Fun with Citations

Spotted this one in the footnotes of Mueller and Kirkpatrick’s Evidence treatise:

See Bates v. Newmann, 121 Cal. App. 2d 800, 264 P.2d 197, 201 (1954) (trial court properly refused plaintiff’s offer to demonstrate to jury his ability to hold an erection).

Now, that’s pretty interesting. But one of the things you pick up between the lines here in law school is never to trust someone else’s summary of a case. So I looked it up, and lo — here is the relevant passage from the opinion:

Third: Did the trial court err in refusing to receive in evidence as part of plaintiff’s rebuttal two color slides of the plaintiff’s penis in erection, which slides had been in the possion of plaintiff during plaintiff’s case in chief?

No. Plaintiff urges that such slides were admissible upon the theory that they were proper rebuttal of the testimony of Doctors Crane and Zukor, stating in his brief:

Until this testimony (Crane and Zukor) came in on defendant’s case, the plaintiff had nothing to rebut in connection with the question of the downward slant of his penis upon erection and the inability by reason thereof to have normal intercourse, and the effect of the abdominal apron, if any, on the penis in erection. The necessity to rebut such testimony came about at the close of defendant’s case.

In advancing this argument plaintiff acknowledges the testimony of his own witness, Dr. Sloan, on cross-examination wherein he stated that it would be impossible for plaintiff to observe his genitals when standing up due to the fatty abdominal apron. Without objection Dr. Sloan stated that he examined plaintiff and his notes revealed the following:

Patient in the office. Examination of the penis shows complete healing and the patient has more shaft exposed than he ever had available for intercourse before surgery. Whether his personal anatomical conformation will permit his insertion of penis for intercourse is a doubtful matter to me. The size of his abdomen most likely would prevent this accomplishment.

Dr. Sloan further testified:

“The Court: … Do you mean the position of the abdomen was such that it would rest on the penis when erect, if he were standing?

“The Witness: There is no speculation in my mind about that. The weight of the fat apron of the abdomen would depress the erect penis in a downward direction.”

The foregoing testimony was received during the presentation of plaintiff’s case in chief. Therefore there was evidence prior to the testimony of the two defense witnesses, Doctors Zukor and Crane, relative to the inability of plaintiff to have intercourse due to his abdominal apron.

The law is established that one who has the affirmative of an issue may not reserve a portion of his evidence until an opposite party has exhausted his evidence to negative that offered in the first instance. If he does so the court may refuse to allow him to introduce additional evidence on the subject after defendant rests. ( Lipman v. Ashburn, 106 Cal.App.2d 616, 620.)

There is likewise no merit in plaintiff’s contention that the trial court erred in refusing plaintiff the right to demonstrate to the jury his ability to sustain an erection. Such evidence was merely cumulative of evidence previously received. It is within the discretion of the trial court whether or not to receive cumulative evidence. ( Code Civ. Proc., � 2044; Kalmus v. Kalmus, 103 Cal.App.2d 405, 423 (hearing denied by the Supreme Court); Moore v. Marshall, 41 Cal.App.2d 490, 494.)

Now, the point for which M&K cite this case is the “subject to decorum and decency” piece of:

Courts are particularly likely to allow displays of real evidence such as physical injuries, wounds, scars, tattoos, and other relevant physical attributes, subject to standards of decorum and decency.”

Thus, the parenthetical in the citation is misleading in two completely opposite ways. On the one hand, the legal rationale for excluding the display was not because it offended notions of “decorum and decency” but because it was an unnecessary repetition of evidence already available. Citing the case for “decorum and decency” concerns seems to involve some measure of guesswork about the court’s “real” reason, rather than its stated one.

On the other hand, the facts of the case—think of that “fat apron of the abdomen”—are even worse for “decorum and decency” than M&K’s bald citation would suggest.