EvidenceProf Blog

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

Monday, June 25, 2012

Welcome The Juvenile Justice Blog To The Blogosphere

As I prepared to start teaching Evidence in 2007, I was surprised to see that there was no blog on the topic of evidence law. I thus decided to start this blog to note recent developments in evidence law, precedent, and scholarship. The same type of thinking led Tamar Birckhead, a professor at the University of North Carolina School of Law, to launch the terrific new blog, the Juvenile Justice Blog (which you can also follow on Twitter and Facebook).

Juvenile Justice Blog


According to Professor Birckhead,

While I have been a faithful reader of law professors' criminal law blogs, I've been acutely aware of the fact that there hasn't been one with a specific focus on juvenile justice.  My goal is to feature the latest legal scholarship, conference news, and discussion of case law in this area.  I hope the site will be of use and relevance to other legal scholars as well as practitioners, advocates, and anyone else interested in the ways in which our society approaches young people in conflict with the law.  

I find that the best blogs combine two features: (1) a true expert in the field; and (2) critical analysis rather than just posting links. With the Juvenile Justice Blog, it is safe to say that we are in good hands. Before coming to UNC, Professor Birckhead was a public defender for a decade, and she is currently a member of (1) the executive council of the Juvenile Justice and Children's Rights Section of the North Carolina Bar Association; (2) the advisory board for the North Carolina Juvenile Defender; and (3) the Juvenile Defender Section of the North Carolina Academy of Trial Lawyers.

At UNC, Professor Birckhead has taught classes such as a Juvenile Justice Clinic and Juvenile Courts & Delinquency, and she has published several works in the field of juvenile justice, including


•The Challenges of Defending Juveniles in Delinquency Court, in AN UNFULFILLED PROMISE: JUVENILE JUSTICE IN AMERICA 88–104 (Cathryn Crawford ed., 2012);

Delinquent by Reason of Poverty, 38 WASH. U. J.L. & POL’Y 53–107 (2012);

Juvenile Justice Reform 2.0, 20 J.L. & POL’Y 15 (2011)

Culture Clash: The Challenge of Lawyering across Difference in Juvenile Court, 62 RUTGERS L. REV. 959–991 (2010);

North Carolina, Juvenile Court Jurisdiction, and the Resistance to Reform, 86 N.C. L. REV. 1443–1500 (2008);

The Age of the Child: Interrogating Juveniles after Roper v. Simmons, 65 WASH. & LEE L. REV. 385–450 (2008); and

•White Paper, Action for Children N.C., New Research Analyzes N.C.’s Century-Long Refusal to Include 16- and 17-Year-Olds in Juvenile Court (Nov. 12, 2008).  

In just her first week of posting, Professor Birckhead has made clear that there will be a good deal of depth and breadth to her blog. In one post, she uses an e-mail from former students as an avenue through which to explore whether juvenile justice practitioners and advocates are making a difference in the lives of their clients. In another post, the recent fact sheet Drug Courts affords Professor Birckhead an opportunity to discuss "juvenile specialty courts." And, in a third post, Professor Birckhead delves into questions regarding the raising of the age for juvenile court jurisdiction in North Carolina.

On the blog, you will also find posts about juvenile justice studiesjuvenile justice job openingsjuvenile justice articlesjuvenile justice booksjuvenile justice conferences, and juvenile justice commentary. In each of these posts, you can feel Professor Birckhead's passion for juvenile justice, and it is that passion combined with her insight that makes her blog bookmark-worthy for anyone with an interest in juvenile justice.

Professor Birckhead describes the blog as follows:

The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.

It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.

And, over e-mail, she explained to me that  

I've been in the legal academy for over eight years now, I've written quite a bit in this area (traditional legal scholarship, a casebook, and many op-eds), and I think I have a good sense of what other folks might find engaging and thought-provoking.  Also, having recently earned tenure, it seemed like a good opportunity to put myself out there in a more visible way and to take some risks.  And, maybe most importantly, it has been a lot of fun -- both the creation and editing of the site as well as having a forum for a looser, more creative style of writing. 


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

Sunday, June 24, 2012

Come Be My Conspiracy: Ben Trachtenberg's Amicus Brief On Co-Conspirator Admissions & Lawful Ventures

I'm still in the process of moving and should be back to regular blogging next weekend, but I wanted to quickly post an entry about an amicus brief (Download Amicus Brief) written by Professor Ben Trachtenberg (who has guest blogged on this site). The brief addresses a subject that Professor Trachtenberg first wrote about in his terrific article, Coconspirators, "Coventurers," and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010): whether Federal Rule of Evidence 801(d)(2)(E), which deems co-conspirator admissions nonhearsay, should apply to statements made during the course of and in furtherance of lawful ventures. 

I first became aware of this issue when I posted an entry about the

opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008)....In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making "Jell-O" shots, and making arrangements to collect money at the door and split the proceeds.  According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).

Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age.  During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay.

Defense counsel argued that

for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal.  According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.

In addressing this argument, the Supreme Court of Iowa

first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong."  The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal."  It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means."  

Professor Trachtenberg read my post and sent me a draft of what became his "Coventurers" article, which digs deep into the history of the co-conspirator admission rule to reach the same conclusion as the Supreme Court of Iowa. I strongly agreed with the points made in the article and was thus happy to sign onto his amicus brief, which makes many of the same arguments. Professor Ann Murphy (also an EvidenceProf guest blogger) has already done a nice write-up of the case that is the subject of the amicus brief on the Evidence in the News website. Professor Murphy has also signed onto the brief as have Edward ChengJanet HoeffelJames KainenDeborah Jones MerrittRichard Moberly, and Stephen Saltzburg. Here's hoping that the Supreme Court grants cert in the case.


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

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)

Saturday, June 9, 2012

With No Objection In The Middle There's Some Leeway: EDVA Requires No Contemporaneous Objection In Golden Rule Appeal

Sometimes, an attorney's closing argument is so over the top that it is easy for opposing counsel to object. Think Al Pacino's closing argument in ...And Justice for All. Other times, it is exceedingly difficult to raise a contemporaneous objection. For example, can you imagine trying to object in the middle of Matthew McConaughey's closing argument in A Time to Kill?    

So, should a contemporaneous objection during closing argument be required? According to the recent opinion of the United States District Court for the Eastern District of Virginia in Ray v. Allergan, Inc., 2012 WL 1979226 (E.D.Va. 2012), the Fourth Circuit has issued contradictory opinions on the issue. So, could those opinions be harmonized?

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June 9, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, June 8, 2012

Ridley Scott's Prometheus, An Origin Story For The Rules Of Evidence & The Largest Sexual Harassment Award in U.S. History

Has any director come out of the starting gate more surely than Ridley Scott? In 1977, the Brit, then known primarily for commercials, made his big screen debut with "The Duellists." Based on a story by Joseph Conrad"The Duellists"

is narrowly focused on a longstanding feud between two officers in Napoleon's army. Harvey Keitel plays Feraud, a plebeian, hot-tempered lieutenant who develops such a hatred for the more aristocratic D'Hubert (Keith Carradine) that he challenges him to several gun duels over two decades that end in injury to both but never death.

Often described as a companion piece to Stanley Kubrick's "Barry Lyndon," "The Duellists" is an engrossing cocktail of obsession and honor. It is also my favorite Ridley Scott film and sports a 90% fresh rating at Rotten Tomatoes. Scott's next two films? "Alien" and "Blade Runner," frequently cited as among the best and most influential horror and science fiction films of all time.

So, what other directors can match up to Scott with their first 3 feature (non-TV) films? The best comparison would be Stephen Spielberg, who also debuted with a smaller, quality film ("The Sugarland Express") and then followed it up with two movies -- "Jaws" and "Close Encounters of the Third Kind" -- which are considered among the best and most influential horror and science fiction films of all time.

Who else belongs in the same conversation? Off the top of my head, here would be the rest of my top 10, in no particular order:

Wes Anderson, with "Bottle Rocket," "Rushmore," and "The Royal Tennenbaums;"

•The Coen Brothers, with "Blood Simple," "Raising Arizona," and "Miller's Crossing;"

Paul Thomas Anderson, with "Sydney," "Boogie Nights," and "Magnolia;"

George Lucas, with "THX 1138," "American Graffiti," and "Star Wars;"

Rob Reiner, with "This is Spinal Tap," "The Sure Thing," and "Stand by Me;"

Roman Polanski, with "Knife in the Water," "Repulsion," and "Cul-de-sac;"

Terrence Malick, with "Badlands," "Days of Heaven," and "The Thin Red Line;" and

Quentin Tarantino, with "Reservoir Dogs," "Pulp Fiction," and "Jackie Brown."

I'm sure that I'm missing some others (Preston SturgesTim BurtonSpike JonzeSpike Lee, and David O. Russell, to name a few), and I only included directors if I saw each of their three first films. So, tying back to yesterday's post, François Truffaut, who directed "Fahrenheit 451," had "The 400 Blows," "Shoot the Piano Player," and "Jules et Jim" as his first 3 films. And while all of Truffaut's first three films were lavished with critical praise, I've never seen Piano Player.

If you asked 10 people which of the above directors had the best first three feature films, you could easily get three different responses. But if you asked those 10 people which of the above directors had the most influential first three films, the answer is likely to be Scott or Spielberg, both of whom had 2 (literal) monster smashes that still reverberate in modern cinema. Scott's new film, "Prometheus," which opens today, is a return to his roots, serving as a sort-of prequel to "Alien." And, according to Scott, the film was inspired by the myth of Prometheus:

"We named the ship Prometheus as a reference to the character in Greek mythology who alternatively gave fire to man or shaped man’s image from clay," Scott explains. "In either case, he was instrumental in changing the entire evolution of mankind. He also angered the gods in a big way and suffered mercilessly for it. All three aspects of the myth have analogies in our story." 

In this sense, Scott is no different from many players in the American justice system, who often make reference to the myth of Prometheus.

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June 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 7, 2012

Ray Bradbury, Something Wicked This Way Comes, Carnival Of Souls, NBC's Heroes, Evel Knievel & Judicial Notice

Ray Bradbury, who passed away yesterday, was certainly a formative influence on my childhood. As I'm sure was the case for many children of the 1980s, my first exposure to the sci fi author was Spaceship Earth at EpcotBradbury helped design the gigantic golf ball and also helped write the storyline for the attraction. After that, my brother and I were constantly checking out his short story collections from the library. One of my favorite short stories of his, "Marionettes, Inc.," would become my prose piece of choice for junior high forensics before I became an extemporaneous speaker. Around the same time, we were assigned "Fahrenheit 451" and "A Sound of Thunder" in English class, both of which scarcely seemed like homework at all. "The Ray Bradbury Theater," which ran from 1985-1992, was also a staple of my childhood. The episode that most gave me the willies was the one that gave me the Willie....Shatner that is. In 1985's "The Playground," Shatner played Charles Underhill, with IMDB describing the episode as follows:

Charles Underhill lives in the suburb with his young son Steve, but he does not allow Steve to play in the nearby playground with other children. Charles has a childhood trauma with the bully Ralph and his friends, and he frequently sees his ghost challenging him, until the day he decides to go to the playground with Steve and face the wounds of his past.

I'm sure that my experience with Bradbury was no different than the experiences of any number of children and adults over the last several decades, which is why I can safely say that he is deeply ingrained in American pop culture. And that was precisely the problem from the plaintiff, Jazan Wild, the author of the graphic novel, "Carnival of Souls," in his copyright action against NBC Universal for the fourth season of the television show "Heroes."

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June 7, 2012 | Permalink | Comments (4) | TrackBack (0)

Wednesday, June 6, 2012

Formative Assessment: Does Probation Constitute "Confinement," & How Much Balancing Is Required Under Rule 609(b)?

Federal Rule of Evidence 609(b) provides 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, does probation count as "confinement" for Rule 609(b) purposes? Courts are split on the issue. So, what did the Middle District of Pennsylvania find in its recent opinion in Wink v. Ott, 2012 WL 1979461 (M.D.Pa. 2012)?

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June 6, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 5, 2012

Make A Note Of It: Court Of Appeals Of Texas Finds Prosecution's Notes Are Not Witness Statements

Texas Rule of Evidence 615(a) provides that

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

Meanwhile, Texas Rule of Evidence 615(f) indicates that 

As used in this rule, a "statement" of a witness means:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

So, let's say that the government has notes from its interview with a witness for the prosecution. Do these notes constitute a "statement" of a witness that has to disclose upon a defense motion? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Wilkerson v. State, 2012 WL 1940650 (Tex.App.-San Antonio 2012), the answer is "no."

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

Monday, June 4, 2012

Q: What Does Nitroglycerin Mean? A: Not Guilty; 3rd Circuit Fails To Decide Whether Text Message Was Recorded Recollection

Federal 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.

And while the Third Circuit didn't reach the issue in United States v. Blackett, 2012 WL 1925540 (3rd Cir. 2012), it seems pretty clear that a text message can easily qualify as a recorded recollection under Rule 803(5).

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

Sunday, June 3, 2012

Out Of Time: Court Of Appeals Of Indiana Finds Rule 412(b)(1) Fatal To Ineffective Assistance Claim

Indiana Rule of Evidence 412(a)(1) contains an exception to Indiana's rape shield rule for "evidence of the victim’s or of a witness’s past sexual conduct with the defendant...." That said, pursuant to Indiana Rule of Evidence 412(b)(1), If a party proposes to offer evidence under this rule, "A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial." It was this latter provision that was fatal to part of the defendant's appeal in Rogers v. State, 2012 WL 1944826 (Ind.App. 2012).

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

Saturday, June 2, 2012

Outsourcing Blues

It's not evidence law related, but here's a guest post I did over at The Faculty Lounge: Vince Vaughn, Owen Wilson, Interns, Outsourcing, and Why the United States Should Enact a National Film Incentive. Many thanks to Tim Zinnecker for posting it.


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

Able To Waive Attorney-Client Privilege In A Single Disclosure: 9th Circuit Rejects Selective Waiver Doctrine In Superman Case

In its 1977 opinion in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977), the Eighth Circuit adopted the selective waiver doctrine, which allows corporations seeking to use a confidentiality agreement to disclose to the government information protected by the attorney-client privilege and still maintain that privilege against all others. Here's the relevant language from the court's opinion:

We finally address the issue of whether Diversified waived its attorney-client privilege with respect to the privileged material by voluntarily surrendering it to the SEC pursuant to an agency subpoena. As Diversified disclosed these documents in a separate and nonpublic SEC investigation, we conclude that only a limited waiver of the privilege occurred....To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.

But since Meredith, every other federal circuit to address the issue has rejected the selective waiver doctrine:

In re Qwest Commc'ns Int'l, 450 F.3d 1179, 1197 (10th Cir.2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir.2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir.1997); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1416–18 (Fed.Cir.1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir.1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981).

After In re Pacific Pictures Corp., 2012 WL 1640627 (9th Cir. 2012), a case involving D.C. Comics suing the heirs of the creators of Superman and others, you can now add the Ninth Circuit to their ranks.

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

Friday, June 1, 2012

Snow White & The Real Huntsman: U.S. v. Dade & How Modern Depictions Of Snow White Might Change The Way Courts Use Her Name

With today's release of Rupert Sanders' directorial debut, "Snow White and the Hunstman," there have now been three pieces of pop culture in the last few months tweaking the classic fairy tale of "Snow White," with the other two being Tarsem Singh's cheeky "Mirror Mirror" and the ABC TV show "Once Upon a Time." Critics have contended that the version of Snow White played by Lily Collins in "Mirror Mirror" is a "feminist reincarnation," "both innocent and powerful, able to fight her own battles and make decisions independently." Kristen Stewart's Snow White in "Snow White and the Hunstman," has been described "as a warrior princess who saves a ravaged kingdom from an evil Queen..., after being trained by a huntsman...instructed to kill her." And Ginnifer Goodwin's Snow White in "Once Upon a Time," transported to present day, ends up engaging in an affair with a married Prince Charming. In other words, in each of these three modern retellings, the story's the same: This isn't your grandmother's Snow White. So the question becomes: As we drag Snow White into the 21st Century (literally, in the case of "Once Upon a Time"), do we change the way that we use her name as she is transformed from the essence of purity and innocence to something a good deal more complicated (and realistic)? And what effect will this have on litigation? Specifically, could we see a case like last year's United States v. Dade, 2011 WL 6301123 (D.Idaho 2011), in the next decade or so?

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