EvidenceProf Blog

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

Saturday, June 9, 2012

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?

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June 9, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, June 8, 2012

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 SturgesTim BurtonSpike JonzeSpike 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.

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June 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 7, 2012

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 EpcotBradbury 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."

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June 7, 2012 | Permalink | Comments (4) | TrackBack (0)

Wednesday, June 6, 2012

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)?

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June 6, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 5, 2012

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."

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June 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, June 4, 2012

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).

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June 4, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 3, 2012

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).

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June 3, 2012 | Permalink | Comments (0) | TrackBack (0)