright claim fails as a matter of law.

This to me seems like a just outcome, especially in light of the fact that it has been noted that the fourth season of "Heroes" actually alludes to Something Wicked:

Season 4 of NBC's Heroes stars Robert Knepper as "Samuel" who has a similar persona as G.M. Dark and uses Lydia (the tattooed lady) and her tattoos to gain information about others.

But the court in Wild did something odd that I want to highlight in this post. Here's footnote 1 in the court's opinion:

The Court takes judicial notice of Season 4 of Heroes and the three part books that make up Carnival of Souls. Fed.R.Evid. 201(b). See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Now, a court can certainly take judicial notice of the content of a slice of pop culture. In Sobhani v. @radical.media Inc., 257 F.Supp.2d 1234, 1235-36 n. 1 (C.D.Cal.2003), the Central District of California took judicial notice of the content of the film "Cast Away" in a lawsuit involving Jack-in-the-Box commercials parodying it. And, in Twentieth Century Fox Film Corp. v. Marvel Ents., 155 F.Supp.2d 1, 41 n. 71 (S.D.N.Y.2001), the Southern District of New York took judicial notice of the fact that "Star Wars" is an unquestionable representation of the generic storyline of a mentor-mentee relationship in science fiction.

But then there's Capcom Co., Ltd. v. MKR Group, Inc., 2008 WL 4661479 (N.D.Cal. 2008), in which MKR, which owns the copyrights and trademarks to the 1979 movie "Dawn of the Dead," brought a copyright action against Capcom for its 2006 video game "Dead Rising." Capcom asked the Central District of California to

take judicial notice of: (1) the 1979 Dawn of the Dead movie and the Dead Rising video game; (2) numerous other zombie movies and video games; and (3) certain ideas and elements common and prevalent in such movies and games.

The court, however, refused, finding that

As MKR asserts, it can hardly be said that the zombie movies and video games presented in exhibits six through forty-four are "generally known," especially in light of the fact that many of these movies were made long ago, indeed in some instances as far back as 1932. These exhibits, therefore, do not qualify for judicial notice.

So, let's see. Is Season 4 of Heroes as "generally known" as Cast Away or Star Wars? Absolutely not. Is it as "generally known" as Dawn of the Dead? I certainly hope not, but the question is arguable. Is it "generally known" enough to qualify for judicial notice? I doubt it. As for Carnival of Souls? Forget about it. I see no conceivable way that the court could have thought that the graphic novel was "generally known" enough to take judicial notice of its content, which is what the court did.

What's even more curious to me, though, was the court's citation to Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), as support for the proposition that it could take judicial notice. Knievel is actually a case that I use in Civil Procedure class to teach the Erie doctrine. Here are the basic facts:

Famed motorcycle stuntman Evel Knievel and his wife Krystal were photographed when they attended ESPN's Action Sports and Music Awards in 2001. The photograph depicted Evel, who was wearing a motorcycle jacket and rose-tinted sunglasses, with his right arm around Krystal and his left arm around another young woman. ESPN published the photograph on its "extreme sports" website with a caption that read "Evel Knievel proves that you're never too old to be a pimp." The Knievels brought suit against ESPN in state court, contending that the photograph and caption were defamatory because they accused Evel of soliciting prostitution and implied that Krystal was a prostitute.

Now, the majority opinion in Knievel did not explicitly take judicial notice of anything, but in essence it did by finding, inter alia, that

The web pages immediately preceding and following the Knievel photo use slang words such as "hardcore" and "scoping," and slang phrases such as "throwing down a pose," "put a few back," and "hottie of the year," none of which is intended to be interpreted literally, if indeed they have a literal meaning at all. We think that any reasonable viewer would have interpreted the word "pimp" in the same loose, figurative sense as well.[FN8]

[FN8] "Pimp" has traditionally meant a man in charge of prostitutes. Webster's New World Dictionary 1025 (2d ed.1986) (defining "pimp" as "a man who is an agent for a prostitute or prostitutes and lives off their earnings."). But "[t]oday it's a very ambiguous term, used as either a compliment or an insult towards a male. In its positive form, it means that the person is 'cool.' In its negative form, it insults their attitudes, clothing, or general behavior." http://www.ocf.berkeley.edu/~ wrader/slang/p.html (visited April 9, 2004); see also http://www.slangsite.com/slang/P.html (visited April 16, 2004) (noting that the term "pimp" can also be used “when complimenting a person on their mastery of the subject matter”).

In respone, Judge Bea wrote in dissent that

[FN5] There is no evidence in the record to support the district court's conclusion that the targeted audience is likely to use many of the terms in the website in everyday conversation. Nor can judicial notice be taken, had it been requested (which it was not) that youngsters call each other "pimps" in a jocular and light-hearted manner, rather than to provoke street corner fights. But even if we were to accept the stereotype of youth the Majority shares with the district court, neither consider a stereotype of other possible viewers: the more aged, the adolescents brought up in traditional or religious families, where modesty and decency are core values; the persons active in gender equity activities who greatly resent the power inequality which exists between pimps and prostitutes. One could go on. The point is the district court and the Majority have closed the door to consideration of the audience that makes up the "reasonable person" standard by which to judge the credibility of the statement, after positing a single stereotype: the "trash-talking" adolescent the alleged defamer claims to have targeted. Somewhat inconsistently, the Majority nevertheless inveighs against the anecdotal evidence offered by Knievel's attorney regarding the definition of the term "pimp." See Majority Op. at III.B.2. The function of the court at this pleading stage is not to choose between the versions to find what is credible; it is to determine whether plaintiffs' submission is conceivably credible.

Knievel is thus an odd case for a court to cite for the proposition that it could take judicial notice when (a) the majority didn't explicitly take judicial notice; and (b) the dissent had a pretty good argument that the majority could not have taken judicial notice.

-CM

Formative Assessment: Does Probation Constitute "Confinement," & How Much Balancing Is Required Under Rule 609(b)?

Federal Rule of Evidence 609(b) provides that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

So, does probation count as "confinement" for Rule 609(b) purposes? Courts are split on the issue. So, what did the Middle District of Pennsylvania find in its recent opinion in Wink v. Ott, 2012 WL 1979461 (M.D.Pa. 2012)?

In Ott, Jeffrey Wink, a trim carpenter, brought an action against his former employer, claiming that it failed to compensate him for 2,035 hours of drive time at $24.38 an hour ($49,613). Before trial, Wink brought a motion in limine seeking to preclude his employer from impeaching him through evidence of his conviction for the crime of providing false reports to law enforcement authorities on June 2, 2000. That conviction was more than 10 years old based on the date of conviction, but Wink was on probation for the crime until June 13, 2012, which would have made the conviction slightly less than 10 years old if probation constitutes "confinement" for Rule 609(b) purposes. So, does it?

Courts are split on the issue. In United State v. Gaines, 105 Fed.Appx. 682 (6^th Cir. 2004), the Sixth Circuit found that the question under Rule 609(b) is whether "less than ten years had passed since the witness was released from confinement or the period of his parole or probation had expired." Most courts, however, have found that a period of parole or probation does not constitute "confinement," including the Seventh Circuit in United States v. Rogers, 542 F.3d 197 (7^th Cir. 2008). 

In Ott, the Middle District of Pennsylvania agreed with the majority approach, finding that "[i]n calculating the ten-year period, "release from confinement" does "not include any period of probation or parole."

This meant that the conviction could only be admissible if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect..." More specifically, as noted by the Advisory Committee,

The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact.

So, what did the court do? Here's the relevant portion of the opinion:

The Court recognizes the age of Plaintiff's conviction and the fact that it occurred during Plaintiff's formative years. Nevertheless, as noted above, Plaintiff's credibility is of paramount importance to this action. Because the crime of providing false reports to law enforcement authorities bears directly on Plaintiff's credibility, the Court finds that the probative value of the conviction substantially outweighs its prejudicial effect. Further, the Court finds that Defendants provided sufficient notice of their intent to use the conviction. Therefore, the Court will deny Plaintiff's third motion in limine and permit Plaintiff's conviction to be admitted for the purpose of impeachment. See United States v. Rankin, No. 05–cr–615, 2007 WL 1181022, at *3–*4 (E.D.Pa. Apr. 18, 2007) (finding that a defendant's conviction for making false statements in an affidavit, which was more than ten years old, was admissible under Rule 609(b) because the conviction "could not be more relevant to the issue of [the defendant's] credibility").

Was this good enough? I see one brief sentence on prejudicial effect and two brief sentences on probative value, with all of the sentences being rather conclusory. And what does the court mean by saying that the conviction was during the plaintiff's formative years? Was this a juvenile adjudication, triggering the protections of Federal Rule of Evidence 609(d)? Or was it a conviction from his early 20s? I don't think that the court did enough on-the-record balancing in Ott and that the court's decision in appealable should nothing else be written on the subject.

-CM

Make A Note Of It: Court Of Appeals Of Texas Finds Prosecution's Notes Are Not Witness Statements

Texas Rule of Evidence 615(a) provides that

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

Meanwhile, Texas Rule of Evidence 615(f) indicates that 

As used in this rule, a "statement" of a witness means:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

So, let's say that the government has notes from its interview with a witness for the prosecution. Do these notes constitute a "statement" of a witness that has to disclose upon a defense motion? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Wilkerson v. State, 2012 WL 1940650 (Tex.App.-San Antonio 2012), the answer is "no."

In Wilkerson, 

Darrell Wilkerson was divorcing his wife Tara, but they continued living together. During an argument, Tara threw a phone at Darrell which hit him in the back. Darrell walked to David Herrera's home nearby, and Herrera saw Tara repeatedly strike Darrell. Officer Michelle Lewis responded to Darrell's 911 call. She interviewed Darrell and Herrera, saw a mark under Darrell's right eye and redness on his shoulder. Officer Lewis found Tara in her home, observed her condition, asked her about Darrell's allegations, and arrested her.

After Tara was convicted of misdemeanor assault, she appealed, claiming, inter alia, that the trial court erred by failing to required the prosecution to disclose its notes from interviews with Darrell in response to a motion by defense counsel. According to Tara, "the prosecutor's notes [we]re actually Darrell's witness statements under Rule 615(f)(2)."

In response, the government contended "that the prosecutor's notes were merely the State's 'summary of the complainant's expected testimony' and...d[id] not meet the definition of statements under the rule." Moreover, it claimed that its argument was bolstered by the fact that "Darrell never signed, adopted, or approved the prosecutor's notes."

The court found that "the record support[ed] the State's assertion" and thus that "the trial court did not abuse its discretion by overruling Tara's Rule 615 motion."

-CM

Q: What Does Nitroglycerin Mean? A: Not Guilty; 3rd Circuit Fails To Decide Whether Text Message Was Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

And while the Third Circuit didn't reach the issue in United States v. Blackett, 2012 WL 1925540 (3rd Cir. 2012), it seems pretty clear that a text message can easily qualify as a recorded recollection under Rule 803(5).

In Blackett, Ikim Blackett was charged with bribing a juror. Specifically,

The evidence at trial showed that on May 24, 2010, Jeanette Smith...was selected to serve as a juror in the criminal trial of Unites States v. Fagan, et. al, Case No. 2006-80, which commenced that day in the District Court of the Virgin Islands....Smith testified that after court concluded the first day, Blackett came to her home some time between the hours of 8:00 p.m. and 10:00 p.m....Smith stated that she had known Blackett for approximately six or seven years....Smith testified that following a general introduction on her front porch, Blackett engaged her in conversation and mentioned "nitroglycerin"....Smith asked Blackett what "nitroglycerin" meant and he responded "not guilty"....Blackett refused to tell her who should receive the "not guilty" vote or who sent him to make the offer....Blackett offered her $1500 vote "not guilty"....Smith told Blackett that she would think about his offer because she wanted him to leave her home....Smith went back inside her home, and a few minutes later Blackett returned....When Blackett returned, he asked Smith for her cell phone number and whether she needed more than $1500....Smith refused to give Blackett her telephone number and declined his offer for more money.

After these events, Smith returned to her bedroom and sent text messages to family members and friends. Her text message to her sister stated:

You see why I tell you I ain't want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don't know what to do, because if I tell the judge they're going to know it's me.

I know, right. Now I scared because I don't want them to do anything to me or [my daughter][. . .] * * *

At Blackett's trial for bribing a juror, Smith was allowed to read a copy of the text message to the jury after (a) she testified that she could not precisely recall the message she texted her sister; and (b) she identified and reviewed a copy of the text while on the stand and found that it accurately reflected what she texted on that night.

After Blackett was convicted, he appealed, claiming, inter alia, that the text message was improperly admitted as a recorded recollection under Rule 803(5). The Third Circuit did not resolve this issue, instead, finding that even if the text message was improperly admitted, any error was harmless.

That said, it seems pretty clear that the text message met the foundational requirements of Rule 803(5). Smith clear testified (a) that she once had knowledge of the bribe and now lacked enough knowledge to testify completely and accurately about it; (b) that she wrote the text right after the bribe while it was fresh in her memory; and (c) that the text accurately reflected her knowledge.

-CM

Out Of Time: Court Of Appeals Of Indiana Finds Rule 412(b)(1) Fatal To Ineffective Assistance Claim

Indiana Rule of Evidence 412(a)(1) contains an exception to Indiana's rape shield rule for "evidence of the victim’s or of a witness’s past sexual conduct with the defendant...." That said, pursuant to Indiana Rule of Evidence 412(b)(1), If a party proposes to offer evidence under this rule, "A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial." It was this latter provision that was fatal to part of the defendant's appeal in Rogers v. State, 2012 WL 1944826 (Ind.App. 2012).

In Rogers, Mitchell Lee Rogers appealed from the denial of his petition for post-conviction relief following his conviction for sexual battery as a class D felony, and criminal deviate conduct and battery, both as class B felonies. One of the grounds for his appeal was that appellate counsel rendered ineffective assistance in failing to challenge the trial court's exclusion of evidence of Rogers' prior sexual relationship with his victim.

This evidence would have revealed that Rogers had "a consensual one-night stand" with the alleged victim ten years before the alleged crime charged. Specifically,

The day before trial was to commence, Rogers submitted a motion to present evidence of what Rogers refers to on post-conviction relief as "a consensual one-night stand" that occurred ten years before these events transpired....The trial court denied that motion on grounds that the event was too remote in time to be admissible. Defense counsel did not seek to present the evidence at trial. Appellate counsel did not challenge the exclusion of this evidence on direct appeal. Appellate counsel testified that he did not challenge the preliminary ruling because he, too, believed the evidence was too remote to be admissible and therefore that the trial court's ruling was correct.

In rejcting this portion of Rogers' appeal, the Court of Appeals of Indiana noted that pursuant to Indiana Rule of Evidence 412(b)(1),

a party must give written notice ten days before trial of his or her intention to present evidence governed by this rule. Moreover, we have determined that this ten-day notice requirement applies "to both the general rule prohibiting the admission of past sexual conduct and the exceptions listed thereafter."... The evidence Rogers sought to present fits within the exception set out in subsection (a)(1). Thus, even had appellate counsel appealed this ruling on direct appeal, he would not have prevailed. As a result, Rogers cannot demonstrate the requisite prejudice.

Of course, what this really means is that Rogers should have claimed that his trial counsel rendered ineffective assistance for failing to timely move for the admission of the subject evidence. But I doubt that such an argument would have been successful because a single one night stand ten years in the past has very little probative value on the issue of whether the alleged victim consented to sexual acts with the defendant a decade later. Thus, the trial court likely would have excluded the subject evidence even if the issue were timely raised.

-CM