EvidenceProf Blog

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

Monday, May 7, 2012

Prejudging: 6th Circuit Finds No Problem With Judge Arriving At Daubert Hearing With Opinion Already Written In Fen-Phen Appeal

There's a certain law review that we joke about at my law school. Whenever any of us submit to this law review, we invariably receive an e-mail response within the hour thanking us for our submission but informing us that after careful consideration our article was not selected for publication. Either the members on this law review are the speediest of speed readers semester-in and semester-out, or our submissions go straight from our e-mail accounts into the law review's steel cylinder (e-cylinder?). Of course, in the grand scheme of things, it doesn't take much to see that the problems of three law professors don't amount to a hill of beans in this crazy world. But what if basically the same thing happened to lawyers after a Daubert hearing? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Cunningham, 2012 WL 1500180 (6th Cir. 2012).

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May 7, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, May 6, 2012

Richard Linklater's Bernie, Sudden Passion, Dissociative Episodes & Future Dangerousness

Richard Linklater is one of my very favorite film directors of all time. Probably my favorite line about Linklater's movies comes from an Entertainment Weekly review of Terminator 3:

Sure, there could be a movie in which John Connor and his pals sit around and talk about how there almost were Killer Robots, and debate where John's father came from, and then maybe take some bong hits and play Sega or something. But that would be, like, a Richard Linklater movie.

Many of Linklater's movies are, indeed, extended conversations, beginning with his breakthrough film, 1991's "Slacker," in which we follow character after character (and I mean character) through the streets of Austin, Texas. A decade later, Linklater would make the ambitious "Waking Life," essentially a rotoscoped, fantastical version of "Slacker." Linklater's "SubUrbia" and "Tape" are both filmed plays light on action and heavy on dialogue, the latter taking place in real time in a hotel room. And then there's "Before Sunrise," in which Ethan Hawke's Jesse and Julie Delpy's Celine fall in love while talking through the streets of Vienna. Nine years later, they pick up the conversation again in the bittersweet "Before Sunset." Looking ahead, Linklater's forthcoming Boyhood project, shot over the course of 12 years, promises to be a truly extended conversation about adolescence and the shifting mother-child relationship.

Of course, Linklater is no stranger to more plot-driven, studio fare. He hit a home run with the Jack Black musical comedy, "The School of Rock," but ironically, given his love of baseball, struck out with his remake of "The Bad News Bears." (The only Linklater movie I didn't enjoy). 

Some of Linklater's best work has come when he's made films based upon real life events in his home state of Texas. "Dazed and Confused," commonly referred to as the Gen X "American Graffiti,"  sprang from, as Linklater has said, hearing a song from ZZ Top's "Fandango!" which instantly propelled him back to 1976, cruising around his hometown. And then there's "The Newton Boys," a jovial telling of the story of the titular brothers, who hailed from Uvalde County Texas and were the most successful bank robbers in U.S. history. Later, Linklater returned to his love of baseball in "Inning by Inning: Portrait of a Coach," a philosophical documentary about Auggie Garrido, the baseball coach at the University of Texas and the winningest coach in NCAA history. That takes us to Linklater's most recent offering on the silver screen, "Bernie."


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May 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 5, 2012

Getting Exposed: Northern District Of Oklahoma Deems Public Exposure Conviction Inadmissible In Arson Trial

Federal Rule of Evidence 609(a)(1)(A) provides that

for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

In turn, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, let's say that a defendant is charged with arson and that a witness for the prosecution testifies against him. But let's say that this is no ordinary witness for the prosecution. Instead, let's say that the defendant labels the witness as an alternate suspect with an obvious motive to pin the crime on the defendant. If that witness has a prior conviction for felony indecent exposure, should the defendant be able to use that conviction to impeach him? According to the recent opinion of the United States District Court for the Northern District of Oklahoma in United States v. Perryman, 2012 WL 1536745 (N.D.Okla. 2012), the answer is "no." I'm not sure that I agree.

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

Friday, May 4, 2012

It's My Space, That's Why They Call It MySpace: Court of Appeals of Texas Finds MySpace Comment Covered by Rape Shield Rule

A defendant is charged with various sexual crimes against the alleged victim, a 15 year-old. To support his defense, the defendant seeks to introduce into evidence a comment that the alleged victim made on her MySpace page, where she referred to herself as a "bitch/whore." Should the court admit or exclude this evidence? That was the question confronted by the Court of Appeals of Texas, Waco, in its recent opinion in Dale v. State, 2012 WL 1382446 (Tex.App.-Waco 2012).

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

Thursday, May 3, 2012

Joss Whedon, The Avengers, Buffy The Vampire Slayer, Eli Stone, Reluctant Heroes & The Rule Against Hearsay

Joss Whedon's "The Avengers" will debut at the U.S. box office tonight after cleaning up overseas and with the critics. Although I had previously experienced some version of Whedon's works before 1997 (for instance, he wrote for "Roseanne," was one of the screenwriters on "Toy Story," and did some rewrites on "Waterworld"), I wasn't really aware of who he was until the summer of 1997. I was home for the summer for college and had just come back from a daily 6 mile run to the 7-Eleven and back and was toggling through the channels on the TV. I came upon the WB Network, a network I had never even heard of before. Coming on in a few minutes was the repeat of the premiere of the TV show, "Buffy the Vampire Slayer." 

I remembered having watched the movie version from a few years back, which was an enjoyable enough trifle. The two things that I most remember from the movie were

-(1) a character talking about making a sign for an environmentally themed school dance with the slogan, "Don't tread on me" over a picture of the earth. Buffy's response: "How do you not tread on the earth. I mean, you kind of have to;" and

-(2) Paul Reubens' death scene:


Whedon wrote the screenplay for the movie, but the buzz was that it was bastardized and that the TV show would be more in line with what he intended. A few minutes later, after a Michigan J. Frog intro, I watched the premiere, and I was hooked. Hooked on Buffy. Hooked on Whedon. I've enjoyed everything he's done: BuffyAngelFirefly (my wife's favorite show ever). SerenityDr. HorribleDollhouse. And now, after "The Cabin in the Woods" (which I still need to see), he's prepared to take over the world with "The Avengers."

But Whedon's signature character is and always will be Buffy Summers, who finds contuing life not only in comics but also in the opinions of courts across the country.

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

Wednesday, May 2, 2012

Boardwalk Empire: DNJ Uses Rule 704(b) To Deny Motion For Acquittal In Atlantic City Mortgage Fraud Scheme Case

When the prosecution wants to secure a conviction, it needs to prove that the defendant satisfied the mens rea, or mental state of the crime charged. In some cases, the prosecution will have direct evidence of the defendant's mens rea, most typically when the defendant gives a confession stating what he was thinking at the time of the crime charged. In most cases, however, the prosecution won't have such direct evidence, meaning that it can only present circumstantial evidence from which the jury can infer that the defendant possessed the requisite mens rea. One tool not available to prosecutors is expert testimony concerning the defendant's mental state, which is why the defendant's motion for a judgment of acquittal was unsuccessful in United States v. Shin, 2012 WL 1377597 (D.N.J. 2012).

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

Tuesday, May 1, 2012

The Dog That Didn't Bark In The Night: Appellate Court Of Connecticut Uses Sherlock Holmes To Solve Hearsay Mystery

My first introduction to the character of Sherlock Holmes was in the summer of 1986. I was nine years-old, and my friend and I went to see Disney's "The Great Mouse Detective," with the inimitable Vincent Price voicing the Moriarty-inspired Professor Ratigan. Despite being released in the "dead period" in Disney animation before the renaissance spurred by "The Little Mermaid," "The Great Mouse Detective" remains my favorite hand drawn animated work from that the House of Mouse has produced. I can still picture the climactic confrontation from Big Ben.

In the next few years, I would read several of Sir Arthur Conan Doyle's stories, which my parents had in our house. And I would watch Barry Levinson's "Young Sherlock Holmes" (a harbinger of the CGI-ification of modern movies) and Thom Eberhardt's humorous "Without a Clue" on HBO. But then, despite catching up on some older Holmes' movies, such as Herbert Ross' Holmes/Freud mashup, "The Seven-Per-Cent Solution," I didn't experience much Sherlock Holmes over the next decade-plus. The only Holmes' work that I remember from that period was listening to the audio CD of Michael Chabon's novella, "The Final Solution: A Story of Detection," in which an eighty-nine year old Holmes is called out of retirement to solve a pair of Holocaust-related mysteries.

Lately, though, there's been a Sherlock Holmes resurgence, and I'm not just talking about Holmes-inspired works, ranging from "CSI" to "House." 2009 saw the release of Guy Ritchie's steampunkified "Sherlock Holmes," and 2011 saw the release of its sequel, both with the puckish Robert Downey, Jr. as the titular detective and Jude Law as his straight man sidekick, Dr. Watson. And, if it's picked up, the CBS pilot, "Elementary" will premiere on CBS with Jonny Lee Miller as Holmes and Lucy Liu as Watson in modern day New York City.

For my money, though, the best Sherlock Holmes adaptation that I've ever seen is Steven Moffat's "Sherlock." Like "Elementary,"  "Sherlock" contemporizes the Holmes tale, but in England, with Holmes as a consulting detective to Scotland Yard, and Watson a veteran of the (modern) Afghan War. Moffat, who is also currently helming the reinvention of "Doctor Who," is a master of both plot and character development. And when you've got Benedict Cumberbach playing Holmes in a performance as good as his name and Martin Freeman inhabiting Dr. Watson, you can't go wrong. You can catch up with Series One of "Sherlock" (consisting of three 90 minute episodes) on Netflix instant streaming, and Series Two, which premiered months ago on the BBC, will debut on PBS' Masterpiece Theater this Sunday at 9:00 PM.

The stories of Sherlock Holmes, of course, have had a huge impact on both criminal and civil trial, and you will frequently see judges and lawyers citing to the fictional detective and his powers of detection. Without question, though, the Sherlock Holmes story that courts cite more than any other is "Silver Blaze," which the Appellate Court of Connecticut cited in its recent opinion in State v. Rosado, 2012 WL 1003763 (Conn.App. 2012), to answer a hearsay question.

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May 1, 2012 | Permalink | Comments (2) | TrackBack (0)