By Alexander Schmidt1, Law Clerk, and The Honorable John P. Gustafson, United States Bankruptcy Court for the Northern District of Ohio (Toledo)
You have never heard – or seen – the Monster Mash. What have you heard, is a song ABOUT the Monster Mash.
Let that sink in for a minute.
Inevitably, that leads to the obvious question: What facts could we actually PROVE about the Monster Mash, in a federal court?2
Because…well, because there wouldn’t be an article if that wasn’t the question….
Without limiting the inquiry to a specific lawsuit where the Monster Mash might be in issue, facts to be proven might include: How do we know if it is a dance, or a song, or both? Keeping questions like that in mind is important because the purpose behind the offering of evidence is a key component of determining whether that evidence is admissible. That’s why proving whether the Monster Mash is a song, dance, or some mix of the two is a relatively easier undertaking than attempting to prove that anything described in the Monster Mash actually occurred!3
1. Personal Knowledge Under FRE 602
Should a party in federal court decide to call the Frankenstein-esque doctor-narrator to testify that he witnessed the events at the time the Monster Mash arose, they would likely not run into a problem so long as he sticks to describing what he personally saw. Given that the doctor claims that his eyes beheld the “eerie sight” of his monster rising from the slab and “mashing”, a federal court would find Federal Rule of Evidence 602’s personal knowledge requirement satisfied so long as foundational evidence is introduced in support of the good doctor personally witnessing his monster’s animation and subsequent dancing. See, Fed. R. Evid. 602 (“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.”). Rule 602’s evidentiary threshold is low, and the good doctor’s testimony itself can serve as the evidentiary basis for its admission as personal knowledge. Id. (“Evidence to prove personal knowledge may consist of the witness’s own testimony.”).
While the good doctor (who we later learn is named “Boris”) claims that the Mash “caught on in a flash,” a party in federal court would likely have a hard time getting that statement and its counterparts admitted into evidence under Fed. R. Evid. 602. Though the doctor claims, for example, that “[t]he ghouls all came from their humble abodes…[t]o get a jolt from my electrodes,” Boris does not say how he knows where they came from, nor does he explain how he knows what the ghouls intended with their attendance at the Monster Mash. Without more, an objection based upon a lack of proper foundation would probably be sustained.
2. Rule Against Hearsay
At one point in the Monster Mash, Boris the doctor recalls that Dracula, apparently upset that his favorite dance had not caught on, complains: “Whatever happened to my Transylvania Twist?” A litigant could not count on getting Boris’ testimony regarding Dracula’s statement regarding the relative popularity of the two defunct-y dances admitted as evidence in federal court. His view that the Transylvania Twist had somehow lost popularity would be “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c).
Of course, if there were a reason why Dracula would want the “Transylvania Twist” buried – say if instead of it being a dance, it was actually a maneuver for exposing a victim’s neck for criminal neck biting, the statement could be admissible as a statement against interest. See, U.S. v. Lozado, 776 F.3d 1119, 1125 (10th Cir. 2015)(“The statement against interest exception to the hearsay rule is based on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.”)(quotation omitted).
Depending on what is at stake, a party may also be able to introduce Dracula’s Transylvania Twist statement into evidence as an “excited utterance” under Fed. R. Evid. 803(2), as it seems that the Twist’s popularity death-spiral has made Dracula agitated, and even somewhat cross. Additionally, if Dracula reacted especially badly to the Transylvania Twist’s poor showing, such as by committing some heinous vampiric offense during the Mash’s aftermath, his statement could come in as a showing of his then-existing state of mind under Fed. R. Evid. 803(3).
As mentioned above, the purpose for which a statement is being offered is an important consideration. Were a party to offer Boris’ relay of Dracula’s statement for other purposes, such as for the purpose of showing that Dracula had a motive of revenge relative to the Mashers who did not dance the Twist as Dracula would have liked, the hearsay rules would not come into play because only statements offered in evidence to prove the truth of the matter asserted are hearsay within the meaning of the Federal Rules. See, Consol. Credit Agency v. Equifax, Inc., 2005 WL 6218038, 2005 Bankr. LEXIS 46851 (C.D. Cal. January 26, 2005)(describing the motive exception to the hearsay rules).
To make matters even more complicated, unless Boris himself is made available as a declarant, Boris’ recollection of Dracula’s statement, in the form of song lyrics being offered to prove that the Transylvania Twist did not catch on (the truth of the matter asserted), is a case of double hearsay – Boris’ statement containing Dracula’s lamentation that his favorite dance was not on display at the Mash is first level hearsay, and then the song lyrics purporting to be Boris’ statement regarding Dracula’s lamentation would be second level hearsay, or “hearsay within hearsay.” Unless the offering party can make Boris himself (or Dracula) available to testify, or otherwise authenticate the song lyrics via an exception like the “ancient documents” rule discussed below, Dracula’s statement would likely be inadmissible.
3. Getting The Lyrics Of The Monster Mash Admitted Into Evidence
The Monster Mash was written by singer Bobby “Boris” Pickett and Lenny Capizzi, and released in 1962. Thus, the written lyrics, and even videos of the performances of Monster Mash, could qualify as “ancient documents” under Fed. R. Evid. 803(16), which applies to documents “prepared before January 1, 1998”. Under this Rule, the authenticity of the lyrics (or the video) would have to be established, but assuming that was accomplished, objections based on hearsay would only be relevant in terms of the court exercising its discretion to allow or exclude the evidence under Fed. R. Evid. 403 (otherwise relevant and admissible evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).
That said, courts seem to have different approaches to the “hearsay in an ancient document” problem, even within the same circuit! Compare, Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 579-580 (6th Cir. 2013)(deciding the weight to be given ancient document evidence based, in part, on hearsay is for the jury), with, Parker v. Winwood, ___ F.3d ___, 2019 WL 4437852, 2019 U.S. App. LEXIS 27902 (6th Cir. Sept. 17, 2019)(upholding the exclusion of evidence where a document itself was admissible as an ancient document, but specific statements contained within said document were inadmissible hearsay). It would appear that Brumley and Winwood are at odds with one another, though the circumstances surrounding the disputed evidence in Brumley supported its reliability, whereas the disputed evidence in Winwood consisted of decades-old interviews unsupported by any indication of their reliability. In both cases, the reliability of the ancient document evidence in question was an important consideration.
Alternatively, the federal court hearing this ghoulish evidence hypothetical may be moved, either on its own or by a litigant, to take judicial notice of the Monster Mash and its lyrical contents under Fed. R. Evid. 201. So long as the fact in question “is not subject to reasonable dispute because it…is generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned,” a court may take judicial notice of it. Fed. R. Evid. 201(b). Which begs the question, what fact is the court taking notice of with reference to the Monster Mash and its lyrics? If a party is asking solely that the court take notice of the song and its lyrics as evidence that the song exists and occupies a place of cultural significance, judicial notice under Fed. R. Evid. 201(b) may be a good fit, at least under the rule’s first prong.
A more difficult issue arises if a party asks for judicial notice of something more specific, such as whether the Monster Mash itself actually occurred or whether it was as popular a dance/song among the undead as Boris insists. A party could argue, for example, that it is generally accepted among the local population that the Monster Mash occurred and was a “graveyard smash,” and that, accordingly, the court should take judicial notice of the occurrence of the event underlying the song and the popularity of its attendant dance. Of course, determining what “is generally known within the trial court’s jurisdiction” can be tricky, and if one happens to be litigating in a corner of the United States where the Monster Mash song is not well known, asking for judicial notice may be a grave mistake.
4. The Boasts Regarding The Popularity Of The Monster Mash May Be Considered “Puffery”.
Taken as a whole, “Monster Mash” appears to be attempting to convince the listener that the dance, or the song, or both, were a “graveyard smash”. Courts have refused to take judicial notice of statements on a corporate website when they are being used as a marketing tool. See, Vicaulic Co. v. Tieman, 499 F.3d 227, 236 (3rd Cir. 2007). To the extent that this type of aggrandizement of the Monster Mash crosses over into mere “puffery”, its evidentiary value may be diminished. Statements like “it caught on in a flash” and that it was a “graveyard smash” lack precision and may be of limited use in establishing a precise timeline and metric for the Monster Mash’s rise in popularity.
 Blame for primary authorship of this article was determined by a negotiated coin flip. The Motion to put “negotiated” in quotes was denied.
 This article is intended as a scholarly discussion of the evidentiary issues associated with The Monster Mash. You should retain competent, independent counsel if you are, for example, involved in Mash Tort litigation.
 Of necessity, this article will not delve into the more fundamental issue of whether the statements of “monsters” are subject to the same evidentiary rules that apply to other declarants. For example, if one seeks to introduce a statement made by the Werewolf through something other than direct testimony, is that Hearsay or Weresay?
Alexander E. Schmidt is currently serving as law clerk to the Honorable John P. Gustafson of the U.S. Bankruptcy Court for the Northern District of Ohio. Before graduating from Michigan State University College of Law in May of ’17, Alex interned for both the Michigan Attorney General’s Health, Education, and Family Services Division and the Social Security Administration’s Office of the General Counsel in Chicago. His career interests include public finance, government benefits programs, and the state/federal divide.
John P. Gustafson was appointed United States Bankruptcy Judge for the Northern District of Ohio in April 2014. In his former life, he was a bankruptcy law clerk, an associate and partner in a law firm representing both debtors and creditors, a solo bankruptcy practitioner representing debtors, banks and trustees, the staff attorney to a Chapter 13 trustee, and since October 1, 2007 he has been the Standing Chapter 13 Trustee for the Northern District of Ohio, Western Division. Judge Gustafson regularly writes and speaks on a variety bankruptcy issues.