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Monday, October 06, 2003

Animal testimony

Will Baude at Crescat Sententia (who in turn hat-tipped Jim Leitzel, who blogs Vice Squad) has blogged about a recent AP story (republished in the NYT) about a man who wants to question a parrot in court.  The man's pet parrot accidentally escaped, and he thinks he's tracked down its current possessor, who's resisting the man's efforts to establish his ownership.  The man believes that in court, he can prove his claim by demonstrating that this parrot, like his lost pet, can whistle the "Andy Griffith Theme."

Will's reaction is that his "tentative thought" is that one "shouldn't be allowed to demand that other people bring their parrots into court":

A parrot should be thought of less as a human being (who can be forced to testify) than as a tape recorder, who probably can't in this circumstance. After all, suppose I had my video camera stolen, and then just saw you walking down the street with a camera that looked a lot like mine. Without some further evidence or probable cause or something surely I couldn't just drag you aside and make you play the tape inside for me to see if it was mine, could I?

I'm reminded of an occasion several years ago when I was called to jury duty in one of Harris County's Justice of the Peace (small claims) courts.  While waiting in the courtroom with the others who'd been summoned as prospective jurors that day, I observed a bench trial in another case in which the plaintiff was seeking to replevy (recover possession of) a pet that he claimed had been stolen — in that case, an adolescent chimpanzee.  The defendant claimed that he'd bought the chimp from someone who'd placed a classified newspaper advertisement, so in addition to disputing the plaintiff's original ownership, the defendant claimed to be a "bona fide purchaser for value" whose good-faith purchase extinguished whatever rights the original owner may have had to the property (if not the plaintiff's rights against the thief/seller). 

A 'Bobo look-alike'The plaintiff had served the defendant with a subpoena duces tecum compelling not only the defendant's own appearance at the trial, but also compelling the defendant to bring the chimp to court.  The defendant was seated at his counsel table with the chimp in his arms while the plaintiff testified.  On cross-examination, the defendant's lawyer violated one of the traditional rules of cross-examination by asking an open-ended question:   "So, Mr. Smith!  How can you prove that the chimp was yours to begin with?" 

At which point, the plaintiff looked at the chimp, smiled, and said in a very ordinary tone of voice, "C'mere, Bobo!" 

With a shriek of delight, the chimp instantly pried himself free of the defendant's arms, leapt over the counsel table, raced across the room, bounded over the railing in front of the witness chair, and flung himself into the plaintiff's arms — where the two of them hugged fiercely and began comforting and "grooming" each other while the entire courtroom sat in stunned silence.

The defense lawyer eventually stammered out, "Objection!"

"What's the nature of your objection, counselor?" asked the judge.

"Umm, I object to ... ummm ... the nontestimonial speech of the chimp as being hearsay since he's not subject to meaningful cross-examination!"  At that point, despite ourselves, the judge, I, and every other attorney in the courtroom burst into laughter.

"Overruled!" barked the judge.

The plaintiff then called the defendant to the stand as an adverse (hostile) witness, and proceeded to elicit testimony that the defendant had never gotten the so-called "seller's" name or address; that the seller had used a pager, so the defendant didn't even have a home phone number for him; that the seller neither had nor gave a written bill of sale or other pedigree/title papers; that the seller had no veterinary records for the chimp; that the seller had no "chimp paraphernalia" (clothes, toys, grooming equipment, cage, etc.) to sell along with the chimp; that the seller had insisted on cash; and that the seller had insisted on the handover taking place at a remote roadside rest stop halfway between two towns.

The court wisely ruled that the plaintiff had sufficiently established — via "nontestimonial conduct from the chipanzee" — his prior ownership, and moreover, that the circumstances of the purchase were sufficiently shady that it should have put the defendant on notice that he might be buying a "hot chimp" — meaning that he couldn't qualify as a "bona fide purchaser" who'd given value for the chimp "in good faith." 

"Judgment for the plaintiff!" announced the judge, "You and Bobo are free to go!"  Whereupon Bobo and his owner left the courtroom walking hand-in-hand — and no one present doubted that justice had been done.

Aunt Bee!  Aunt Bee!As for the parrot:   I believe most judges are going to uphold the subpoena duces tecum directing the current custodian to bring the bird to court.  The general standard for whether a plaintiff who's stated a plausible claim can get such compulsory discovery is whether his request is "reasonably calculated to lead to the discovery of admissible evidence."  You don't have to show a probability that in fact the parrot will whistle the "Andy Griffith Theme," just that you have a logical, coherent basis for believing that it might.

As for Will's camcorder hypothetical, when Will shows up in court to argue his motion to quash the subpoena duces tecum demanding that he appear in court and bring his camcorder and tapes for examination, the judge is going to start by asking the opposing party, "What basis do you have to think that this camcorder you claim to have seen is your camcorder?  Where's your sales receipt, your documentation showing the model and serial number?  What basis do you have to connect Mr. Baude to your alleged theft?"  If from the answers it's clear that the plaintiff is just speculating — on the proverbial "fishing trip," fishing around for evidence without any specific basis for believing that admissible evidence will turn up — Will can probably get the subpoena quashed.  But the judge is also likely to say, "So, I understand why you don't want the plaintiff, or me for that matter, scanning through your videotapes. But what's your objection to letting me look at the serial number on your camcorder, Mr. Baude?"  I suspect that serial number will get compared — and if it happens to have been filed off, then the tape may get viewed too.

Appellate courts always say that rulings like this are "committed to the sound discretion of the trial judge."  And part of that is a recognition that trial judges, especially after they've practiced law a while and then been on the bench a while, have good BS detectors.  If a story stinks, if the details don't add up, if someone's flinching and stuttering and downcast eyes suggest a guilty conscience rather than a normal "case of nerves" at having to show up in court, judges are permitted to factor those details into their decisions.  They're permitted, and expected, to balance hardships, to weigh privacy concerns against getting to "the truth," and to do what seems fair and right in the 99.999 percent of situations in which there's no absolute and binding statute or rule or case precedent directly on point.

Now what will be really interesting is this:   When the current possessor of the parrot is obliged to bring the parrot to court, will the plaintiff's lawyer be allowed to "lead his witness" by whistling the first few bars of the "Andy Griffith Theme"?  Or will he be restricted to Lauren Bacall's immortal line to Humphrey Bogart in To Have and Have Not?

Posted by Beldar at 10:56 PM in Humor, Law (2006 & earlier), Trial Lawyer War Stories | Permalink


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