The Two What?

This year marks the 20th anniversary of the release of one of the greatest legal comedies, My Cousin Vinny and some websites are paying homage to the classic, in particular because it touches on so many aspects of law and lawyers (h/t: ATL).  Even though I love the movie, I've been reluctant to take the time to write a post about some silly nonesense while tying it to a movie about the Deep South starring the father of the bride of the Pauley Shore classic Son-in-Law, the kid from Karate Kid, and the monster from The Munsters.  But in the last 24 hours, these three separate items reminded me of the movie:

I shot the clerk?

Orin Kerr blegged yesterday about what material is helpful for learning Evidence Law.  Well number one on that list is a moped riding law professor with chiseled hair.  After that, My Cousin Vinny was the single-best source I relied upon to learn evidence.  Even to this day, I often think of the movie when dealing with evidentiary issues.  Why?  Because the movie touches on nearly every aspect of Evidence Law.  That's why I would encourage both teachers and students of Evidence Law to watch the movie ad nauseam.  It comes in handy.  If there is one subject that isn't dealt with adequately by the movie, it's probably the hearsay rule.  Even then, if you're an evidence nerd, you probably noticed the use of the opposing party statement exception from the definition of hearsay when the Sheriff testifies about interrogating the younger Gambini: 

Sheriff Farley:  "I asked him if he did it.  And he said, 'I shot the clerk.' I asked him again.  And again he said, 'I shot the clerk.'"

If only the FRE addressed Brooklyn-speak.  But in all seriousness, if you become a litigator, particularly in larger matters, you will almost certainly encounter damaging e-mails that the other side claims to have been written in jest or as sarcasm or satire, etc.  Don't be shocked if the deponent looks at the damning e-mail and says, "Yeah I wrote that, but I was clearly joking.  See the smiley face there?"

And what is this a picture of?

Speaking of depositions, co-blogger Patrick complained yesterday about law school not teaching the importance of laying a proper foundation.  Putting aside the rather weighty question of how well law school prepares young graduates to actually practice law (which is actually the subject of an entire scene in the movie), all fans of the movie know that before Vinny could crack the case in open court, he had to lay a proper foundation for the key photo. 

Vinny:  Your Honor, this is a picture taken by my fiancee outside the Sack O' Suds. Do we agree on this?
Prosecutor: Yeah.

***
Vinny: Miss Vito, did you take this picture?
Ms. Vito: You know I did.
Vinny: And what is this picture of?
Ms. Vito: You know what it's of.

No matter what case, no matter what the circumstances, I always think of "You know what it's of" to remind myself that every exhibit needs a proper foundation. And yes, the above dialogue can be sufficient foundation given the other side did not raise any objections that the photo in fact depicted the tire marks outside the crime scene. 

It's called disclosure, you dickhead!

Today, the DOJ released an extensive report on prosecutor misconduct in the prosecution of the late-Senator Ted Stevens.  Specifically, prosecutors failed to turn over exculpatory evidence in their possession.  The BLT has extensive coverage of the issue.  It's likely that this kind of crap happens far too frequently, but never gain the publicity they do when the defendant is a high-profile politician.  So, naturally, because the misconduct affected one of their own, Congress is now ready to act.  Whatever the motivations that spurred Congress to act, I hope the bill introduced by Sen. Murkowski will gain some steam and become law. It's a sad state of affairs that discovery violations are the wild wild west in the criminal arena, but relatively well-governed in civil matters.

Of course, getting a glimpse at the prosecutor's files plays out a bit more smoothly in the case of Vinny.

Ms. Vito: You stole his files?
Vinny:  I didn't steal his files.  Listen to this.  I'm just ready to finesse him.  I'm starting to finesse him.  I got him goin'.  He offers to have his secretary copy everything for me.
Ms. Vito:  Terrific.  You're a hell of a bonder.
Vinny:  What's this?  You readin' this book? 
Ms. Vito:  Yeah.
Vinny:  Do me a favor.  Okay?  Don't read this book.  Okay?  Thank you very much.
Ms. Vito:  Alright. Don't you wanna know WHY Trotter gave you his files?
Vinny:  I told you why already.
Ms. Vito:  He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.
Vinny:  [Stare]
Ms. Vito:  They didn't teach you that in law school either?

The answer to Ms. Vito's question appears to be no in the case of the AUSAs prosecuting Ted Stevens, the AUSAs prosecuting Broadcom executives in the securities backdating trial, the AUSAs prosecuting Lindsey Manufacturing and its executives for violation of the FCPA, just to name a few.