Using Movies As Evidence

While introducing portions of a movie can raise concerns about unfair prejudice under FRE 403, the Sixth Circuit recently reviewed this issue in a fraud case and concluded that the movie The Boiler Room was properly admitted based on the facts of the case, in United States v. Smith, _ F.3d _ (6th Cir. April 15, 2014) (No. 10-6136)

Normally, evidence is limited to testimony, exhibits or stipulations admitted under the FRE. The jury is normally told that external matters are not evidence and may not be considered. See, e.g., Ninth Circuit Model Criminal Jury Instructions §§ 1.3, 1.4 (What Is and Is Not Evidence) (2010 Edition). A recent Sixth Circuit case considered the admissibility of a movie at trial.

Trial Court Proceedings: Training Connection Established

In the case, two brothers were charged with mail fraud based on fraudulent investments involving speculative resource drilling in several states. They provided investors with misleading information packets and misleading sales pitches by their representatives. Employees of the defendant's compay, Target Oil, used three ways to contact potential investors: "(1) the potential investors were first contacted from lead sheets, (2) they were
subsequently mailed information packets, and (3) they were then pressured by company 'closers' to invest in oil and gas drilling programs." Investigators learned that the employees were trained about how to close the deal. As the circuit summarized, "At least one employee [Irwin] was shown the movie The Boiler Room as training material. The Boiler Room depicts a fictional New York brokerage firm that used high-pressure sales techniques to commit investment fraud. Another salesman said that [defendant] Michael Smith made copies of The Boiler Room and distributed the movie to various employees." At trial, cooperating co-defendant Irwin testified for the government and explained the training methods he received. He testified that as part of the training, defendant Michael "made copies of The Boiler Room" and "passed them out to everybody." Over defense objection, the trial court permitted portions of the movie to be played at trial. Another witness testified "that he too was shown The Boiler Room as training to be a salesman." Smith, _ F.3d at _. The jury convicted the defendants. On appeal, among other issues, they challenged the showing of the movie to the jury as unfairly prejudicial.

Sixth Circuit Review: Noting "Direct Connections" To The Fraud Scheme

The Sixth Circuit affirmed the admission of the portions of the movie at trial. The circuit noted some distinctions between the movie and the facts of the case:

True enough, there are differences between the fictional investment firm in The Boiler Room and Target Oil. The film clips portrayed successful salesmen being rewarded with prostitutes, depicted supervisors calling federal enforcement officers “chimps,” and showed salesmen being explicitly instructed to lie to investors. There is no evidence in the record to suggest that Target Oil did any of these things, although Michael Smith did admit to Williams that Target Oil “operate[d] in the grey area.”

Smith, _ F.3d at _. Nonetheless, the circuit found the movie evidence was admissible based on "direct connections between The Boiler Room and the fraud committed by Michael and Christopher Smith." The evidence established that the movie was used "for training and motivational purposes." This use confirmed that the defendant "at least somewhat 'adopted or shared' the views expressed in the movie." Based on the trial testimony, the circuit concluded that "the core conduct shown in the movie, although not identical to what happened at Target Oil," was "at least probative of knowledge and intent to defraud." Smith, _ F.3d at _ (citation omitted).

While noting concerns that could arise in introducing movie evidence, the circuit distinguished an Eleventh Circuit case. In a drug prosecution, the circuit found that the trial court erred in admitting a rap video which was produced by the defendant’s recording studio and depicted "the rap artist Tone Flowa singing a rap song that contained explicit lyrics dealing with drugs, sex, profanity, degradation of women, firearms, and threats of violence against the police and public." According to the circuit, "the substance of the rap video was heavily prejudicial" based on the lyrics which "contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle." Ultimately, the circuit concluded that the error was harmless based on other evidence. See United States v. Gamory, 635 F.3d 480, 492-93 (11th Cir. 2011).

Conclusion

The Smith case shows the risks in admitting movie or video evidence at trial. The admissibility will turn on the "direct connections" made between the movie and facts of the case. Another factor will be the similarities between the movie and facts. The greater the dissimilarities, the more likely the movie may be found to be irrelevant or unfairly prejudicial.

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