EvidenceProf Blog

A Vampire Lawyer Novel For Halloween: Vampire Esquire, by Michael Wells, Jr.

As far as I can tell, there has never been a book about a vampire lawyer. In Dracula, Jonathan Harker was a solicitor while "lawyer" was one of the many hats that Abraham Van Helsing wore. But both of these men were vampire hunters, not vampires themselves. I'm also not aware of a vampire laywer on film, unless you count this recent "Funny or Die" clip with Chris Pine. There apparently is a case of a real-world vampire lawyer, but the less said about that the better.

Returning to the realm of the fictional, Michael Wells, Jr., a partner at Wells Liipfert, PLLC (and the author of the blogs Southern Lawyer NC and Vampire Esquire), has written the vampire novel, Vampire Esquire. The book is copyrighted, and Wells plans to submit it to publishers soon. I asked Wells, who tweets at @slnc01, two questions about the book, and here are his responses:

1. What led you to write a book about a vampire lawyer?

I always enjoyed creative writing, and I wanted to write a novel.  I have published articles and stories but never a novel.  Stephen King and John Grisham are two of my favorite writers so I thought I would combine elements of each.  One of my favorite archetypes in literature is the vampire because it is both the antithesis of human existence in that it is undead and human at the same time because it retains vestiges of humanity.  I also thought I could use vampires to point out problems with our political system because my book is largely about the destructive force of big money in politics.  Likewise, the book equates vampirism with destroying government programs meant to help those down on their luck.  I also enjoyed creating vampire hunters based on Stoker’s  Van Helsing and Roland Deschain from Stephen King’s the Dark Tower Series.  My main character is 2,000 years old, a good vampire, a lawyer and a former Roman Senator.  There should be something in the book for everyone.

2. What is the book's plot?

Pierre Leblanc the “vampire esquire” is a 2,000 year old vampire turned during the ‘Great Fire of Rome’ in 64 AD.  He is wrest away from his loving Roman wife and great life as a successful  lawyer and his career as a Roman Senator.  He later escapes his maker.  He lives in Europe for hundreds of years until he finally makes it to the United States and eventually to Chicago.  A vampire billionaire, named Vladimir Lenin, wants to take over the United States through his Parisian company, Nero Corporation, where he attempts to buy the Presidential election and Congressional elections.  He manages to buy off Congress and gets them to dismantle government programs, Medicaid in particular, thereby creating a critical mass of people off the grid to make into vampires.  The President stays in power and is the check to the tyrannical Congress.  

Pierre along with vampire hunters William Magnum (grisly vampire hunter), Roland Walker (disgraced Iraqi war vet in search of redemption) and the President, who is also a vampire hunter, are aided by the Society of the Silver Stake (a secret vampire hunting society).  A vampire v. human war ensues.  Humans win.  In a last ditch effort,  vampires enter the White House to kill the President, but they are thwarted by the vampire hunters, the Society and Pierre Leblanc.  The plan fails.  Lenin is revealed to be Leblanc’s maker, and Leblanc kills Lenin.  

One key member of Lenin’s progeny escapes setting up the sequel.

Authentication Via Blockchain Technology

A block chain is a transaction database shared by all nodes participating in a system based on the Bitcoin protocol. A full copy of a currency's block chain contains every transaction ever executed in the currency. With this information, one can find out how much value belonged to each address at any point in history.  

Every block contains a hash of the previous block. This has the effect of creating a chain of blocks from the genesis block to the current block. Each block is guaranteed to come after the previous block chronologically because the previous block's hash would otherwise not be known. Each block is also computationally impractical to modify once it has been in the chain for a while because every block after it would also have to be regenerated. These properties are what make double-spending of bitcoins very difficult. The block chain is the main innovation of Bitcoin.

According to Joseph Wright's article, Blockchain Technology Underpinning Bitcoin Used to Authenticate Documents, Digital Art, "[t]he blockchain offers a promising solutions for document authentication in legal disputes and for preventing digital art forgeries." But can the blockchain technology meet the authentication requirements of the Federal Rules of Evidence? I spoke with Wright about this issue, and part of our discussion is included in the article, which is available here  Download Blockchain Article. This article is reproduced with permission from Electronic Commerce & Law Report, 19 ECLR 1400 (Oct. 29, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)http://www.bna.com.

-CM

Patently True: Rule 803(8) & the United States Patent and Trademark Office

Today, a student stopped by my office and asked about whether patents are admissible despite the rule against hearsay. My inclination was to respond that they would be admissible under Federal Rule of Evidence 803(8), which provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, are patents admissible under Rule 803(8)? And what about other documents issued by the United States Patent and Trademark Office? Let's take a look at the opinion of the United States District Court for the Northern District of California in Fresenius Medical Care Holdings, Inc. v. Baxter Intern., Inc., 2006 WL 1330003 (N.D. Cal. 2006).

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Show Me, Take 2: Missouri Prosecutor Claims Missouri Has Strictest Limitations on Child Molestation Evidence

Last week, I posted an entry about a proposed Missouri Constitutional Amendment that would, in essence, create a state counterpart to Federal Rule of Evidence 414(a) and allow for the admission of prior acts of child molestation by a defendant on trial for child molestation. In that post, I cited an article that quoted prosecutor as saying that "Missouri is now among the most restrictive states in the country when it comes to presenting such evidence." 

Now, in an op-ed written for the Columbia Daily Tribune, prosecutor Dan Knight argues that

Missouri has the strictest limitations on the use of propensity evidence of any state in the country. Such evidence is specifically allowed in federal courts under the Federal Rules of Evidence, and it is not prohibited by the U.S. Constitution. Because propensity evidence is barred in Missouri, cases involving sex crimes against children are quite possibly more difficult to prosecute in this state than in any other state.

As I noted in my prior post, I see no support for this contention. In a blog post, as of 2011, only 11 states had enacted counterparts to Federal Rule of Evidence 414(a). That means that 39 states (or possibly 1 or 2 fewer if others have since enacted counterparts) have the exact same prohibition of the admissi0n of child molestation evidence as Missouri.

-CM

Yes or No? Supreme Court of Georgia Finds Head Nods Constituted Dying Declarations

Section 24-3-6 of the Georgia Code provides that

Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.

It is well established under this and similar hearsay exceptions that such "dying declarations" are admissible even if they come in response to questions. See, e.g., 4 Louisell & Mueller, Federal Evidence § 488, p. 1124 ("Indeed, a person in his dying moments may be inclined more toward silence than conversation, and the stimulus of a question may be essential."). But what if a declarant's dying declaration consists solely of a nod of the head in response to the question, "Did X shoot you?" Let's take a look at the recent opinion of the Supreme Court of Georgia in Wiggins v. State, 2014 WL 4667524 (Ga. 2014).

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Leslie Shoebotham on Heien v. North Carolina & Police Mistakes of Law

Leslie A. Shoebotham, the Victor H. Schiro Distinguished Professor of Law at the Loyola University New Orleans College of Law, has a terrific blog post up at Hamilton and Griffin on Rights about Heien v. North Carolina. The issue that the Supreme Court is set to decide in Heien is: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. Professor Shoebotham, who attended oral arguments in Heien, leads her post as follows:

The Supreme Court opened its new Term by hearing argument in Heien v. North Carolina, a Fourth Amendment case that asks whether a police officer’s mistaken understanding of a traffic statute—a mistake of law—can provide the requisite suspicion under the Fourth Amendment to support an investigatory stop of a vehicle. I attended oral argument and found the Justices to be frustrated by the unusual posture of the case before them. Heien seemingly grew in what amounts to a Petri dish of background North Carolina law and meticulous pruning of legal arguments—which the parties argued meant that the Court was limited to considering only the question of whether the traffic stop at issue violated the Fourth Amendment, not the consequences if the Fourth Amendment was, indeed, violated.

You can check out the rest of the post by clicking here.

-CM

Drinking Problems: Prosecution Moves to Preclude Expert Testimony in Vanderbilt Rape Case

According to an article on WKRN,

With less than a week before former Vanderbilt University football players Brandon Vandenburg and Corey Batey go on trial for an alleged on-campus rape, a new motion filed by prosecutors asks to exclude an expert testimony.  

Prosecutors are asking the testimony given by forensic psychologist Dr. Stefanie Stolinsky be excluded on grounds the testimony is “not based on relevant scientific methods, processes or data and is therefore purely subjective.”  

According to her findings, Vandenburg was too drunk to know what was going on the night of June 23, 2013 when an unconscious female was allegedly raped inside a dorm room at Gillete Hall.

So, will the prosecution be successful?

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Show Me: Proposed Missouri Constitutional Amendment Would Allow For Admission of Child Molestation Evidence

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

I'm not 100% sure whether my numbers are up to date, but when I posted this entry in 2011, eleven states had counterparts to Rule 414(a). Will Missouri become #12?

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Forthcoming Evidence Article of Interest: “The Evidentiary Rules of Engagement in the War Against Domestic Violence"

Just read this forthcoming article 

"The Evidentiary Rules of Engagement in the War Against Domestic Violence"

by Erin Collins (NYU)

It provides an informative survey and critique of state evidence rules/doctrines that make it easier to prosecute domestic violence cases.  Worth a look for those interested in these important and complex questions.

Abstract after the fold

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Forfeit Loss; Court of Appeals of Michigan Bungles Forfeiture by Wrongdoing Ruling

Similar to its federal counterpart, Michigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Assume a defendant is charged with a crime such as battery kills a witness for the prosecution who planned to testify at that trial. Clearly, this "forefeiture by wrongdoing" exception would apply at the robbery trial. But should it also apply at the defendant's trial for murdering the witness? According to the recent opinion of the Court of Appeals of Michigan in People v. Aiden, 2014 WL 4930703 (Mich.App. 2014), the answer is "no." I disagree.

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With Us or Against Us?: Court of Appeals Finds Alternate Suspect Confession Inadmissible

Similar to Federal Rule of Evidence 804(b)(3), Wisconsin Statute Section 908.045(4) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.

In State v. Amonoo, 2014 WL 4976615 (Wis.App. 2014), the trial court prevented the defendant from presenting a statement against interest. But was that statement corroborated?

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Die Another Day: Ohio Court Finds Victim's Clicking Noises Qualify as Dying Declarations

According to an article in the Ledger-Enquirer,

Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.  

He could not speak. All he could do was click with his mouth.  

In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.  

Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 201[0].  

Fairburn reported Grimes first mouthed the name "Jarvis" when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.  

Using this method, Fairburn got Grimes to spell "Jarvis Alexander" and "Josh Leonard." Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.  

Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.  

Should Grimes's "statements" be deemed admissible as dying declarations?

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Free Shoes University?: Michael McCann & a Florida State Student Conduct Code Proceeding Against Jameis Winston

Sports Illustrated has a great piece by Michael McCann about what a student code of conduct hearing would look like for Heisman-winning quarterback Jameis Winston. I previously blogged about possible evidentiary issues at a potential criminal trial against Winston in this post. The gist of McCann's piece is that none of these evidentiary issues would arise at a student code of conduct hearing. Why?

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Fixing Morton's Fork: Mississippi Courts and the Luce Preservation Rule

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. That said, many states have decided not to apply Luce in the strictest sense. For an example, consider the recent opinion of the Court of Appeals of Mississippi in Wallace v. State, 2014 WL 5137564 (Miss.App. 2014).

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Drugged Up?: Colorado Court of Appeals Deems Evidence From Drugs.Com Inadmissible Under Rule 803(17)

Similar to its federal counterpart, Colorado Rule of Evidence 803(17) provides an exception to the rule against hearsay for

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

As I have previously noted on this blog, and as the Colorado Court of Appeals noted in People v. Hard, 2014 WL 5033147 (Colo.App. 2014), this exception allows for the admission of things such as evidence from the Kelley Blue Book. But Hard didn't deal with evidence from the Kelley Blue Book. It dealt with evidence from Drugs.com.

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The Set Up: Northern District of Illinois Finds Former Testimony Exception Applies in Malicious Prosecution Case

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony that:  

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and  

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Last month, I posted an entry an entry about a case in which the Supreme Court of Ohio found that asbestos manufacturers were not predecessors in interest to H.J. Heinz Company in a case in which a Heinz employee first sued the manufacturers and then sued Heinz. Did the United States District Court for the Northern District of Illinois reach a similar conclusion in Fields v. City of Chicago, 2014 WL 477394 (N.D.Ill. 2014)?

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Selective Juroring: Supreme Court Hears Oral Argument on Jury Impeachment Case

Yesterday, Adam Liptak published the story, Justices Hear Case on Allowing Testimony by Jurors, in the New York Times. The story concerns the oral argument in Warger v. Shauers, the Supreme Court case addressing the following issue:

Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.  

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.  

(2) Exceptions. A juror may testify about whether:  

(A) extraneous prejudicial information was improperly brought to the jury’s attention;  

(B) an outside influence was improperly brought to bear on any juror; or  

(C) a mistake was made in entering the verdict on the verdict form.

Long-time readers of this blog will note that I've written on the issue several times, including in this post about the prosecution of actor Wesley Snipes.

In 2008, the Supreme Court of North Dakota was able to note in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." This, however, is no longer the case, and, if Liptak's article is any indication, the Justices of the Supreme Court seem ready to rule that Rule 606(b) precludes jurors from testifying concerning deliberations to prove that a juror lied during voir dire.

-CM

A Settlement Privilege?: Supreme Court of Appeals of West Virginia Finds Rule 408 Doesn't Create a Settlement Privilege

Similar to its federal counterpart, West Virginia Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim, the liability of a party in a disputed claim, or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim.

So, does Rule 408(a) create a settlement privilege, meaning that a party is not entitled to discovery regarding what happened during settlement negotiations? Let's take a look at the recent opinion of the Supreme Court of Appeals of West Virginia in State ex rel. City of Weirton v. Sims, 2014 WL 4746206 (West Va. 2014).

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WikiTrial: Patent Trial and Appeal Board finds Wikipedia & Webopedia Entries Properly Authenticated In Patent Dispute

Federal Rule of Evidence 901(a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, how does a party authenticate a web page purported to be from Wikipedia or Webopedia? Let's take a look at the recent opinion of the Patent Trial and Appeal Board in SAP America, Inc. v. Lakshmi Arunachalam.

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Allison Larsen on the Colbert Report

For those who missed it, last night, my W&M colleague Alli Larsen discussed a component of her ongoing work on Supreme Court factfinding, and particulaly its practice of pulling dubious facts from amicus briefs on … the Colbert Report! 

Although the coverage focuses on Supreme Court practice, to my mind this work brings a fresh perspective to the long forgotten Evidence-related debate about the proper contours and boundaries of judicial notice of “legislative” facts.

Here is a SSRN link to her forthcoming article, The Trouble with Amicus Facts

Here is a link to the Colbert Report segment

Here is a link to coverage in the NY Times

Fascinating stuff!