Monday, April 24, 2017
Federal Rule of Evidence 407 provides that
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
This rule can be explained pretty quickly with a series of hypotheticals:
Friday, April 21, 2017
Court of Appeals of Minnesota Rejects Use of Jury Instruction on Problems w/Cross-Racial Identifications
Bearing out the underlying findings of these studies, cross-racial misidentifications have surfaced in a large number of wrongful convictions. The single greatest cause of wrongful convictions in the United States is eyewitness misidentification. In a 2000 study, Innocence Project founders Barry Scheck and Peter Neufeld, along with columnist Jim Dwyer, found that 82% of wrongful convictions included mistaken eyewitness identifications. Of those mistaken identifications, 44% were Caucasian individuals erroneously identifying an innocent African-American defendant as the perpetrator.
Cross-racial misidentifications that lead to wrongful convictions can occur because people find it difficult to recognize physical traits with which they are unfamiliar. Valena Beety, What the Brain Saw: The Case of Trayvon Martin and the Need for Eyewitness Identification Reform, 90 Denv. U. L. Rev. 331, 342 (2012).
In response to the finding that mistaken cross-racial misidentifications are a leading cause of wrongful convictions, courts have done three things: (1) allowed expert testimony on the problems with cross-racial identifications; (2) given jury instructions on the problems with cross-racial identifications; or (3) nothing. With its recent opinion in State v. Thomas, 890 N.W.2d 413 (Minn.App. 2017), the Court of Appeals of Minnesota chose option #3. But that might change if and when the case reaches the Supreme Court of Minnesota.
Thursday, April 20, 2017
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
There's a debate across the country over whether the rule of completeness is just a rule of timing or also a rule of admissibility. In its recent opinion in State v. Sanchez, 380 P.3d 375 (Utah App. 2016), the Court of Appeals of Utah addressed this debate for the first time.
Wednesday, April 19, 2017
According to an article in BuzzFeed News,
Maryland rape victims no longer need to prove they physically fought back against their attackers, according to a new bill signed today by Gov. Larry Hogan that changes the state's legal definition of rape.
Under the new law, "Establishing that evidence of physical resistance by a victim is not required to prove that a sexual crime was committed." Goldberg v. State, 395 A.2d 1213 (Md.App. 1979), provides a good example of the type of case that will be prosecuted differently under the new law.
Note: The content that follows is graphic.
Tuesday, April 18, 2017
Court of Criminal Appeals of Alabama Finds Wife's Statement Accusing Husband of Murder Was Not a Statement Against Interest
A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
Usually, this "statement against interest" exception is used for statements that are clearly against the speaker's pecuniary or proprietary interest. For example, if Will said, "I owe Paul $500," that would clearly be a statement against pecuniary interest. Similarly, if Wanda said, "Paula has an easement across my property," that would clearly be a statement against proprietary interest. But what if Wanda said, "My husband killed Vince?" This was the question addressed by the Court of Criminal Appeals of Alabama in its recent opinion in Sheffield v. State, 2017 WL 1034568 (Ala.Crim.App. 2017).
Monday, April 17, 2017
Court of Criminal Appeals of Tennessee Finds Belief in Imminent Death Can be Inferred for Dying Declaration Exception
In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent and concerning the cause or circumstances of what the declarant believed to be impending death.
And, as the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Thompson, 2017 WL 943372 (Ct. Crim. App. Tenn. 2017), makes clear, the declarant's belief of imminent death can be "inferred from the circumstances."
Tuesday, April 4, 2017
Would the Court of Special Appeals Excuse Any Possible Waiver of the Cell Tower Issue in the Adnan Syed Appeal?
I think that the most unpredictable issue on appeal in the Adnan Syed case is the issue of waiver. Quite honestly, I have no idea whether the Court of Special Appeals will find that Adnan did or did not waive his cell tower claim. The court could find that:
(2) Adnan did not intelligently and knowingly waive the claim pursuant to the test established in Curtis v. State;
(3) Adnan intelligently and knowingly waived the claim pursuant to the test established in Curtis v. State;
(5) the intelligent and knowing waiver test doesn't apply to Adnan's case based upon one of the arguments made by the State in its Brief of Appellant (e.g., "Curtis was decided when an unlimited number of post-conviction petitions could be filed....").
In this post, though, I want to look more closely at the possibility of the Court of Special Appeals finding waiver, but excusing that waiver.
Thursday, March 30, 2017
In the Adnan Syed case, the State technically has three ways to win its appeal of Judge Welch's ineffective assistance/cell tower ruling: (1) establish that the ineffective assistance/cell tower issue was beyond the scope of the remand order; (2) establish that Adnan has waived this issue; or (3) establish that Adnan did not receive ineffective assistance of counsel in connection with the cell tower evidence.* I'm going to reserve my judgment on which side will win most of the issues in this appeal until after the State submits its final brief or maybe even until after oral arguments. But, at this point, I feel confident predicting that the State won't win on scope as a standalone issue.
Wednesday, March 29, 2017
Monday, March 27, 2017
Two days before the deadline for the filing of the defense's appellate brief in the Adnan Syed case, I thought I'd take a look back at one of the most significant parts of the case: track practice. Simply put, if Adnan was on time for track practice, it's really hard to imagine a scenario where Adnan is guilty. Conversely, if Adnan was (very) late to track practice, it's really hard to imagine a scenario where Adnan is innocent. In this post, I will list the five different versions of track practice that Jay gave, followed by some conclusions:
Thursday, March 23, 2017
Friday, March 17, 2017
Thursday, March 16, 2017
Having focused on the State's Brief of Appellant in the Adnan Syed over the last two weeks, I wanted to turn my attention to the upcoming Brief of Appellee, which is scheduled to be filed by March 29th. In addition to responding to the State's Brief of Appellant, the Brief of Appellee will also allege that Judge Welch erred in his ruling on the Asia/ineffective assistance claim. Specifically, the defense will argue that (1) Judge Welch correctly concluded that trial counsel acted unreasonably in failing to contact Asia McClain; but that (2) Judge Welch incorrectly concluded that this error was not prejudicial, i.e., does not undermine our confidence in the jury's verdict.
Thursday, March 9, 2017
I've gotten some good feedback on my posts last week (here and here) about waiver in the Adnan Syed appeal. After reviewing the relevant Rules/Section some more, I feel like I have a better grasp on whether waiver is a potential winning argument for the State on appeal.
Wednesday, March 8, 2017
After a few posts on procedural matters in connection with the State's appeal in the Adnan Syed case, this post takes me back to the substance of the State's appeal This is the post where I lay out the precedent that I think will lead the Court of Special Appeals to affirm Judge Welch's order granting Adnan a new trial.
1. Bowers v. State, 578 A.2d 734 (Md. 1990) Court of Appeals of Maryland;
2. People v. Lee, 185 Ill.App.3d 420 (Ill.App. 1989) Appellate Court of Illinois;
3. People v. Trait, 139 A.D.2d 937 (N.Y.A.D. 4th 1988) Supreme Court of New York, Appellate Division; and
4. Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995).
Tuesday, March 7, 2017
As I noted in my post yesterday,
there's a good argument that the State's waiver argument in the Adnan Syed case is a non-starter. If that's true, the only possible procedural ground for overruling Judge Welch's order granting a new trial would be a finding that Judge Welch exceeded the authority granted to him by the Court of Special Appeals (COSA) in its remand order by allowing Adnan to supplement his Asia/ineffective assistance claim with the cell tower/ineffective assistance claim.
This is my second post on the subject.
Monday, March 6, 2017
Supreme Court Exercises its Duty to Confront Racial Animus, Allows Jury Impeachment Based on Racial Bias
There's one legal topic I've discussed on this blog more than any other: Should jurors be able to impeach their verdicts by testifying about racial bias during deliberations. I link to many of my posts in this post, which also discusses the article I wrote on the topic: Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense.* Now, about eight years after that article, the United States Supreme Court has finally agreed.
As I noted in a post last Wednesday, there's a good argument that the State's waiver argument in the Adnan Syed case is a non-starter. If that's true, the only possible procedural ground for overruling Judge Welch's order granting a new trial would be a finding that Judge Welch exceeded the authority granted to him by the Court of Special Appeals (COSA) in its remand order by allowing Adnan to supplement his Asia/ineffective assistance claim with the cell tower/ineffective assistance claim. In the next few posts, I will take a look at that argument.
Friday, March 3, 2017
In order to find ineffective assistance of counsel on the cell tower issue, Judge Welch needed to find (1) unreasonable performance; and (2) prejudice, i.e., a reasonable probability of a different outcome at trial if Gutierrez had cross-examined the State's cell tower expert with the AT&T disclaimer at trial. In its Brief of Appellant, the State spends a good deal of time arguing against unreasonable performance, but it doesn't spend much time arguing against prejudice. The State's prejudice argument is about a page and a half: one paragraph on page 34, all of page 35, and one paragraph on page 36.The heart of the State's argument is as follows:
So, is the State correct that the time, duration, sequence, and dialed numbers on Adnan's call log reinforce the veracity of Jay's testimony?
Thursday, March 2, 2017
According to the State's Brief of Appellant in the Adnan Syed case:
This is probably the most facially compelling argument in the State's brief. It is well established that appellate courts will find ineffective assistance based upon omissions and not based upon choices, assuming that those choices involve some modicum of strategy. Judge Welch found that Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert was an omission warranting a new trial.
Conversely, in its brief, the State tries to recharacterize Gutierrez's decision as a choice based upon strategy. The AT&T disclaimer, of course, stated that
The State's contention, then, is that Gutierrez's strategy was to attack the reliability of all pings and that use of the AT&T disclaimer would have tended to confirm the reliability of incoming pings. But there's a huge problem with this argument.