Mechanical Witness: A History of Motion Picture Evidence in U.S. Courts
Schwartz moves from the earliest employment of film in the courts of the s to the notious Rodney Kind video, revealing how the courts have developed a reliance on film and video technologies and contributed to the growing influence of visual media as a dominant mode of knowledge formation.
At the same time, film and video in juridical contexts has developed a distinct theoretical legacy. The particular qualities of film as evidence both resonate with and contradict existing scholarship-focusing on economic, social, or aesthetic factors-which hitherto has defined film's status and cultural contribution.
In the context of a trial, the possible meanings of a film change from its meanings when shown in a movie theater or broadcast on television, yet the public and cinema scholars tend to assume that the two are the same. Mechanical Witness demonstrates that we must understand evidentiary film and video's institutional specificity if we are to understand the full effects of motion picture technologies on our culture. There is no federal counterpart to this rule.
In a civil case, and proceedings not otherwise provided for by statute or by these rules, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. The revised rule is substantively the same as the current state rule.
There is no intent to change any result in any ruling on evidence admissibility. 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. The modification reflects the requirements of State v. McGinnis , W. Consistent with the federal rule, the "rape shield" provisions formerly in Rule a are moved to a new Rule The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:. But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Mechanical Witness - Paperback - Louis-Georges Schwartz - Oxford University Press
In addition to stylistic changes, the rule makes two substantive changes. First, the words "injury or harm," found in the first sentence of the rule, were substituted for the word "event" in line 3 of the current state rule. Second, the rule has two new express grounds for exclusion: "a defect in a product or its design" and "a need for a warning or instruction. Rule a does not allow the admission of evidence "to impeach by a prior inconsistent statement or a contradiction.
Rule a 1 contains language found in the beginning of the first sentence of the current state rule, though worded slightly differently. Rule a 2 contains language, with slight changes, that is found in the second sentence of the current state rule.
Rule b contains the last two sentences of the current state rule. The federal rule only contains the last sentence. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or, if controverted, proving agency, ownership, or control.
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This evidence may be admissible against a party that places in controversy the issues of the party's poverty, inability to pay, or financial status. The third sentence is new and is not contained in the federal rule. It clarifies that evidence of liability insurance may be admissible if an opposing party presents evidence of inability to pay or places the party's financial status at issue in a trial. The rule supersedes the rape shield statute, W.
The rule was taken verbatim from the federal rules with two exceptions, which are intended to incorporate terms that are contained in West Virginia's current rape shield laws. The phrase "opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct" was retained in Rule a 3 and b 1 C , and the phrase "mentally defective, or mentally incapacitated" was retained in Rule a 3. Rule a 3 and b 1 C refer to "reputation and opinion evidence," but Federal Rule does not make reference to "reputation and opinion evidence.
See PL 95—, HR References to "reputation and opinion evidence" in the original rule were removed in a amendment. However, the Advisory Committee Notes to the amendment make clear that the current version of Federal Rule still limits evidence to that "of specific instances of sexual behavior in recognition of the limited probative value and dubious reliability of evidence of reputation or evidence in the form of an opinion. The amendment to Federal Rule completely revised the rule. The intended effects of the revision are set out in the federal commentary, in part, as follows:.
Rule has been revised to diminish some of the confusion engendered by the original rule and to expand the protection afforded alleged victims of sexual misconduct.
CINEMA HOSTIS: LECTURE BY LOUIS-GEORGES SCHWARTZ
Rule applies to both civil and criminal proceedings. The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. Rule seeks to achieve these objectives by barring evidence relating to the alleged victim's sexual behavior or alleged sexual predisposition, whether offered as substantive evidence of for impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim.
The revised rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation. Rule extends to "pattern" witnesses in both criminal and civil cases whose testimony about other instances of sexual misconduct by the person accused is otherwise admissible.
When the case does not involve alleged sexual misconduct, evidence relating to a third-party witness' alleged sexual activities is not within the ambit of Rule The witness will, however, be protected by other rules such as Rules and , as well as Rule The terminology "alleged victim" is used because there will frequently be a factual dispute as to whether sexual misconduct occurred.
It does not connote any requirement that the misconduct be alleged in the pleadings. Rule does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a "victim of alleged sexual misconduct. Rule will, however, apply in a Title VII action in which the plaintiff has alleged sexual harassment. The reference to a person "accused" is also used in a non-technical sense. There is no requirement that there be a criminal charge pending against the person or even that the misconduct would constitute a criminal offense.
Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule However, the evidence is subject to the requirements of Rule The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work product protection.
Subsection c 2 of the federal rule has been eliminated, because it is not needed under West Virginia law. Under West Virginia law, attorney-client privilege determinations are governed by the law of the forum. See Kessel v. Leavitt, W.
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Morrison, W. The substance of subsection c 1 of the federal rule has been retained to protect a party in a West Virginia proceeding who made an inadvertent disclosure in another jurisdiction. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule The rule is substantively the same as the current state rule but is organized differently for greater clarity. Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience. An interpreter must be qualified and must give an oath or affirmation to make a true translation.
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. The federal counterpart is slightly different. The federal counterpart provides that a juror "may not" testify; whereas the state rule provides that a juror "shall not" testify. The federal rule also provides that a court "must give a party an opportunity to object" to a juror testifying; whereas the state rule indicates the issue is preserved without an objection. To avoid the misleading impression that a trial court has discretion to allow a juror to testify at trial, the existing provision remains in the rule.
Rule b was taken verbatim from its federal counterpart. Except for Rule b 2 C , the revised Rule b is substantively the same as the current rule, but is organized differently for greater clarity. Rule b 2 C was added to the federal rule in This provision allows a juror to testify that a mistake was made in entering the verdict.