EvidenceProf Blog

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

Friday, June 15, 2012

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.


June 15, 2012 | Permalink | Comments (1) | TrackBack (0)

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).


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June 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 14, 2012

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?

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June 14, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2012

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).

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June 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

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.

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June 12, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, June 11, 2012

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?

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June 11, 2012 | Permalink | Comments (4) | TrackBack (0)

Sunday, June 10, 2012

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.

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June 10, 2012 | Permalink | Comments (0) | TrackBack (0)