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Category Archives: Rule 403

Can Plaintiff Defeat Defendant’s Motion In Limine To Exclude Facebook Evidence?

25 Sunday Jan 2015

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Rule 403, Social Media

≈ Comments Off on Can Plaintiff Defeat Defendant’s Motion In Limine To Exclude Facebook Evidence?

Tags

Admissibility, Bow Tie Law’s Blog, Evidence, Facebook, Joshua Gilliland, Motion in Limine, Social media

Swabbing the Decks of Admissibility, by Joshua Gilliland, Esq., Bow Tie Law’s Blog

http://tinyurl.com/koeyrb5

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in ‘painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.’ Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts ‘probably [were] not giving the employers a good impression,’ was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible? . . . .

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8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by Celia C. Elwell, RP in 8th Circuit Court of Appeals, Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

≈ Comments Off on 8th Circuit Decision Raises Evidence Questions.

Tags

Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Abuse, Sexual Assault, Speker evidence

Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger

 http://perma.cc/V3UM-C98B

[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .

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