EvidenceProf Blog

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

Saturday, July 28, 2012

Eyeball Reliance?: Second Circuit Finds That Rule 406 Applied In Misleading Statements Appeal

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

This "habit" rule is often used to prove a "matter of practice," as was the case with the recent opinion of the Second Circuit in Gould v. Winstar Communications, Inc., 2012 WL 2924254 (2nd Cir. 2012).

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

Friday, July 27, 2012

William Friedkin, "Killer Joe," "The Exorcist," "The Possessed Razor," "Beyond The Door" & Valuing A Stolen Movie

Today marks the release of William Friedkin's "Killer Joe," his first theatrical effort since 2006's creepy "Bug." Friedkin has had his share of terrific films, including "The French Connection," "To Live and Die in L.A.," and "Sorcerer." But, of course, Friedkin's signature film and the one he's most known for is 1973's "The Exorcist." Unsurprisingly, that film is also the Friedkin film that is cited most often by courts. Also unsurprisingly, most court references to "The Exorcist" cite to the appearance and behavior of the Linda Blair character in the film:

-Gillette Co. v. Norelco Consumer Products Co., 69 F.Supp.2d 246, 249 (D.Mass. 1999) ("The commercial called 'The Possessed Razor' features what appears to be the same animated wet razor as in the 'Fire Breathing Razor' commercial. This time, however, the razor corrodes and twists its 'neck and head,'apparently in an effort to evoke recollection of a scene from the motion picture The Exorcist.");

-People v. Vargas, 2012 WL 1107712 (Cal.App. 2 Dist. 2012) ("According to Vargas, he was diagnosed as suffering from paranoid schizophrenia. When Thompson fails to take her medication, she acts 'like something out of 'The Exorcist.'");

-Sophia S. v. Superior Court, 2011 WL 184549 (Cal.App. 2 Dist. 2011) ("The court noted that it had become concerned when A.A. suffered bruises and the caretakers provided several different explanations about how this occurred. After that, when the children appeared in court, the girls looked like the girl in The Exorcist, exhibiting zombie-like behavior."); and

-People v. Scott, 121 P.2d 366, 370 n.2 (Colo.O.P.D.J. 2005) ("Respondent's described his own voice as sounding like a character from 'The Exorcist.'").

And then, there are the cases involving the movie itself. One of these, Warner Bros. Inc. v. Film Ventures Intern., 403 F.Supp. 522 (C.D. Cal. 1975), saw the producers of "The Exorcist" suing the producers of "Beyond the Door" for copyright infringement. The court found no such infringement but did grant a preliminary injunction because of two problems with the following poster:

1. "It showed a partially opened door with light coming through into a dark room, just like a poster for "The Exorcist;" and

2. "The use of the letter "T" in the poster is intentionally designed to resemble a crucifix, which "created a suggestion that 'Beyond' is a sequel to 'The Exorcist' and possibly that it was produced by the same craftsmen who skillfully produced 'The Exorcist', and that it might be a film of the superior quality of ‘The Exorcist’, which it is not." (emphasis added).

And then there's United States v. Atherton, 561 F.2d 747 (9th Cir. 1977).

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

Thursday, July 26, 2012

Return To Sender: Court Of Appeals Of Virginia Finds E-Mail Inadmissible Under State Of Mind Exception

[Update: 9/13/12: As shown by this Replacement Opening Brief of Appellant [Download Replacement Opening Brief], there is a colorable claim that the e-mail was not admitted to prove the truth of the matter asserted, which would make it non-hearsay.]

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Virginia doesn't yet (but will soon have) codified rules of evidence, but its courts do recognize the same state of mind exception to the rule against hearsay. See, e.g., Andrews v. Creacy, 696 S.E.2d 218, 227-28 (Va.App. 2010). What this also means is that, as with Federal Rule of Evidence 803(3), Virginia's state of mind exception doesn't cover statements of memory or belief. And that was precisely the problem for the appellee in Tucker v. Clarke, 2012 Wl 2886713 (Va.App. 2012).

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July 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2012

iTrial: Tria Judge Grants Apple's Motion For Adverse Inference Instruction Based On Samsung's Auto-Deletion Of E-Mails

A huge trial looms between tech giants Samsung and Apple. Apple "believes Samsung owes “substantial monetary damages” in the region of $2.5 billion for illegally copying Apple products such as the iPhone and iPad." In turn, Samsung claims that "Apple could not have become a successful participant in the mobile telecommunications industry" without the use of Samsung’s patented technology and that the iPhone maker was trying "to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits." 

So,who will win? I don't know, but the judge's pretrial order grating Apple's motion for an adverse inference instruction based upon spoliation of evidence can't hurt the company that Steve Jobs built. So, what was the basis for the judge's ruling?

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July 25, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 24, 2012

This IS A Recording: Court Of Appeals Of Utah Bypasses Rule 803(5) Issue By Finding Harmless Error

Similar to its federal counterpartUtah 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.

In In re J.H., 2012 WL 2924061 (Utah App. 2012), the juvenile court almost certainly erred by allowing for the admission of a journal into evidence in violation of Rule 803(5). So, why didn't the Court of Appeals of Utah acknowledge this mistake?

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July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Under The Shield: Should The Rape Shield Rule Apply At Sentencing Hearings?

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

At the same time, it is well established that the Federal Rules of Evidence do not apply at a sentencing hearing. See Federal Rule of Evidence 1101(d). So, let's say that a defendant is convicted of (1) persuading a minor to engage in sexually explicit activity for the purpose of producing a visual depiction, (2) use of a means of interstate commerce to persuade a minor to perform sexual acts, (3) receipt of child pornography, and (4) possession of child pornography. And, let's say that the defendant thereafter seeks to present evidence of the victim's other sexual behavior or predisposition at his sentencing hearing. Because the Federal Rules of Evidence do not apply at a sentencing hearing, does that mean that the Rape Shield Rule does not apply? Let's take a look at the recent opinion of the Sixth Circuit in United States v. Ogden, 2012 WL 2895261 (6th Cir. 2012).

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July 23, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, July 22, 2012

And, Cousin, I'm A Union Man: Supreme Court Of Alaska Recognizes A Union-Relations Privilege

In Peterson v. State, 2012 WL 2947636 (Alaska 2012), 

Russell Peterson, Jr. began working for the Alaska Department of Labor in 2007. He became a member of the Alaska State Employees Association (ASEA) union. In 2009 he requested service time credit for a previous period of employment with the State; while investigating his request the State discovered Peterson's 2007 job application did not disclose a previous felony. The State subsequently terminated Peterson's employment.

Peterson filed a grievance under ASEA's collective bargaining agreement (CBA) with the State. The CBA states only the union, and not private counsel, may represent an employee in the grievance process. A non-lawyer ASEA representative handled Peterson's grievance. The ASEA representative communicated with Peterson's attorney, Douglas Mertz, regarding strategy. ASEA and the State were unable to resolve Peterson's grievance and ASEA decided not to pursue arbitration. Peterson then filed suit in superior court for wrongful termination.

The State subpoenaed the ASEA representative to appear for a deposition with the union grievance file pertaining to Peterson, including all written communication between ASEA and Mertz. Peterson sought a protective order on privilege grounds. The superior court denied the motion, holding that any attorney-client privilege covering Mertz's letters was waived by giving the letters to the union and that there was no basis for recognizing a new union-relations privilege.

The Supreme Court of Alaska reversed and decided to recognize a new union-relations privilege.

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July 22, 2012 | Permalink | Comments (0) | TrackBack (0)