EvidenceProf Blog

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

Friday, June 2, 2017

Supreme Court of Georgia Uses "Course of Conduct" Exception to Turn Aside Spider-Man Objection

Today marks the release of the "Wonder Woman" movie, but it was a Spider-Man objection that was the subject of a recent appeal in Georgia.


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June 2, 2017 | Permalink | Comments (2)

Tuesday, May 30, 2017

Supreme Court of Georgia Denies the Merchants Access to Court Recordings, Implies Undisclosed Might Win Similar Lawsuit

Today, the Supreme Court of Georgia ruled against The Merchant Law Firm, P.C., inits request "to obtain copies of audio recordings that a court reporter used in preparing trial transcripts." As Bill Rankin noted in his article on the ruling,

The Merchant Law Firm requested the recordings to try and show that Superior Court Judge David Emerson had improperly addressed defense attorney Ashleigh Merhcant in a condescending manner....

Merchant has said Emerson’s hostile demeanor toward her cannot be discerned from the stenographer’s transcripts of a murder case and a racketeering case she tried before him.

After the firm requested the audio recordings, Emerson told Merchant and her law partner husband John that they could come to court and listen to them, but they could not record them. This prompted the firm to file a lawsuit against Emerson and Cantrell in Fulton County Superior Court. But a judge dismissed the case, prompting the appeal to the state’s highest court.

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May 30, 2017 | Permalink | Comments (4)

Friday, May 26, 2017

The Court of Appeals of Maryland's Landmark Ruling on Postconviction DNA Testing

Two days ago, the Court of Appeals of Maryland issued a landmark opinion on the issue of what it takes for a convicted defendants to get postconviction DNA testing. Simply put, Maryland's highest court made it much easier for convicted defendants to get such testing. 

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May 26, 2017 | Permalink | Comments (3)

Thursday, May 25, 2017

Article of Interest: "Restoring Justice: Purging Evil From Federal Rule of Evidence 609," by Judge Timothy Rice

The Honorable Timothy R. Rice, United States Magistrate Judge for the Eastern District of Pennsylvania, sent me a copy of his forthcoming article, "Restoring Justice: Purging Evil From Federal Rule of Evidence 609." (forthcoming Temple Law Review) (Download Restoring Justice). The article deals with Federal Rule of Evidence 609, which allows for the admission of certain criminal convictions to impeach/call into the question the credibility of witnesses at trial. In particular, Rule 609(a)(1) allows for the impeachment of witnesses based upon certain felony convictions that were not based upon dishonesty. Judge Rice notes that this Rule is in fundamental tension with the trend toward restorative justice, "a process to help those with a stake in a specific offense to 'collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible.'" 

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May 25, 2017 | Permalink | Comments (8)

Saturday, May 20, 2017

The Disinterested Alibi Witness and the Adnan Syed Appeal

In its its Reply Brief of Appellee/Cross-Appellant in the Adnan Syed case, the defense makes an important point about Asia McClain that bears upon prejudice, i.e., whether Cristina Gutierrez's failure to contact/call her as an alibi witness undermines our confidence in the jury's verdict. According to the Reply Brief,

-regardless of the other evidence presented at trial, alibi testimony from a disinterested witness that would have placed Syed far from the victim at the time of the murder is sufficient to undermine confidence in the verdict;

-McClain was a disinterested witness whose testimony would have provided Syed with an alibi for the entire period when, according to the State, the murder took place; and

-the prosecution's argument that the evidence was so strong that an alibi witness wouldn't have mattered

requires the assumption that testimony from a credible and disinterested witness4 that Syed could not have committed the crime because he was with her when it supposedly occurred would not have been enough to sow any doubt with the jury.

So, what's the significance of Asia simply being Adnan's classmate and not a family member or close friend?

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May 20, 2017 | Permalink | Comments (11)

Friday, May 19, 2017

My First Take on the Defense's Reply Brief in the Adnan Syed Case

Today, the defense filed its Reply Brief of Appellee/Cross-Appellant in the Adnan Syed case. This is the last brief that will be filed before oral arguments in the Court of Special Appeals of Maryland on June 8th. In the Reply Brief, the defense repeatedly points to the lack of precedent cited by the State on the question of whether Cristina Gutierrez was ineffective based upon failure to contact prospective alibi witness Asia McClain. Specifically, the defense notes that the State only cited two cases on the prejudice prong of this issue, the prong that focuses on whether contacting and calling Asia as an alibi witness would have created the reasonable probability of a different outcome at trial: (1) Lockhart v. Fretwell, 506 U.S. 364 (1993) which dealt with trial counsel's failure to make an objection during a sentencing hearing; and Nix v. Whiteside, 475 U.S. 157 (1986), which dealt with trial counsel refusing to suborn perjury. The defense, of course, argues that Fretwell "has no bearing whatsoever on whether the failure to investigate an alibi witness is prejudicial." So, what about Whiteside?

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May 19, 2017 | Permalink | Comments (12)

Tuesday, May 16, 2017

Supreme Court of Washington Finds Advanced Registered Nurse Practitioners Can Testify Regarding Medical Causation

Washington Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge willassist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under this standard, can an advanced registered nurse practitioner (ARNP) testify regarding the medical cause of a particular condition? In its recent opinion in Frausto v. Yakima HMA, LLC, 2017 WL 1533247 (Wash. 2017), the Supreme Court of Washington answered this question in the affirmative. 

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May 16, 2017 | Permalink | Comments (2)

Monday, May 8, 2017

Would Asia's Testimony Have Magnified or Minimized the Flaws in the State's Case Against Adnan Syed?

Was Adnan Syed prejudiced by Cristina Gutierrez's failure to contact alibi witness Asia McClain? Judge Welch answered this question in the negative in his opinion granting Adnan a new trial on his cell tower claim. In that opinion, however, Judge Welch noted a first flaw in the State's case: "the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory." Specifically, Jay testified that he got the "come and get me" call after 3:45 P.M. while the State argued in closing that the "come and get me" call occurred at 2:36 P.M., after Adnan had killed Hae at Best Buy.

In its Reply Brief and Appendix of Cross-Appellee, the State has now identified a second flaw in the State's case:

Screen Shot 2017-05-08 at 1.01.04 PM 

Of course, the State's claim is that Asia's testimony actually "resolves the flaw Gutierrez intended to exploit. Meanwhile, the defense's claim is that these two flaws mean that the State's case was already weak and that there's a reasonable probability that there would have been a different outcome if Asia had testified at trial. So, who is right?

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May 8, 2017 | Permalink | Comments (25)

Friday, May 5, 2017

Why the State's Attempt to Restrict Curtis in the Adnan Syed Appeal Wouldn't Work

In its Reply Brief and Appendix of Cross-Appellee, the State makes the following argument:

Screen Shot 2017-05-04 at 8.04.38 PM

The State, however, didn't mention an equally important development in Maryland law that occurred in 2002.

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May 5, 2017 | Permalink | Comments (11)

Thursday, May 4, 2017

The Case Against Adnan Syed, Redux

In its Reply Brief and Appendix of Cross-Appellee, the State has a section titled, "Syed Cannot Establish Prejudice in this Case." This is, in effect, an updated version of Episode Six of Serial: "The Case Against Adnan Syed." Essentially, the State uses this section of its Reply Brief to set forth its best evidence against Adnan, other than the cell tower pings, in an attempt to prove that trial counsel's failure to use the AT&T disclaimer wasn't prejudicial. The problem for the State, though, is that its recitation of facts seemingly proves the opposite. 

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May 4, 2017 | Permalink | Comments (25)

Wednesday, May 3, 2017

Does the Law of the Case Doctrine Make or Break the State's Case? (Part 2)

In yesterday's post, I began my discussion of the law of the case doctrine and how it relates to Adnan's case. In its Reply Brief and Appendix of Cross-Appellee, the State cited language from the opinion of the Court of Appeals of Maryland in Fidelity-Baltimore Nat. Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 142 A.2d 796 (Md. 1958) regarding the doctrine: 

Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the ‘law of the case’ and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal. (emphasis added by Reply Brief).

In yesterday's post, I focused on the non-italicized portion of this language for the easy conclusion that Judge Welch was not barred by the law of the case doctrine from reversing his prior order on the Asia/alibi issue. In today's post, I will focus on the italicized portion of this language to address the more difficult question of whether Judge Welch was barred by the law of the case doctrine from considering the cell tower issue.

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May 3, 2017 | Permalink | Comments (18)

Tuesday, May 2, 2017

Does the Law of the Case Doctrine Make or Break the State's Case? (Part One)

Adnan's ineffective assistance/cell tower might all come down to something known as the law of the case doctrine, and I have to admit that I'm not entirely sure how the court will rule on the issue. In its Reply Brief and Appendix of Cross-Appellee, the State claims not only that the Court of Special Appeals's remand order was limited to the Asia/alibi issue but that the remand order had to be limited to the Asia/alibi issue based upon the law of the case doctrine. Here's the pertinent portion of the State's  Reply Brief:

  Screen Shot 2017-05-02 at 6.13.25 AM

Screen Shot 2017-05-02 at 6.14.13 AM

So, does the State have a winning argument on this issue?

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May 2, 2017 | Permalink | Comments (5)

Monday, May 1, 2017

Is the State Right That the Right to the Effective Assistance of Counsel is Distinct From the Right to Counsel?

In his opinion granting Adnan a new trial, Judge Welch cited to Curtis v. State, 395 A.2d 464 (Md. 1978), which held that (1) the right to counsel is a fundamental right; (2) fundamental rights require "intelligent and knowing" waiver; and (3) Curtis did not intelligently and knowingly waive his claim of ineffective assistance of counsel. Judge Welch then found that Adnan had similarly not intelligently and knowingly waived his claim of ineffective assistance of counsel with regard to the cell tower evidence.

The State has tried to distinguish Curtis, claiming in its Brief of Appellant that "Curtis dealt with a total abandonment by counsel...." In its new Reply Brief and Appendix of Cross-Appellee, the State tries to strike a similar chord, but is its argument convincing? 

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May 1, 2017 | Permalink | Comments (3)

Sunday, April 30, 2017

The State's Reply Brief & Gutierrez's Failure to Secure a Limiting Instruction for Cell Tower Pings

This is the big one. At the reopened PCR proceeding, in its Application for Leave to Appeal (ALA), and in its Brief of Appellant, the State has advanced a consistent theme: Even though Cristina Gutierrez did not use the AT&T disclaimer, she was effective because her attacks on the cell tower evidence produced a blueprint for cross-examination that continues to be followed today. Here's the pertinent language from the ALA:

Screen Shot 2017-04-30 at 6.21.45 AM

And here's the corresponding language from the Brief of Appellant:

Screen Shot 2017-04-30 at 6.22.47 AM

This argument from the State was dependent upon Gutierrez's master stroke of procuring a limiting instruction informing jurors that the cell tower pings were only evidence that could be used to corroborate (or dispel) Jay's testimony and not independent evidence of the location of Adnan's cell phone. As the State noted in its Brief of Appellant:

Screen Shot 2017-04-30 at 6.26.47 AM

Thereafter, in what I characterized as a "legal bombshell," the defense responded in its Brief of Appellant that the Emperor had no clothes: While the trial judge recognized the potential prejudice associated with the cell tower evidence and asked the parties to craft proposed limiting instructions, the defense possibly ever never crafted a draft limiting instruction and definitely never objected to the judge failing to give such an instruction. So, how did the State respond to this revelation?

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April 30, 2017 | Permalink | Comments (4)

Saturday, April 29, 2017

The State's Erroneous Claim That Judge Welch Didn't Apply the Presumption of Reasonableness

In yesterday's Reply Brief and Appendix of Cross-Appellee in the Adnan Syed case, the State argued as follows:

Screen Shot 2017-04-29 at 3.51.06 PM

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April 29, 2017 | Permalink | Comments (15)

My First Take on the State's Reply Brief in the Adnan Syed Case

Yesterday, the State filed its Reply Brief and Appendix of Cross-Appellee in the Adnan Syed case. This is the last brief before oral argument in the Court of Special Appeals of Maryland on June 1st. It's also the first (and only) time before oral argument that the State is addressing the issue of whether trial counsel was ineffective based upon failure to contact prospective alibi witness Asia McClain; the State didn't address this issue in its first brief.* So, how did the State do?

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April 29, 2017 | Permalink | Comments (7)

Thursday, April 27, 2017

Georgia Innocence Project Seeks to Overturn Sexual Assault Conviction Based on DNA Testing

According to an article yesterday by Bill Rankin,

For the past 27 years, Ronald Jacobsen has been serving a life sentence for kidnapping a woman from a Newton County convenience store and then beating and sexually assaulting her on a two-hour drive down I-20.

A DNA test now shows, however, that Jacobsen did not commit the crime, Vanessa Potkin, a lawyer for the Innocence Project, told a judge on Tuesday. GBI tests show that male DNA from the woman’s rape kit could not have come from Jacobsen, she said, and she is asking the court to grant Jacobsen a new trial.

District Attorney Layla Zon, however, opposed the motion, claiming

that the DNA brought forward by the Innocence Project could have come from a man with whom the victim had consensual sex not long before the assault. As a result, she said, the test results are inadmissible under the Rape Shield Act, which prohibits evidence of a rape victim’s sexual history.

So, is Zon right?

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April 27, 2017 | Permalink | Comments (2)

Wednesday, April 26, 2017

The 8th Circuit's Shifting Standard on Pedagogic Devices at Trial

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 1006 is a rule of convenience. Imagine a case where the prosecution has the defendant's phone records for a six month period and wants to highlight the calls that he made to his three alleged accomplices during that period in time. Under Rule 1006, the prosecution could prepare a chart that just shows the calls made to these three individuals.

As the recent opinion of the Eighth Circuit in United States v. Needham, 852 F.3d 830 (8th Cir. 2017), make clear, some courts also allow for the introduction of "pedagogic devices." The opinion, though, doesn't note an important point about these devices.

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April 26, 2017 | Permalink | Comments (0)

Tuesday, April 25, 2017

Georgia Applies Absence of Public Record Hearsay Exception in Karaoke Robbery Case

Federal Rule of Evidence 803(10) contains one of the more interesting hearsay exceptions. It allows for the admission of the absence of a public record. Georgia's version of this exception -- OCGA Section 24-8-803(10) -- describes the exception as follows:

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Up until recently, however, the Georgia courts had never applied this exception. That all changed, though, with the recent opinion of the Court of Appeals of Georgia in Tran v. State, 2017 WL 939400 (Ga.App. 2017). 

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April 25, 2017 | Permalink | Comments (0)

Monday, April 24, 2017

The Forgotten "Existence of Duty" Exception to the Subsequent Remedial Measure Rule

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:

  • negligence;
  • 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:

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April 24, 2017 | Permalink | Comments (0)