EvidenceProf Blog

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

Thursday, July 13, 2017

When is a Declarant "Unavailable" for Hearsay Purposes Due to Mental Illness?

Like its federal counterpart, Idaho Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for former testimony by an "unavailable" declarant. And, like its federal counterpart, Idaho Rule of Evidence 804(a)(4) states that a declarant is "unavailable" if he "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Obviously, if a declarant is deceased, he is unavailable. And, obviously, if the declarant has a severe ailment such as the flu that is expected to exceed the duration of the trial, he is "unavailable." But when is a declarant "unavailable" due to mental illness? That was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 2952458 (Idaho 2017).

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July 13, 2017 | Permalink | Comments (2)

Wednesday, July 12, 2017

5th Circuit Finds No Ground for Relief Against Bite Mark Experts Who Testified at Trials of Men Who Were Later Exonerated

Bite mark comparison/analysis is a largely discredited forensic science field. In its report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, the President’s Council of Advisors on Science and Technology noted that "studies reported in 2009 and 2010 on bitemark evidence...found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter." Does that mean that exonerates should be able to bring civil lawsuits against bite mark experts who testified against them at trial? According to the recent opinion of the Fifth Circuit in Brewer v. Hayne, 2017 WL 2784155 (5th Cir. 2017), the answer is (usually) "no."

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July 12, 2017 | Permalink | Comments (1)

Friday, July 7, 2017

How the "One Juror" Standard Could Lead to Adnan Syed Getting a New Trial

Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:

27 - 24

The answer to this question could very well answer the question of whether Adnan Syed will get a new trial. 

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July 7, 2017 | Permalink | Comments (8)

Wednesday, July 5, 2017

My New Article: "Plea Agreements as Constitutional Contracts"

Today, I posted the working draft of my new article, Plea Agreements as Constitutional Contracts, on SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause. This Article then argues that incorporation of one of these protections—the implied covenant of good faith and fair dealing—would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts: (1) substantial assistance motions; (2) Brady disclosures; and (3) prosecutorial presentation of sentencing recommendations.

Any feedback/comments would be appreciated.

-CM

July 5, 2017 | Permalink | Comments (4)

Friday, June 30, 2017

Maryland Court Finds Evidence & Testimony Related to Cell Tower Drive Test Unreliable and Inadmissible

Two days ago, the Court of Special Appeals of Maryland issued an interesting opinion in Phillips v. State. In Phillips, Bashunn Phillips was charged with the first-degree murder of Shar-Ron Mason and related crimes. 

The State notified Phillips that it intended to offer at trial a radio frequency (“RF”) signal propagation map purporting to establish the approximate location of Phillips’s phone on the morning of December 10, 2013 [the day of the murder]. The propagation map represented data obtained through a drive test conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation’s Cellular Analysis and Survey Team, on October 23, 2014.

In response, Phillips filed a motion in limine, "seeking to exclude the RF signal propagation map and related testimony."

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June 30, 2017 | Permalink | Comments (7)

Tuesday, June 27, 2017

Oral Arguments in the Adnan Syed Case & Another Reason the 3:15 P.M. Call Doesn't Work

Throughout the appeal in the Adnan Syed case, the State has claimed that the prosecution's argument at trial that Adnan Syed killed Hae Min Lee by 2:36 P.M. was just its "best" theory of the case and that it just as easily could have argued a different theory of the case. The only alternate theory of the case that it has advanced, however, is that the 3:15 P.M. call on Adnan's call log was the "come and get me" call as opposed to the 2:36 P.M. call. Judge Welch, of course, refuted this argument in footnote 9 of his opinion granting a new trial based upon the number of events in Jay's narrative between the "come and get me" call and the 3:21 P.M. call he made to Jenn, ostensibly to look for Patrick. Until re-listening to the oral arguments in the case today, however, I hadn't noticed an even bigger problem for the State.

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June 27, 2017 | Permalink | Comments (19)

Friday, June 23, 2017

How COSA Could Find That Adnan Syed Waived the Cell Tower Claim & Still Use it to Grant Him a New Trial

While I think that the Court of Special Appeals of Maryland will affirm Judge Welch's order granting Adnan Syed a new trial, I think the State's best chance at a reversal is the possibility that the Court of Special Appeals will

-agree with Judge Welch that the failure to contact prospective alibi witness Asia McClain was not prejudicial, in and of itself; and

-disagree with Judge Welch and conclude that Adnan waived his ineffective assistance/cell tower claim.

But what if the Court of Special Appeals and/or the Court of Appeals of Maryland reached both of these conclusions and still granted Adnan a new trial? Based upon the opinion of the Court of Appeals of Maryland in Lawson v. State, 886 A.2d 876 (Md. 2005), this seems like a real possibility.

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June 23, 2017 | Permalink | Comments (4)

Thursday, June 22, 2017

What the Court of Special Appeals Can and Can't Do With Waiver in the Adnan Syed Case

Last Friday, I predicted that the Court of Special Appeals will grant Adnan a new trial on the alibi issue and not address the portion of Judge Welch's order dealing with the cell tower issue, and specifically the waiver issue. Part of the reason for this is that the Court of Special Appeals is quite limited in what it can do on the waiver issue. Judge Welch, of course, ruled that (1) the Court of Appeals of Maryland found in Curtis v. State, 284 Md. 132 (1978), that the right to the effective assistance of counsel is a "fundamental right;" (2) as such, a claim of ineffective assistance of counsel must be knowingly and intelligently waived; and (3) Adnan did not knowingly an intelligently waive his claim that he received the ineffective assistance of counsel based upon Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. 

A big part of the State's claim on appeal is that Curtis v. State is outmoded because, inter alia, it was issued when a petitioner could file an unlimited number of PCR petitions. For instance, the State argues:

Screen Shot 2017-06-22 at 9.20.40 AM

The problem for the State, however, is that the Court of Special Appeals has no authority to overrule Curtis on the ground that it's outmoded.

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June 22, 2017 | Permalink | Comments (4)

Tuesday, June 20, 2017

Assessing the State's Claim of "Overwhelming" Evidence in the Adnan Syed Case in Light of Wearry v. Cain

Maybe the most important exchange from the recent oral arguments in the Adnan Syed case was this one:

State 17

With her question, Judge Graeff clearly appears to be referencing the Supreme Court's recent opinion in Wearry v. Cain, which (1) was issued after the reopened PCR proceedings in Adnan's case; and (2) was cited by the defense in its Brief of Appellee/Cross-Appellant to the Court of Special Appeals. Wearry was the case in which the Supreme Court found that strong evidence of a defendant's involvement in post-murder events should not prevent a court from finding prejudice based upon evidence that undermines the State's theory of the actual murder itself.

This conclusion is, of course, hugely relevant to Adnan's case given that Judge Welch concluded that (1) Cristina Gutierrez unreasonably failed to contact prospective alibi witness Asia McClain; but that (2) the "crux" of the State's case was the intersection between Jay's testimony about the burial and the Leakin Park pings.

Those pings are part of what the State has claimed is "overwhelming" evidence of Adnan's guilt, which it asserts should prevent the Court of Special Appeals from finding that the failure to contact Asia McClain was prejudicial, or undermines our confidence in the jury's verdict. The State laid out this evidence in its Reply Brief and Appendix of Cross-Appellee.

In a prior post, I assessed the overall strength of this evidence in a general sense. In this post, I will assess this evidence under the Wearry v. Cain standard. In other words, I will assess whether the evidence actually supports the State's theory as to how Adnan murdered Hae or merely shows that Adnan might have been involved in post-murder events.

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June 20, 2017 | Permalink | Comments (25)

Friday, June 16, 2017

My Prediction for How the Court of Special Appeals Rules in the Adnan Syed Case

Last Thursday, the Court of Special Appeals of Maryland heard oral arguments in the Adnan Syed case. Steve Klepper, an expert in Maryland appellate law, has predicted that the Court of Special Appeals will issue its opinion in the case 3-12 months from now (possibly earlier, possibly later). Here's how I think the court will rule and why.

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June 16, 2017 | Permalink | Comments (26)

Thursday, June 15, 2017

Oral Arguments in the Adnan Syed Case and the Importance of Opening Statements/Closing Arguments

Last night, we debuted our Undisclosed episode about the oral arguments in the Adnan Syed case. For me, possibly the most interesting part of the oral arguments was the back-and-forth regarding how much weight the judges should give to closing arguments from trial in assessing the prejudice caused by Cristina Gutierrez's failure to contact prospective alibi witness Asia McClain. In other words, given that Asia offered credible testimony at the PCR hearing about seeing Adnan at the Woodlawn Public Library until about 2:40 P.M., how important was it that the State claimed in closing that Adnan had killed Hae before making the "come and get me" call from Best Buy at 2:36 P.M.?

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June 15, 2017 | Permalink | Comments (14)

Sunday, June 11, 2017

Does the Pennsylvania Case Cited by the State on Waiver Actually Help Adnan Syed?

On Wednesday, Undisclosed will have a special episode on the oral arguments in the Court of Special Appeals of Maryland regarding the Adnan Syed case. When we recorded the episode, I hadn't yet looked into a case cited by the State in its Reply Brief and used by the State during oral arguments. I will address that case here.

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June 11, 2017 | Permalink | Comments (15)

Thursday, June 8, 2017

A Preview of Today's Oral Arguments in the Adnan Syed Case

Today at 2:00 P.M., there will be oral arguments before the Court of Special Appeals of Maryland (COSA) in the Adnan Syed case. Steve Klepper has noted that a decision might come about 3-12 months after these oral arguments. Again, COSA is addressing three issues:

(1) Did Adnan Syed receive the ineffective assistance of counsel (unreasonable performance + prejudice) based upon his trial counsel's failure to contact prospective alibi witness Asia McClain;

(2) Did Adnan Syed receive the ineffective assistance of counsel based upon his trial counsel's failure to ask about a plea deal; and 

(3) Did Adnan Syed receive the ineffective assistance of counsel based upon his trial counsel's failure to use an AT&T disclaimer to cross-examine the State's cell tower expert, an issue that COSA will need to reach only if it finds that

(a) Judge Welch did not abuse his discretion by interpreting COSA's remand order as allowing this issue to be raised; and

(b) this issue was not waived (or if it excuses such waiver).

Given that the losing party will almost certainly appeal to the Court of Appeals of Maryland (Maryland's supreme court), what are the key points to consider before oral arguments and COSA's ultimate opinion?

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June 8, 2017 | Permalink | Comments (5)

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.

Spider

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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)