Would it be / have been unhelpful for Hans Niemann to bring up Magnus Carlsen&#39;s own cheating?
<p>This is about the <a href="https://en.wikipedia.org/wiki/Carlsen%E2%80%93Niemann_controversy" rel="nofollow noreferrer">Carlsen–Niemann controversy</a> asked about previously:</p>
<ol>
<li><p><a href="https://law.stackexchange.com/questions/86939/why-dont-courts-punish-time-wasting-tactics">Why don&#39;t courts punish time-wasting tactics?</a></p>
</li>
<li><p><a href="https://law.stackexchange.com/questions/85546/how-can-magnus-carlsen-a-norwegian-be-sued-for-defamation-by-hans-niemann-in-m">How can Magnus Carlsen, a Norwegian, be sued for defamation by Hans Niemann in Missouri?</a></p>
</li>
<li><p>Update: <a href="https://law.stackexchange.com/questions/88985">Are (evidence of) rumours of a defendant&#39;s racism unhelpful in a defamation case involving accusations of cheating?</a></p>
</li>
</ol>
<hr />
<p>Unlike Magnus, Hans never (provably)</p>
<ol>
<li><p>cheated OTB (over the board),</p>
</li>
<li><p>cheated as an adult or</p>
</li>
<li><p>cheated against a minor.</p>
</li>
</ol>
<p>In all of the following, Magnus cheated as an adult.</p>
<ol>
<li><p>Magnus cheated online twice against GM <a href="https://www.youtube.com/watch?v=vLvN3aL_gdE" rel="nofollow noreferrer">Danya Naroditsky in lichess</a>. 1 was in 2021 by getting help from SGM David Howell (aka GM <a href="https://reddit.com/xlyhq5" rel="nofollow noreferrer">HansSchmidt</a>) on lichess.</p>
</li>
<li><p>Magnus cheated OTB against then-minor 16yo prodigy Alireza Firouzja in 2019 blitz world chess championship</p>
<ul>
<li>See <a href="https://www.youtube.com/watch?v=lmUgUetQBk8&amp;t=498s" rel="nofollow noreferrer">here</a> 8:18 - 8:22. Initially, Magnus talks on own time after Alireza moves. That's fine. But later after moving and then punching clock Magnus still continues to make noise. It is talked more about <a href="https://www.youtube.com/watch?v=YPysTEW0YZU" rel="nofollow noreferrer">there</a>. Poor kid. Alireza even wrote this appeal:</li>
</ul>
</li>
</ol>
<blockquote>
<p><a href="https://i.stack.imgur.com/Tzwk1.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/Tzwk1.png" alt="enter image description here" /></a></p>
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<p>It was denied because Alireza did not call arbiter during the game. Probably kids are too afraid to call arbiters on world chess champions like how <a href="https://www.youtube.com/watch?v=j5ut_uytScA" rel="nofollow noreferrer">Judit Polgar was afraid to call an arbiter</a> on Garry Kasparov <a href="https://www.youtube.com/watch?v=5M5RE1M3uY0" rel="nofollow noreferrer">in 1994</a>.</p>
<ol start="3">
<li>Magnus cheated OTB against SGM Ian Nepomniachtchi in the 2021 world chess championship by touching a piece without saying 'adjust' and then not moving it. Magnus definitely intended to move the piece according to SGM <a href="https://www.youtube.com/watch?v=9hxbpj42DkE" rel="nofollow noreferrer">Hikaru Nakamura</a> (yet strangely <a href="https://reddit.com/z7ae0s" rel="nofollow noreferrer">co-defendant of Magnus</a> in this lawsuit. Traitor). Unfortunately, Nepo was <a href="https://chess.stackexchange.com/questions/18779/touch-move-rule-when-the-opponent-is-not-present-on-the-board">not in the room and so could not claim</a> a touch move rule violation against Magnus.</li>
</ol>
<blockquote>
<p><a href="https://twitter.com/Patralgan_/status/1468364867996377092" rel="nofollow noreferrer">As per FIDE rules, unless you announce adjustment, you MUST move the piece you've touched. Of course it's the responsibility of the opponent to claim it, but it's a violation of the rules nonetheless. This is why I view it firmly as a fair play issue.</a></p>
</blockquote>
<ol start="4">
<li>'<a href="https://www.reddit.com/r/chess/comments/yajal1/magnus_carlsen_admitted_to_breaking_chesscoms/itd2h36/?context=8&amp;depth=9" rel="nofollow noreferrer">Magnus Carlsen admitted to breaking Chess.com's fair play rules &quot;a lot&quot; in a Reddit AMA</a>'</li>
</ol>
<blockquote>
<p><a href="https://i.stack.imgur.com/zVORV.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/zVORV.png" alt="enter image description here" /></a></p>
</blockquote>
<h1>Questions:</h1>
<ol>
<li>Would it have been unhelpful for Hans to have brought this up in the lawsuit? (Not sure of my grammar?)</li>
<li>Would it be unhelpful for Hans to bring this up later on eg in depositions or actual trial?</li>
</ol>
<p><a href="https://twitter.com/BMB_Esq/status/1584282331824607232" rel="nofollow noreferrer">Response from a lawyer</a> (Brodie Butland aka BMB_Esq on twitter - Oct 24, 2022)</p>
<blockquote>
<p>Let’s assume for sake of argument that’s all true. At most it would show that Magnus is a hypocrite. It doesn’t show actual malice as to the specific defamatory statements that the lawsuit is based upon, which was the focus of my analysis.</p>
</blockquote>

<p>Your question is essentially this:</p>
<ul>
<li>consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement)</li>
<li>also consider that B has done X in the past</li>
<li>is it of any relevance to A's defamation suit that B has done X in the past</li>
</ul>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<h3>Evidence must be relevant to a live, material issue</h3>
<p>In order for evidence to be admissible it must be &quot;<a href="https://canlii.ca/t/hx9v4#par107" rel="noreferrer">relevant to a live, material issue in the case</a>&quot; (this is from a dissent, but there is no disagreement about this point).</p>
<h3>Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue</h3>
<p>Defamation is <em>prima facie</em> proven if B's statement was published and if it tended to lower the reputation of A. <strong>The fact that B has done X in the past is irrelevant to this aspect of the analysis</strong>, especially when the defendant is not alleging that they did not say &quot;A did X.&quot;</p>
<h3>Stage 2: Defences - there is a very narrow path for relevance on this issue</h3>
<p>Once defamation is <em>prima facie</em> proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do" rel="noreferrer">fair comment</a>:</p>
<blockquote>
<p>(a)   the comment must be on a matter of public interest;</p>
<p>(b)   the comment must be based on fact;</p>
<p>(c)   the comment, though it can include inferences of fact, must be
recognisable as comment;</p>
<p>(d)   the comment must satisfy the following objective test: could any
[person] honestly express that opinion on the proved facts?</p>
<p>(e)   even though the comment satisfies the objective test the defence
can be defeated if the plaintiff proves that the defendant was
[subjectively] actuated by express malice.</p>
</blockquote>
<p>The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part.</p>
<h3>Conclusion: Evidence that B did X in the past would likely not be relevant</h3>
<p>I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case.</p>

<blockquote>
<p>Would it be / have been unhelpful for Hans Niemann to bring up Magnus Carlsen's own cheating?</p>
</blockquote>
<p>No. Proving someone's history of cheating may be valid for attacking the cheater's <em>credibility</em>, something that a jury ponders as part of its fact-finding (more specifically, when pondering that person's sworn testimony).</p>
<p>The excerpt you posted from Twitter is somewhat inaccurate, or at least debatable. <a href="https://www.law.cornell.edu/rules/fre/rule_404" rel="nofollow noreferrer">FRE 404</a>(b)(1) indicates that the defendant's history of cheating would be inadmissible for proving that the defendant made the defamatory statements. However, FRE 404(b)(2) permits the use of that evidence &quot;<em>for another purpose, such as proving [...] intent, preparation, plan, knowledge, [...] or lack of accident</em>&quot; (Rules of Evidence of other jurisdictions in the US also list <em>method</em> among the permissible purposes). Since these purposes relate to a party's state of mind, they could be relevant whether on the issue of <em>actual malice</em> specifically or on the issue of party's credibility in general.</p>
<p>Not every evidence of prior cheating is necessarily relevant/admissible, though. For instance, Magnus's failure to say &quot;adjust&quot; and his failure to stay quiet during an opponent's time seem <em>a priori</em> irrelevant --and therefore inadmissible-- in a claim of defamation. That is because those types of conduct are unrelated to hurting or tending to hurt a person's good name and reputation by means of defamatory falsehoods.</p>
<blockquote>
<p>Would it be unhelpful for Hans to bring this up later on eg in depositions or actual trial?</p>
</blockquote>
<p>There are procedural constraints on how late in court proceedings evidence can be filed. The purpose of these constraints is to eliminate the &quot;surprise factor&quot;. See the five-factor test in <a href="https://www.leagle.com/decision/2003910318f3d5921852" rel="nofollow noreferrer"><em>Southern States Rack &amp; Fixture v. Sherwin-Williams</em>, 318 F.3d 592, 596 (2003)</a>. Other than that, deciding when to bring up the party's history of cheating is largely a matter of litigation strategy.</p>

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