EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, December 18, 2014

The Serial Podcast, Episode 12: My Most Logical Scenarios for the Death of Hae Min Lee

I've done eighteen posts

(hereherehereherehereherehereherehere

hereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee on January 13, 1999. This post is about the twelfth and final episode of Serial"What We Know." The episode is about, you guessed it, what we know, with Koenig noting that "all speculation is equally speculative." Koenig then asks, "So instead of most likely, how about most logical?" Taking that lead, I present to you what I think are the two most logical scenarios, both of which originate from the same starting point.

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December 18, 2014 | Permalink | Comments (6) | TrackBack (0)

Wednesday, December 17, 2014

The Serial Podcast, Episode 12 Preview: I Know Exactly What the Jury Found Beyond a Reasonable Doubt

I've done seventeen posts

(hereherehereherehereherehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is a preview of the twelfth and final episode of Serial. If you look at the Serial Podcast website, there is not a title for the final episode yet, but there is an image: the first page of the verdict sheet from Adnan's trial. From this, I'm guessing that the last episode will ask viewers whether they agree with the jury's decision to find Adnan guilty beyond a reasonable doubt. But guilty of what? From the image, I can pretty confidently conclude that the jury had to reach a particular conclusion about exactly how the crime was committed.

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December 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

The Serial Podcast, Episode 11: Premeditation & Manual Strangulation in Maryland

I've done sixteen posts

(herehereherehereherehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the eleventh episode of the Serial Podcast: "Rumors." This episode deals with rumors about Adnan's character and includes three interviewees using the word "premeditation." 

Many people have asked me how the prosecution proved that Adnan acted with premeditation. I have two responses that I will flesh out in this post: First, the prosecution might not have needed to prove premeditation because there are two/three other ways they could have proven first-degree murder. Second, you might assume that the person who manually strangled Hae only acted with premeditation if he planned the killing days, hours, minutes, or, at a minimum, seconds before the fatal act. You would be wrong.

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December 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

The Serial Podcast, Episode 10: Was There Prosecutorial Misconduct With Jay's Plea Deal?

I've done sixteen posts

(hereherehereherehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the tenth episode of the Serial Podcast: "The Best Defense is a Good Defense." This episode deals with the performance of Adnan's trial counsel: Cristina Gutierrez. This post, however, is mostly concerned with the performance of the prosecutor: Kevin Urick.

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December 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Victim's Text Messages Excluded from Aaron Hernandez Trial; More Support for a New Hearsay Exception?

The Boston Globe reports that a trial court on Friday excluded from evidence the victim’s text messages in the murder prosecution of former NFL star Aaron Hernandez.  From the Globe:

“The texts that Odin Lloyd sent minutes before he was fatally shot cannot be shown to the jury during the first-degree murder trial of former New England Patriot Aaron Hernandez, a judge ruled Friday, dealing a blow to prosecutors....

Minutes before he was shot in the early morning hours of June 17, 2013, Lloyd texted his sister: ‘U saw who I was with ... NFL ... Just so U know.’”

Additional coverage comes from Michael McCann (@McCannSportsLaw) at Sports Illustrated, who has been closely following the case and views this ruling, in concert with others, as a serious problem for prosecutors.

The prosecutors argued that moments before his death, Lloyd was telling his sister he was (or recently had been) with Hernandez ("NFL").

I analyzed the admissibility of the text message exchange between Lloyd and his sister in a blog post this summer, forecasting that the Massachusetts prosecutors would not be able to introduce it into evidence because it was hearsay not falling within any exception - which appears to be the judge's ruling.*

What does this ruling say about the existing hearsay rules in an age of electronic communication?

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December 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 13, 2014

Will the Court Unseal the Grand Jury Records in the Eric Garner Case?

You may have heard that various entities, including the New York Civil Liberties Union, have moved to unseal the entire record of the Eric Garner grand jury proceedings. Here is a copy of the NYCLU's motion. So, what's the likelihood that  the record will be unsealed?

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December 13, 2014 | Permalink | Comments (2) | TrackBack (0)

Friday, December 12, 2014

The Serial Podcast, Episode 9: How the Defense Could Have & Should Have Destroyed the Prosecution During Closing

I've done fifteen posts

(herehereherehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the ninth episode of the Serial Podcast: "To Be Suspected." This episode deals with "[n]ew information...about what maybe didn't happen on January 13, 1999." From that description, you might think that the episode tells us little about errors that defense counsel might have made at Adnan's trial. But, as I will note in this post, the episode might have led me to defense counsel's biggest blunder.

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December 12, 2014 | Permalink | Comments (5) | TrackBack (0)

Thursday, December 11, 2014

The Serial Podcast: My Interview With Vox.Com & More on Adnan's Chances of Success on Appeal

Here's my interview with Libby Nelson with vox.com about Adnan Syed and the likelihood of him succeeding on his current claim that he received the ineffective assistance of counsel at trial: "We asked a legal evidence expert if Serial's Adnan Syed has a chance to get out of prison." In this prior post, I already fleshed out my analysis of why I think Adnan has a pretty good chance of succeeding if the Maryland Court of Special Appeals considers his claim that his trial counsel was ineffective for failing to contact potential alibi witness Asia McClain. So, why did I say in the interview that Adnan has very little chance of succeeding on his claim was ineffective for failing to seek a plea deal despite his repeated requests?

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December 11, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 10, 2014

Federal Advisory Committee’s Electronic Evidence Symposium: Read All About It!

The Advisory Committee for the Federal Rules of Evidence convened a symposium to discuss Electronic Evidence in April 2014.  Materials from this fascinating symposium are now available courtesy of the Fordham Law Review

Symposium on the Challenges of Electronic Evidence  [transcript of symposium]

The Court as Gatekeeper: Preventing Unreliable Pretrial eDiscovery from Jeopardizing a Reliable Fact-Finding Process

                by Daniel K. Gelb

The Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal

                by Hon. Shira A. Scheindlin & Natalie M. Orr

The Case for eHearsay

                by Jeffrey Bellin

Memorandum: Hearsay Exception for Electronic Communications of Recent Perception

                by Daniel J. Capra

December 10, 2014 | Permalink | Comments (0) | TrackBack (0)

The Serial Podcast, Episode 8: Bad Interrogations & Bad Evidence

I've done thirteen posts

(herehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the eighth episode of the Serial Podcast: "The Deal With Jay." This episode deals with Jay, the key witness for the prosecution. In turn, this posts deals with Maryland law regarding the recording of police interrogations and the duty of the police to pursue "bad evidence." 

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December 10, 2014 | Permalink | Comments (3) | TrackBack (0)

Tuesday, December 9, 2014

Letting the Jury Lie: Supreme Court Finds Jury Impeachment Rule Precludes Inquiry Into Whether Juror Lied During Voir Dire

Today, the Supreme Court issued its opinion in Warger v. Shauers. The opinion addressed an issue that I've written about on this blog many times over the years: Does Federal Rule of Evidence 606(b) preclude the admission of juror testimony/affidavit(s) to prove that a juror lied during voir dire? So, how did the Court rule?

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December 9, 2014 | Permalink | Comments (4) | TrackBack (0)

The Serial Podcast, Episode 7: Analyzing Maryland's DNA Law & Its Application to Adnan's Case

I've done twelve posts (hereherehereherehereherehereherehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the seventh episode of the Serial Podcast: "The Opposite of Prosecution." This episode deals with the efforts of the Innocence Project at UVA in connection with Adnan's case. In turn, this post focuses on the procedural aspects of Maryland's DNA Law that the Innocence Project is trying to utilize.

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December 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

An Analysis of the Statute of Limitations in the Bill Cosby Sexual Assault Case

A woman has come forward and claimed that she was sexually assaulted by Bill Cosby in California in 1974 when she fifteen years old. Some of the discussion of this case has focused on the statute of limitations in such cases and why the woman has been able to bring her civil action 40 years later. I haven't come across an article discussing the specifics of the statute of limitations, so I thought that I'd do a post about it.

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December 8, 2014 | Permalink | Comments (1) | TrackBack (0)

The Serial Podcast, Episode 6: What Defense Counsel Could Have & Should Have Done With The Nisha Call

I've done eleven posts (hereherehereherehereherehereherehere, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the sixth episode of the Serial Podcast: "The Case Against Adnan Syed."  This episode deals with the strongest evidence that the prosecution introduced against Adnan at trial. In turn, this post primarily focuses on the strongest of those pieces of evidence: The Nisha Call.

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December 8, 2014 | Permalink | Comments (7) | TrackBack (0)

Special Counsel for Police Deadly Force Cases

My column at CNN.com suggesting a more independent approach to investigations of police deadly force cases is available at this link.

December 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

The Serial Podcast: A Timeline of Adnan's Trials and Appeals & My Best Guess at the Current Status of His Case

Yesterday, I was contacted by vox.com's  Libby Nelson, who wanted to talk with me today about the Serial Podcast and specifically Adnan's chances of winning his current appeal. That got me thinking that I didn't really know the exact legal status of Adnan's current appeal. So, I did some digging, and this post will detail my best guess as to the current status of Adnan's appeal. In turn, my interview on vox.com will deal with the likelihood that Adnan will succeed. 

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December 5, 2014 | Permalink | Comments (2) | TrackBack (0)

Thursday, December 4, 2014

The Eric Garner Case & the Legal Standards That Apply to New York Grand Juries

There's been a lot of discussion in the wake of the grand jury's decision not to indict an NYPD officer in connection with the death of Eric Garner. Having worked at an appellate court in New York for two years, I thought I would do a post laying out the legal standards applying to the case.

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December 4, 2014 | Permalink | Comments (0) | TrackBack (0)

The Serial Podcast, Episode 10: The Supreme Court's Framework for Prosecution Witness Plea Bargains

I've been getting a lot of e-mail today about a prior post of mine entitled, "The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?" It seems that the impetus is this morning's tenth episode of the Serial Podcast, "The Best Defense is a Good Defense," which touches upon this very issue. I have not listened to this episode yet, so I don't have any insight into what specifically happened at Adnan's trial. What I do know is that, in Napue v. Illinois, 360 U.S. 264 (1959), "[t]he Supreme Court established a framework for the application of Brady to witness plea agreements...." State v. Oulette, 989 A.2d 1048, 1056 (Conn. 2010). For now, I'll leave it to readers to decide where the prosecution's behavior at Adnan's trial falls within that framework.

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December 4, 2014 | Permalink | Comments (5) | TrackBack (0)

Wednesday, December 3, 2014

The Serial Podcast, Episode 5: The Admissibility & Discoverability of the Cell Tower Evidence

A woman is manually strangled, and her body is dumped in a park. The defendant, who had been in a relationship with the victim, becomes the suspect. There's nothing more than circumstantial evidence connecting the defendant to the murder, but two pieces of evidence are especially important: two cell phone calls whose pings tend to pinpoint the defendant's cell phone in the park when the victim's body was likely dumped there. The defendant is convicted. In 2014, more than a decade later, the defendant seeks post-conviction relief, alleging the ineffective assistance of counsel. Part of the claim is that trial counsel failed to contact a potential key witness who would have helped the defense. Part of the problem is that trial counsel has died. An alternate suspect emerges. DNA testing of crime scene evidence is done. The case I'm talking about is Roberts v. Howton, 13 F.Supp.3d 1077 (D.Or. 2014). The result? The defendant's conviction was reversed. 

I've done eight posts (hereherehereherehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the fifth episode of the Serial Podcast: "Route Talk."  This episode deals with the prosecution's use of cell tower pings at trial to establish the general location of Adnan's cell phone on the day of Hae's murder. In turn, this post deals with the admissibility and discoverability of evidence regarding these pings.

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December 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2014

Brave New World of Police Body Cameras

Body cameras worn by police officers have become a common policy proposal in response to the NYC Stop and Frisk litigation and recent events in Ferguson, Missouri.  A recent story from Washington State suggests some of the unanticipated consequences of such cameras.  Apparently, open records requests for police body camera footage have put such a burden on state workers that cities throughout the state have postponed plans to implement broader body camera policies.  The problem is that the footage cannot simply be copied and produced:

“Due to privacy concerns, the department can’t simply turn over video, which may show crime victims, abused children and bloody crime scenes, but must scrub it of certain information, police officials say.”

One fix is to exempt this footage from public records requests.  Something that Washington State is scrambling to do.  Other issues on the horizon are the handling of litigation-related discovery request for similar footage, something that may be harder to handle; and after that, of course, the evidentiary implications of police body-camera videos.

December 2, 2014 | Permalink | Comments (0) | TrackBack (0)