Friday, April 27, 2018

The NFL vs. the federal courts on review of factual issues

The 25 April 2018 issue of USA Today had a page one story on an immigration
case involving a Mexican news reporter. What caught the attention of IPBiz
was text toward the end, taking issue with the "standard of review" to be applied
in the appeal, that of "not clearly erroneous." What followed took an interesting
turn: "This is not an NFL game, where you need overwhelming evidence to overturn a bad

**The Official NFL rules previously contained the text:

Article 3 Reviews by Referee.

All Replay Reviews will be conducted by the Referee on a field-level monitor
after consultation with the covering official(s), prior to review. A decision will be reversed only when the Referee has indisputable visual evidence available to him that warrants the change.

There is also a note:

Note 2: If the Referee does not have indisputable visual evidence as to
which player recovered the loose ball, or that the ball
went out of bounds, the ruling on the field will stand.


**But the "indisputable" language was replaced, and one now has:


All Replay Reviews will be conducted by a designated member of the Officiating department at the League office. During the review, the designee shall consult with the Referee, who will have access to a hand-held, field-level device. A decision will be reversed only when there is clear and obvious visual evidence available that warrants the change. Prior to consulting with the Officiating department designee, the Referee will discuss the play with the covering official(s) to gather any information that may be pertinent to the review.

[ The word "obvious" appears 12 times in the current NFL rules. ]


One notes that both versions of the NFL Rules speak of "visual evidence available" and not about "how" the reviewing official must view that evidence. The "evidence" warrants the change, without a statement that the reviewing official believes a change is warranted because a mistake has been made. "Clear and obvious" to whom?

In the legal realm, review of issues of fact are sometimes addressed
under the "clear error" standard" [from the CAFC Bayer case]:

"A finding is 'clearly erroneous' when[,] although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." United States v. U.S. Gypsum Co.,
333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948).

The "plain error" standard can invoke the text "clear and obvious" [from US v Hall, 152 F.3d 381 (CA5 1998)]:

Under the plain error standard, we may reverse only if "(1) there was error (2) that was clear and obvious and (3) that affected [Hall's] substantial rights." United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997), cert. denied, 139 L. Ed. 2d 756, 118 S. Ct. 857 (1998); see also United States v. Olano, 507 U.S. 725, 731-36, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993). "Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the 'affecting substantial rights' prong of [the plain error inquiry]." Olano, 507 U.S. at 735. Even [page 403] when these criteria are satisfied, we should exercise our discretion to reverse only if the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 732 (internal quotation marks and brackets omitted); see also Dupre, 117 F.3d at 817.


Hall has cited no cases in which this court's evaluation of evidentiary rulings hinged upon the jury's actual reactions to the purportedly inadmissible evidence.

Within the Third Circuit [ from Walden v. Georgia-Pacific Corp., 126 F.3d 506 (CA3 1997) ]:

In United States v. Olano, 507 U.S. 725, 732-34, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993), the Court set forth three requirements for a plain error challenge to succeed. First, there must be an actual error -- a deviation from or violation of a legal rule. Second, the error must be plain; that is, the error must be clear and obvious under current law. Finally, the error must affect substantial rights. In other words, the error must be prejudicial and must have affected the outcome of the district court proceedings. See also Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure ยง 5043 (1996)(error must produce "substantial injustice" denying the appellant a fair trial).

Interesting text from Keim v. Big Bass, Inc., 949 S.W.2d 122 :

Plaintiff claims the lack of particularity in the motion leaves it defective. However, this court has held that if the basis for the ruling is clear and obvious to all, the ruling is not per se erroneous. Mathes by and through Mathes v. Nolan, 904 S.W.2d 353, 355 (Mo.App.E.D. 1995).


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