EvidenceProf Blog

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

Saturday, August 4, 2012

Pedestrian Opinion: Judge Doubts That Girls Could Have Walked Less Than 1/2 As Fast As Record Racewalker

Today at the Olympics is the men's 20 km racewalk. My wife and I always get a kick out of the sport of racewalking for a few reasons. First, how much respect should be given to a a racewalker? People always talk about the lack of respect given to the lonesome kicker on a football team. Well, aren't racewalkers even more the red headed stepchildren of the track world? Great, so you can walk really fast. But everyone else out here is running. This leads to the second point, which is the number of people disqualified during Olympic racewalks for, well, running.

The are 2 basic rules to racewalking:

The first dictates that the athlete's back toe cannot leave the ground until the heel of the front foot has touched. Violation of this rule is known as loss of contact. The second rule requires that the supporting leg must straighten from the point of contact with the ground and remain straightened until the body passes directly over it.

So, how is this enforced? Well, there are judges along the course

submitting "red cards" for violations results in disqualification. There is a scoreboard placed on the course so competitors can see their violation status. If the third violation is received, the chief judge removes the competitor from the course by showing a red paddle.

This is sort of the inverse of the Richard Bachman/Stephen King novella, "The Long Walk," in which walkers in a futuristic race were shot and killed if they fell below a certain speed three times. Presumably, by the time of "The Long Walk," society had developed technology to detect the speed of the walkers. But, as things stand now, the 2 rules of racewalking are enforced by the human eye, which creates controversy at today's high speeds.

Third, we have the origins of racewalking.

The sport -- currently a Summer Olympics game -- developed from a 19th century form of competitive walking called "Pedestrianism" which was popular on the British Isles. 

The sport was especially popular among the working class who would wager on competitors racing various distances, with some endurance races reaching lengths of 1,000 miles.

Okay, so the origins of your sport are from PedestrianismI? How, well, pedestrian. In high school I ran cross-country and track and always wanted to compete in the Steeplechase because I'm 6'4 and liked longer distances. Unfortunately, the Steeplechase wasn't run in my district (probably liability issues). But, you know what? The Steeplechase has a pretty cool origin story. When your origin story is Pedestrianism, your sport is not cool at all. Even the one case that I could find making reference to racewalking Pact v. Pact, 332 N.Y.S.2d 240 (N.Y.Fam.Ct. 1972), came up pretty lame.

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

Friday, August 3, 2012

Total Recall, Philip K. Dick, The Terminator, Robotic Heads & PreCrime

Today marks the release of "Total Recall," the remake of the 1990 movie, with Len Wiseman stepping in for Paul Verhoeven as director and Colin Farrell taking over for Arnold Schwarzenegger as Douglas Quaid/Hauser. Both of these movies are based (loosely, at least in the case of the 1990 version) on Philip K. Dick's short story, "We Can Remember It For You Wholesale." Dick has had a huge impact on the silver screen, with many of his works being adapated into amazing movies, such as "Blade Runner," "Minority Report," and "A Scanner Darkly."

Dick has also had a sizeable impact on our court system. In Goldberg v. Cameron, 787 F.Supp.2d 1013 (N.D. Cal. 2011), Neil Goldberg sued James Cameron and others for copyright infringement, claiming "that a script and soundtrack he sent to New World Pictures in or around 1979 were misappropriated...and incorporated into the popular action films "The Terminator"...and "Terminator 2: Judgment Day" The Northern District of California disagreed, finding, inter alia, that

The most important similarity between the works involves an unprotectable element: the general idea of a futuristic conflict between man and machines, specifically computers and robots. That theme is a commonplace in science fiction. Indeed, the notion of intelligent machines evolving into conscious beings at war with human beings was originally developed in Mary Shelley's classic Frankenstein (1818). Other portrayals of artificial intelligence at war with humans include Stanley Kubrick and Arthur C. Clarke's 2001: A Space Odyssey (1968), the move Colossus: The Forbin Project (1970), and Philip K. Dick's story "Second Variety" (1952), a post-nuclear apocalypse story in which the defeated forces turn to a guerrilla warfare conducted by self-reproducing machines programmed to destroy anything that lives. (emphasis added).

And then there's the amusing (but not for the plaintiff) case, Hanson v. America West Airlines, 544 F.Supp.2d 1038 (C.D.Cal. 2008). According to the court in Hanson,  

Plaintiff David Hanson...has lost his head. More specifically, Plaintiff has lost an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick...Dick's well-known body of work has resulted in movies-such as Total Recall, Blade Runner, Minority Report, and A Scanner Darkly, and a large group of admirers has grown following his death in Orange County, California, in 1982. His stories have questioned whether robots can be human (see, e.g., Do Androids Dream of Electric Sheep? (1968)), so it seems appropriate that Plaintiff reincarnated Dick as a robot which included the Head, valued at around $750,000.

Plaintiff lost his Head on one of Defendant's planes when flying from Texas to San Francisco with a connection in Las Vegas....Plaintiff brought the Head onto the plane in a carry-on duffel bag and stored it in the overhead bin. Plaintiff fell asleep during the flight from Texas to Las Vegas, and woke up when the plane arrived in Las Vegas....On waking, Plaintiff immediately left the plane to catch his connecting flight to San Francisco....Perhaps because he had just woken up, Plaintiff lacked the total recall to remember to retrieve the Head from the overhead bin.

According to Plaintiff, as soon as he got to San Francisco, he went to the baggage counter, spoke to Defendant's employee, Leanne Miller..., and informed her of the problem....Miller told him that the airplane with his Head was in flight, and could not be checked until it landed in Southern California....Plaintiff offered to fly to Southern California to regain his Head, but Miller told him not to do that....According to Plaintiff, he informed Miller of the importance and value of the Head, and she replied that all efforts would be made to recover the Head and that it would receive "special treatment."

Plaintiff asserts that about 45 minutes later, Miller called him with the good news that the Head had been found in Orange County....Plaintiff "remained willing" to go retrieve his Head, but Miller replied that it would be sent to San Francisco....According to Plaintiff, Miller then informed him of the special security procedures that would be taken to protect and deliver the Head....Plaintiff told Miller that Plaintiff's friend Craig Grossman would be at the airport to pick up the Head....Grossman waited for the Head at the San Francisco airport, but it never arrived and has not been found since....While hearts may be left in San Francisco, heads apparently are left in Orange County, or are simply lost or stolen.

Hanson thus sued America West for conversion, negligence, and involuntary bailment, but the Central District of California granted the defendant's motion for summary judgment, concluding that 

Philip K. Dick and other science fiction luminaries have often explored whether robots might eventually evolve to exercise freedom of choice. See, e.g., 2001: A Space Odyssey (a HAL 9000 exercises his freedom of choice to make some bad decisions). But there is no doubt that humans have the freedom of choice to bind themselves in mutually advantageous contractual relationships. When Plaintiff chose to enter the Contract of Carriage with Defendant he agreed, among other things, to limit Defendant's liability for lost baggage. Failing to show that he is entitled to relief from that agreement, Plaintiff is bound by the terms of that contract, which bars his state law claims.
The Court must GRANT Defendant's Motion. But it does so hoping that the android head of Mr. Dick is someday found, perhaps in an Elysian field of Orange County, Dick's homeland, choosing to dream of electric sheep. 

And then there's In re Detention of Danforth, 264 P.3d 783 (Wash. 2011).

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

Thursday, August 2, 2012

EDNY: Contracts Are Not Closely Related To A Controlling Issue In A Breach Of Contract Case

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Federal Rule of Evidence 1004(d), however, provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:...

(d) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1004(d) is a rarely applied Rule for obvious reasons, and it didn't apply in Seidel v. Hoffman Floor Covering Corp., 2012 WL 3064153 (E.D.N.Y. 2012). But, as the court noted, a judge did rely upon the Rule in another recent opinion, with the judge himself recognizing that his reliance was "strange."

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August 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 1, 2012

History Lesson: Commonwealth Court Of Pennsylvania Opinion Digs Into Origins Of Present Sense Impression Exception

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

In Bell Beverage v. Unemployment Compensation Bd. of Review, 2012 WL 3030285 (Pa.Comwlth. 2012), the Commonwealth Court of Pennsylvania found that statements constituted present sense impressions but, more importantly, gave a nice history of Rule 803(1).

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August 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 31, 2012

Unlawful Entry: 8th Circuit Finds 2 References To Defendant Being Illegal Alien Don't Require Reversal

In United States v. Sanchez-Garcia, 2012 WL 2913255 (8th Cir. 2012), no less than two witnesses for the prosecution improperly made reference to the fact that the defendant was an illegal alien. So, why didn't the Eighth Circuit reverse his conviction?

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July 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Rule 609(b): Probation Edition: Middle District Of Florida Implies Probation Is "Confinement"

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 constitutes "confinement" for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn't stop the court from implying that a period of probation constituted "confinement" for Rule 609(b) purposes.

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July 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 29, 2012

Picture Perfect: Court Of Appeals Of South Carolina Finds Disk Created From Motion-Activated Camera Satisfied Best Evidence Rule

Similar to its federal counterpartSouth Carolina Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

And, similar to its federal counterpartSouth Carolina Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

So, let's say that the victim places a motion-activated camera on his refrigerator, the camera takes photographs that allegedly depict the defendant/burglar, the victim uploads these photographs to his computer and the downloads them onto a disk. If the prosecution presents this disk at trial, has it satisfied South Carolina Rule of Evidence 1002, the Best Evidence Rule? According to the recent opinion of the Court of Appeals of South Carolina in State v. Mitchell, 3025099 (S.C.App. 2012), the answer is "yes."

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July 29, 2012 | Permalink | Comments (0) | TrackBack (0)