EvidenceProf Blog

On the Move/Blogging Hiatus

Today will be my last day of blogging for a few weeks as I will be busy with a move to Columbia, South Carolina to start teaching at the University of South Carolina School of Law.

-CM

Adam Sandler, That's My Boy, You Don't Mess With The Zohan, Little Nicky, Prior Consistent Statements & The Rule Of Completeness

My friend went to NYU in the 1980s and remembers Adam Sandler, a fellow NYU student, coming into her dorm and doing his comedy bits. From there, Sandler graduated to doing his bits on "The Cosby Show" and the MTV game show "Remote Control" (I had the "Remote Control" video game for my "Commodore 64"). And, from there, it was "Saturday Night Live" and two decades of box office success running the gamut from "Airheads" to "Zohan."

Along with success has come litigation. Robert Cabell sued the Sandman and company, claiming that "You Don't Mess With The Zohan" was copyright infringement because of the similarity between the Zohan character and his Jayms Blonde. The Southern District of New York, however, granted the defendants' motion for summary judgment, and the Second Circuit affirmed in Cabell v. Sony Pictures Entertainment, Inc., 425 Fed.Appx. 42 (2nd Cir. 2011), finding that

Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters' fighting poses, there is no plausible basis for a reasonable jury to find that the parties' respective expressions of the concept of a crime-fighting hairdresser are substantially similar.

Also, Douglas Stromback brought an action against Sandler and others, alleging that "Little Nicky" was copyright infringement because of its similarity to his poem entitled "The Keeper" as well as his original treatment and outline of a screenplay based upon that poem. The Eastern District of Michigan granted the defendants' motion for summary judgment, and the Sixth Circuit affirmed in Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004), finding that

"The Keeper" poem and screenplay and "Little Nicky" are not at all similar. The only similarities arise from common and well-known themes, plots, and character traits that "are readily ascertainable by other means...."

Other times, courts cite dialogue from Sandler's movies. In Krumnow v. Krumnow, 174 S.W.3d 820 (Tex.App.-Waco 2005), Chief Justice Gray wrote a special note, which, inter alia, objected to the majority's late insertion of footnote 4 as follows:

So my response to footnote 4 is, quoting Adam Sandler in The Wedding Singer, "Once again, things that could have been brought to my attention YESTERDAY!" The Wedding Singer (New Line Cinema 1998) (motion picture).

Additionally, I count at least 3 opinions that reference this classic scene from "Billy Madison." For instance, in In re King, 2006 WL 581256 (Bkrtcy.W.D.Tex.,2006), the court denied the defendant's motion as incomprehensible, with the following footnote:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison." after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Today sees the release of "That's My Boy," the first R-rated release under the Sandler brand. The film's title was also a key statement in the recent case, State v. Williams, 2012 WL 892915 (Ohio App. 8 Dist. 2012).

 

In Williams, James L. Williams was convicted of aggravated burglary, aggravated robbery, and kidnapping, all with firearm specifications, notices of prior conviction, and repeat violent offender specifications, and for having a weapon while under disability. According to the facts adduced at trial,

Fifteen-year-old Clarence Wilson invited a friend, Desmond Franklin, to his house that afternoon to play video games. The two boys played for a time, then Clarence's mother left the house to do laundry. While his mother was away, Clarence received a telephone call from a neighbor, Shawn Crenshaw. Crenshaw wanted to come over and Clarence agreed.

Crenshaw joined the others in playing video games for a time before he volunteered to go to the store to obtain a cigar and snacks. Standing at the doorway, Desmond watched Crenshaw leave; he saw Crenshaw meet with two other young men outside and begin walking with them toward the store.

Desmond recognized one of the other young men as Brazie Norman, whom his friend introduced to him the day before. He also recognized the other young man as Williams because his friend "recently had pointed him out, called Williams “Cool James,” and told Desmond, "That's my boy." 

Later, Crenshaw, Norman, and Williams returned and stole a flat screen TV, a Droid phone, and an Xbox 360 at gunpoint. Desmond thereafter gave a written statement to police in which he stated that he could identify Williams from the "That's my boy statement" and that Norman was like a brother to him. Desmond, however, failed to pick Norman's photo from a photo array that police officers showed to him.

At trial, after Desmon testified and defense counsel cross-examined him, the trial court allowed the prosecution to introduce his written statement to police. After he was convicted, Williams appealed, claiming, inter alia, that the written statement should have been deemed inadmissible. In rejecting that appeal, the court found that the statement was possibly admissible under two rules of evidence: 

(1) Ohio Rule of Evidence 801(D)(1)(b), which provides that a statement is not hearsay if

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive; and

(2) Ohio Rule of Evidence 106, the rule of completeness, which provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.

And, while the court didn't explicitly state which of these two rules applied, it gave the following reasoning:

In this case, Williams's defense attorney referred to Desmond's written statement during cross-examination. Counsel's questions were designed to imply that Desmond was not being truthful during his direct examination when he stated he never met Williams, because when the police interviewed him soon after the incident, he indicated he had. Desmond also testified Norman was like a brother to him, but failed to choose Norman's photo from the original array the detective showed him. On redirect examination, the trial court permitted Desmond, in fairness, to read his written statement in order to explain and to place in context the portions on which defense counsel had focused....

Here, Desmond read his own statement after Williams had used portions of it on cross-examination to challenge Desmond's credibility with respect to both his acquaintance with Williams and his observations at the time of the incident....No abuse of discretion occurred under these circumstances.

-CM

Be Aggressive, Take 2: Commonwealth v. Bedford, America's Most Wanted & Why Rule 404(a)(2)(C) Makes No Sense

Federal Rule of Evidence 404(a)(2)(C) provides that

in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Similarly, Pennsylvania Rule of Evidence 404(a)(2)(ii) provides that

In a homicide case, where the accused has offered evidence that the deceased was the first aggressor, evidence of a character trait of the deceased for peacefulness is admissible when offered by the prosecution to rebut the same.

Recently, the Superior Court of Pennsylvania had occasion to apply Rule 404(a)(2)(ii) in its recent opinion in Commonwealth v. Bedford, 2012 WL 1950152 (Pa.Super. 2012). I think that Federal Rule of Evidence 404(a)(2)(C) and state counterparts make no sense and, as I noted in a prior post, I will argue as much in a work in progress. So, what's the general basis for objection?

In Bedford, Duane Bedford performed some construction work for his neighbor, Sam Brown, until a dispute arose between the two men before the job was completed. That dispute escalated when Brown suspected that Bedford smashed his car windows. Brown went to confront Bedford, with that confrontation ending with Bedford shooting Brown three times, causing his death. Bedford subsequently went incognito, leading to a year-long search for him, an appearance on America’s Most Wanted, and, ultimately, his apprehension.

Charged with first-degree murder, Bedford claimed self-defense and specifically that Brown was the first aggressor who came looking for him "with hardness of heart." Notably, Bedford did not present any propensity character evidence tending to show that he was generally a peaceful person or that Brown had generally been a violent person. He simply claimed that Brown attacked him first in the encounter that ended with his death.

In response to this defense, the Commonwealth called Sergeant Sean Butts as a character witness, leading to, inter alia, the following exchange:

[THE COMMONWEALTH]: Do you know [Victim] to be a violent individual?

[SGT. BUTTS]: No.

[THE COMMONWEALTH]: [Why] do you say “no”?

[SGT. BUTTS]: [Victim] was a very soft-spoken, meek person, very subdued. Never really raised his voice around me or in public. There have been some instances at his employment where he could have gotten upset or violent, but he didn't.

After he was convicted, Bedford unsuccessfully appealed, with the Superior Court of Pennsylvania deeming Sergeant Butts' testimony admissible under Pennsylvania Rule of Evidence 404(a)(2)(ii).

So why do I think that this rule and its federal counterpart make no sense? Propensity character evidence is generally inadmissible. The "mercy rule" contained in Federal Rules of Evidence 404(a)(2)(A)&(B), however, gives criminal defendants a Pandora's Box of sorts. If an accused wants to prevent propensity character evidence from infecting his trial, he merely needs to refrain from introducing any propensity character evidence. If, however, the defendant wants to present evidence of his good character for a pertinent trait, the prosecution can respond with evidence of his bad character for the same trait. And, if the defendant wants to present evidence of the alleged victim's bad character for a pertinent trait, the prosecution can respond by presenting evidence of (a) the alleged victim's good character for the same trait; and (b) the defendant's bad character for the same trait.

Until 2006, some courts found that this "mercy rule" applied in both criminal and quasi-criminal cases, i.e., civil proceedings where a judgment rendered against the party seeking to introduce character evidence necessitates a finding that the party committed a particular act that was also punishable under criminal law. In 2006, however, Rule 404 was amended to make clear that it applies only in criminal cases, with the Advisory Committee noting that

The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay....In criminal cases, the so-called "mercy rule" permits a criminal defendant to introduce evidence of pertinent character traits of the defendant and the victim. But that is because the accused, whose liberty is at stake, may need "a counterweight against the strong investigative and prosecutorial resources of the government." C. Mueller & L. Kirkpatrick, Evidence: Practice Under the Rules, pp. 264–5 (2d ed. 1999). See also Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 855 (1982) (the rule prohibiting circumstantial use of character evidence "was relaxed to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the factfinder just what sort of person he really is"). Those concerns do not apply to parties in civil cases. 

This amendment thus provides a defense for Federal Rules of Evidence 404(a)(2)(A)&(B) in that it allows a criminal defendant with so much at stake and so little in the way of conventional proof to level the playing field a bit against the government and its strong investigative resources.

So, in what type of case are those resources levied the most against a criminal defendant? And, in what type of case does a criminal defendant have the most at stake? The clear answer to both questions is a homicide defendant. It is well recognized that prosecutors/police devote more resources to murder cases (and especially capital cases) that any other case, and federal homicide defendants (and many state homicide defendants) face the very real specter of death at the end of their trials. And yet, a homicide case is the one type of case in which the prosecution holds the cards and can decide whether to inject propensity character evidence into a defendant's trial pursuant to Federal Rule of Evidence 404(a)(2)(C). How does this make any sense given the state rationales for the mercy rule? The clear answer is that it does not.

Of course, the argument could be made that the decision is still in the defendant's court because he can choose whether or not to claim self-defense and that the alleged victim was the first aggressor. But, assuming that the defendant has a colorable claim that the victim was the first aggressor, of course he is going to raise it at trial. And the consequence is that the prosecution can then present evidence that the victim was a peaceful person. And then, if the defendant wants to contradict the saintly image of the victim by presenting evidence of his violent character, this then opens the door for the prosecution to attack the defendant's character for violence pursuant to Federal Rules of Evidence 404(a)(2)(B). Simply put, the stated rationale for the "mercy rule" compels the conclusion that Rule 404(a)(2)(C) be abolished.

-CM

Did You Notice That?: District Of Delaware Finds Written Notice Not Required Under Rule 609(b) If Opponent Had Actual Notice

Federal Rule of Evidence 609(b) states 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, what happens if there is no indication from the record that the prosecution gave written notice to the defense of its intent to use remote convictions, but there is an indication that defense counsel had knowledge of that intention? This was the issue addressed by the recent opinion of the United States District Court for the District of Delaware in Flood v. United States, 2012 WL 2114866 (D.Del. 2012).

In Flood, Teresa Flood was convicted of one count of bank fraud, two counts of aggravated identity theft, and two counts of wire fraud. Flood thereafter filed a document titled "complaint for declaratory judgment and injunctive relief," which the court construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

One of the grounds for Flood's motion was that her attorney was ineffective because she failed to prevent the government from impeaching Glenny Coleman, an alleged co-conspirator, with evidence of his prior convictions older than ten years. According to Flood these convictions should have been deemed inadmissible to impeach Coleman because they were more than ten years old and the prosecution failed to given written notice of its intent to use them to impeach. In responding to this argument, the District of Delaware found that

Admittedly, the record does not explicitly show, and the government does not indicate, if defense counsel was given "advance written notice" of the government's intent to impeach Coleman with his prior convictions....Nevertheless, the record implicitly demonstrates defense counsel's prior knowledge of Coleman's older convictions, as well as the government's intent to use those convictions to impeach him. First, the parties filed a joint set of proposed jury instructions which contained an instruction regarding the "impeachment of witness—prior conviction (F.R.E. 609)."...This instruction stated, "You heard evidence that Glenny Coleman, a witness for the defendant, was previously convicted of several crimes involving dishonesty and false statements. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe Glenny Coleman and how much weight to give to Glenny Coleman's testimony."...Second, defense counsel actually referred to several of Coleman's prior convictions when setting forth the defense theory that Coleman was a perpetual conman, schemer, and convict who duped movant into unknowingly participating in the underlying crimes he committed. For instance, during her opening statement, defense counsel mentioned Coleman's 2007 conviction, as well the fact that he had additional "prior convictions for crimes of falsification and fraud."...During direct examination, counsel questioned Coleman about two of his older convictions: one for credit card fraud in 1991, and the other for wire fraud, bank fraud, and credit card fraud in 1995....Defense counsel's questioning elicited Coleman's consistent responses that he was a major conman who had duped movant.

Given this record, the court cannot conclude that defense counsel's failure to object to the government's impeachment of Coleman with his prior convictions, or her failure to file a motion in limine to exclude such evidence, was due to inattention or lack of notice. Rather, defense counsel strategically used Coleman's criminal history to illustrate his long career as a conman in order to support the defense theory that movant was yet another person duped by him.

So, the bottom line is that the District of Delaware held that written notice is not required under Federal Rule of Evidence 609(b) as long as the other party has actual notice of the subject conviction(s). I can't say at this point whether I agree or disagree with the court's conclusion, but I can say that this conclusion is different from the conclusion of at least one other court regarding notice under the Rape Shield Rule. Here is one of the hypotheticals from my Rape Shield Rule Chapter for the ELangdell Project:

Hypothetical 10: Jonathan Pablo is charged with rape.  At trial, he seeks to present evidence (1) that the alleged victim was seen undressed with two other men on the night of the rape; and (2) that the alleged victim made sexual advances towards Pablo’s co-defendant on the night of the alleged rape. Pablo acknowledges that this argument is covered by Rule 412 but believes that it qualifies for admission under Rule 412(b)(1)(C). Pablo did not file a written motion under Rule 412(c)(1)(A).  Pablo, however, claims that the government relieved him of his obligation to comply with Rule 412(c) by providing its own written notice to the court a month before indicating that Pablo might introduce some evidence that would fall within Rule 412’s scope.  Is he correct? See United States v. Pablo, 625 F.3d 1285 (10th Cir. 2010).

The answer, according to the Tenth Circuit, was that it was irrelevant that the government had actual notice of the subject evidence because Pablo did not comply with Federal Rule of Evidence 412(c)(1)(A), which requires a party seeking to admit evidence under an exception to the Rape Shield Rule to "file a motion that specifically describes the evidence and states the purpose for which it is to be offered...."

-CM

Old Time Hockey: Los Angeles Kings Stanley Cup Win Brings To Mind Kings Case w/Evidence Code Section 500 Issue

Congratulations to the Los Angeles Kings on winnng their first Stanley Cup with a 6-1 victory over the New Jersey Devils. One of the most enjoyable NHL games that I ever experienced was at the STAPLES Center, when my wife, a friend, and I took advantage of an all-you-can eat promotion that allowed us to watch the Kings play with an endless supply of nachos, popcorn, cotton candy, and soda. Last night, though, wasn't the first time that the Kings made history. Instead, the team previously made its mark in the opinion of the Court of Appeal, Second District, Division 1, California, in Nemarnik v. Los Angeles Kings Hockey Club, L.P., 127 Cal.Rptr.2d 10 (Cal.App. 2 Dist. 2000), a case that highlights California Evidence Code Section 500.

In Nemarnik, Holly Ann Nemarnik was injured when, during pre-game warm ups at a Los Angeles Kings ice hockey game, a puck flew off the ice and struck her in the mouth. Specifically,

During the pre-game warm ups, several pucks were in play on the ice. Plaintiff had a fourth-row, season ticket seat but could not see the ice because "there were more people congregating around her area than she had ever seen before. No ushers asked the crowd to go to their proper seats as required." Plaintiff "tried folding up her seat and sitting on the edge to obtain a clear view, but still could not see over the crowd the venue had allowed to form around and in front of her. [Plaintiff] was perplexed and distracted by the fact that she had never seen such a crowd form around her at any previous hockey game she had attended. She was unsure what to do about the situation. Ultimately, a puck did fly off the ice. [Plaintiff] was unable to see the puck come off the ice, heading directly toward her; she was unable to take evasive action. The hockey puck struck [plaintiff] in the mouth and face, causing severe injuries." 

Nemarnik thereafter sued the Kings, the National Hockey League, and the owners and operators of the ice hockey venue, claiming that the

defendants were negligent in failing to prevent the spectators from milling around the ice during pre-game warm ups: "The suit was based on the fact that defendants, by allowing a crowd to form and to remain in an area where they were not supposed to be congregating, increased the normal risk inherent in attending a hockey game; i.e., while a puck leaving the ice might be a normal risk of attending a game, that risk was significantly increased by allowing the spectators' views to be blocked so that they could not see the puck coming, and take evasive action."

The trial, court, however, granted the defendants' motion for nonsuit at the beginning of trial, concluding, as a matter of law, that the defendants were immune from liability under the primary assumption of risk defense. Nemarnik subsequently appealed, claiming that her

main contention of active negligence here was that defendants did not perform adequate crowd control; however she was in no way contending that crowd control was the only measure of protection required. Because primary assumption of risk is an affirmative defense, in order to be entitled to judgment, defendants had the burden to establish all elements of the defense. Plaintiff did not have a burden to negate the affirmative defense in the stipulated opening statement; nor to raise any other acts of negligence in order to defeat the nonsuit. (Evid. Code § 500.) It appears from the language of their brief that respondents are asking this Court to refrain from finding any duty beyond crowd control. To the extent this Court finds that a duty is owed to hockey patrons, that duty would and should include, among other things, adequate barriers; proper stadium design, etc. The cases on point clearly establish that there is a legal duty to protect closer-sitting fans like Nemarnik herein from flying objects. (See, Shurman v. Fresno Ice Rink, Inc. (1949) 91 Cal.App.2d 469, 476-477 [hockey arena has duty to protect spectators sitting in the front row; Knight v. Jewett, supra, 3 Cal.4th 296, 317 [baseball stadium has duty of ordinary care to protect fans from flying objects close to home plate, where fans are more likely to be hit (quoting, with approval, Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733, 736.]) Nemarnik thus contends that, should this Court reverse the nonsuit, she should, particularly given the recent fan death, be given the opportunity to present evidence at a new trial that the plexiglass barriers were also inadequate, as well as other factual bases of negligence.

Nemarnik was thus relying on California Evidence Code Section 500, which states that

Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

But despite Nemarnik's arguments, the appellate court was still able to affirm the trial court's ruling, finding that

if we were to impose a duty upon defendants to eliminate all risk of injury from flying pucks, we would force defendants to do either of two things: provide a floor to ceiling protective screen around the rink, thereby reducing the quality of everyone's view; or increase the price of tickets to cover the increased liability costs....[W]e find neither alternative to be acceptable.

Since Nemarnik was handed down, it has been cited by numerous courts, inside and outside of California, most frequently for the proposition that defendants "do not have a duty to protect Appellant, a spectator, from inherent risks of the game of hockey." Hurst v. East Coast Hockey League, Inc., 637 S.E.2d 560, 563 (S.C. 2006).

-CM

Be Aggressive: Why Does Rule 404(a)(2)(C) Only Apply In First Aggressor Cases & Not Other Self-Defense Cases?

I'm currently working on an article on Federal Rule of Evidence 404(a)(2)(C), which states that, despite the general ban on the admission of propensity character evidence, 

In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Now, whenever I have taught Rule 404(a)(2)(C), I have always said that it is triggered by a homicide defendant claiming self-defense. The actual language of the Rule, however, clearly requires a homicide defendant to claim that the victim was the first aggressor for the prosecution to be able to admit evidence of the alleged victim's trait of peacefulness. This point is driven home by the opinion of the Court of Criminal Appeals of Tennessee in State v. Copenny, 888 S.W.2d 450 (Tenn.Cr.App. 1993). But does this point make sense?

In Copenny, Amos Copenny shot and killed the victim, Bobby Wilson. At trial, Copenny claimed self-defense. Unfortunately, the opinion in Copenny doesn't give us too much in the way of specifics, but it does tell us that, at trial,

Aliscia Patillo stated that she and appellant were at Larry's Lounge about four weeks before the shooting when the victim came in and told appellant, "You and your bitch can go down." The victim then left and appellant followed him out the door. Ms. Patillo watched appellant walk towards his car and saw the victim run past him with a gun. Two other men surrounded the appellant with guns. Appellant tried to get into his car, but the victim began to fight with him. One of the other men hit appellant in the head with the butt of a pistol, and the gun discharged.

Moreover, the opinion makes clear that Copenny wanted to present evidence that Wilson was the first aggressor in the altercation that led to his death:

The appellant asserts that the court erred in prohibiting evidence showing that the victim was under the influence of cocaine at the time of the shooting. He contends this evidence is relevant in proving that the victim was the first aggressor in the fight because cocaine may cause a person to act violently. Appellant, however, presents no evidence that the victim had taken cocaine.

The trial court, however, precluded Copenny from presenting this evidence. Presumably, then, Copenny presented evidence such as Patillo's testimony to indicate that he reasonably feared Wilson and evidence that Wilson was acting aggressively in the altercation that led to his death but did not present evidence that Wilson was the first aggressor. And what this meant was that the trial court erred in allowing the prosecution to admit evidence of WIlsion's character for peacefulness:

Appellant's counsel alluded to the victim's being the first aggressor in his opening statement; however, he proffered no evidence of this before the state introduced testimony that the victim had never carried a gun until fired upon. As such, this evidence was improper and irrelevant under Rule 404(a)(2) at this point in the trial.

This opinion is consistent with other opinions on the issue, such as the opinion of the Court of Appeals of Ohio, Seventh District, in State v. Austin, 686 N.E.2d 324 (Ohio App. 7 Dist. 1996), which held that

When an accused injects the issue of the victim's character into the case, either by offering character evidence in accordance with Evid.R. 405 or by coupling self-defense with evidence of first aggression by the victim in a homicide case, the accused does not by virtue of these elections open the issue of the accused's own character (emphasis added).

The main question that I address in my article is: What rationale can support the existence of Rule 404(a)(2)(C)? As I will note in the article and in future posts, I have many issues with the Rule as a whole. Its narrow focus on homicide cases in which the defendant claims that the victim was the first aggressor, though, is particularly perplexing. Why did it matter in Copenny that Copenny apparently claimed that Wilson acted aggressively but was not the first aggressor?

Or, let's say that Copenny were the first aggressor and then communicated his withdrawal and attempted to withdraw but Wilson kept coming at him, leading Copenny to shoot and kill him? Copenny could claim self-defense but would not open the door to character evidence because he would not be claiming that Wilson were the first aggressor. Or let's say that Copenny pushed Wilson and then Wilson escalated the situation by attempting to use lethal force against Copenny, leading Copenny to shoot and kill him. Again, Copenny could claim self-defense but would not open the door to character evidence because he would not be claiming that Wilson were the first aggressor.

So, what rationale explains the application of Rule 404(a)(2)(C) in a first aggressor case and the non-application of the Rule in these other self-defense cases? I think the only possible rationale (and I don't even really think that it is a rationale) for the Rule is the exceptional need for the evidence in homicide cases. The analogue here is the dying declaration exception to the rule against hearsay, which the Advisory Committee justifies in part because of "the exceptional need for the evidence in homicide cases...."

But if evidentiary need is the justification for Rule 404(a)(2)(C), why wouldn't it apply in all homicide cases (as well as in civil cases, like the dying declarations exception)? I suppose the argument would be that a defendant claiming that the victim was the first aggressor sort of (but not really) attacks the character of the victim for violence, which justifies the prosecution presenting evidence of the victim's peacefulness? But doesn't the defendant in a withdrawal or escalation case do the same? In other words, isn't the defendant in a withdrawal case kind of claiming that a normal person would have stopped attacking him after he withdrew but that the victim didn't because he was violent? And, isn't the defendant in an escalation case claiming that the normal response to a shove is a shove and that the victim's attempt to use lethal force was because he was violent.

Of course, all of this is ridiculous because the defendant in any of these cases is merely claiming that the victim was overly violent/aggressive in the altercation leading to his death and not that he was generally violent, which is why Rule 404(a)(2)(C) makes little sense. But doesn't the rule make a little more sense in a case like Copenny.

Think about it. What's the classic case in which a defendant is claiming self-defense but is not claiming that the victim was the first aggressor? That case probably looks a lot like Copenny, with the defendant claiming that even though the victim wasn't the first aggressor in the altercation leading to his death, the defendant reasonably feared the victim because of prior acts of violence committed by the victim against the defendant. This still isn't propensity character evidence, but it looks a lot more like an attack on the character of the victim for violence. And yet, in such a case, Rule 404(a)(2)(C) doesn't apply.

In conclusion, for the above reasons and many more that I will explain later, I think that  Rule 404(a)(2)(C) should be abolished. But, if it is not, what possible justification can there be for limiting its application to "first aggressor" homicide cases but not other homicide cases in which the defendant claims self-defense?

-CM

Rafael Nadal, Roger Federer, The Battle Of The Surfaces & Federal Rule Of Evidence 408

With Rafael Nadal about to take to the terra batu to face Novak Djokovic for a record seventh French Open title, I can't help but think to a time when Rafa was considered JUST a great clay court player. That time was May 2, 2007, when Nadal played an exhibition called the Battle of the Surfaces against his rival Roger Federer on Nadal's home island of Mallorca. The conceit of the exhibition was that half of the court was clay (Nadal's preferred surface) and half of the court was grass (Federer's surface of choice). Here's a link to one of the many Youtube clips of the event. As with most Federer-Nadal matches, the exhibition ended with a Nadal victory, 7-5, 4-6, 7-6 (12-10). It also ended with a lawsuit, a lawsuit that was quickly dismissed in large part due to Federal Rule of Evidence 408.

In Marcinkowska v. IMG Worldwide, Inc., 342 Fed.Appx. 632 (Fed. Cir. 2009), on May 1, 2007, one day before the staging of the battle of the surfaces, Renata Marcinkowska,

a resident and citizen of South Carolina and a former professional tennis player, commenced an action against S&S, an advertising agency based in Argentina, and IMG, a sports marketing and management company incorporated in Ohio. Ms. Marcinkowska alleged that IMG and S&S infringed her '669 patent. Her patent claimed different tennis court surfaces on each side of the net....Ms. Marcinkowska also alleged claims under the Lanham Act and unfair trade practices and civil conspiracy under South Carolina law.

Thereafter,

On February 25, 2008, S&S filed a Rule 12(b)(2) motion to dismiss the Amended Complaint for lack of personal jurisdiction. IMG simultaneously moved under Rule 12(b)(6) to dismiss the Amended Complaint for failure to state a claim for which relief can be granted. On December 29, 2008, the district court granted both motions, entered a final judgment, and dismissed the Amended Complaint with prejudice.

In response, Marcinkowska filed a letter motion to reopen the case, which the district court treated as a Rule 60(b) motion for relief from final judgment and denied. Marcinkowska then appealed the district court's final judgment and denial of her motion for relief from final judgment.

In her appellate brief, in an attempt to establish personal jurisdiction and that she had a potentially viable claim, Marcinkowska included many factual allegations relating to discussions that she had with S&S and IMG during settlement negotiations. In their brief, the defendants contended that

The allegations, conclusions, pleas and recitation of facts which are set forth in Marcinkowska''s informal brief go well beyond what is alleged in the Amended Complaint. Indeed, many of Marcinkowska's allegations in her informal brief are improper because they are not part of the Record and also because they refer to and disclose, albeit inaccurately, confidential settlement discussions subject to Fed. R. Evid. 408 between attorneys for the parties.

The Federal Circuit agreed with the defendants, assessed only the allegations in the Amended Complaint, and found that the district court acted properly in dismissing the complaint based upon those allegations.

-CM