EvidenceProf Blog

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

Monday, April 2, 2018

Does Judge Graeff's Test in Her Adnan Syed Dissent Ever Allow a Defendant to Prove IAC Against a Deceased Attorney?

In her dissenting opinion in the Adnan Syed case, Judge Graeff notes the following:

Here,...there was no testimony by trial counsel regarding why she did not contact Ms. McClain. Although this was because counsel was deceased at the time the post-conviction hearing occurred, this did not relieve Syed of his duty to satisfy the Strickland test....

The absence of testimony by trial counsel makes it difficult for Syed to meet his burden of showing deficient performance. As the court stated in Broadnax..., it is “extremely difficult” for a petitioner "to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Similarly, in Williams v. Head,...the court stated that, "where the record is incomplete or unclear about [counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment," noting that the "district court correctly refused to 'turn that presumption on its head by giving Williams the benefit of the doubt when it is unclear what [counsel] did or did not do.'"...

To be sure, there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel. This case, however, does not present such circumstances. Syed has pointed to no evidence in the record indicating that trial counsel’s decision not to interview Ms. McClain was based on anything other than reasonable trial strategy, relying instead on his blanket assertion that it is unreasonable in every case for trial counsel to fail to contact a potential alibi witness identified by the defense.

Although possible reasons for counsel's decision have been discussed, we do not know if these were the reasons that counsel decided not to contact Ms. McClain (emphasis added).

As noted, Judge Graeff concluded that "there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel." My question in this post is: What would those circumstances be? 

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April 2, 2018 | Permalink | Comments (11)

Saturday, March 31, 2018

A Hypothetical to Explain & Assess COSA's Waiver Ruling in the Adnan Syed Case

In their opinion affirming Judge Welch's order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no case law directly on point. So, did they rule correctly in breaking new ground? Let's break that question down by considering a hypothetical:

____________________

Hypothetical: Alice, Beth, and Carla are convicted of three separate murder in fall 2015, largely based upon expert testimony by FBI agents that hair recovered from the three crime scenes were matches for their hair. Thereafter:

1. Alice brings a PCR petition, claiming that the jury instructions were improper and there was jury misconduct;

2. Beth brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective based on failing to contact an alibi witness; and

3. Carla brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective in failing to use a 2015 report indicating that FBI examiners gave inaccurate testimony in 96% of forensic hair comparison cases to move to exclude testimony by the FBI agent at a Frye or Daubert hearing.

All three PCR petitions are denied. Alice, Beth, and Carla thereafter seek to bring successor PCR petitions, claiming that trial counsel in their cases was ineffective based upon failing to cross-examine their FBI agents. Which of these defendants should be able to bring a successor PCR petition?

_____________________

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March 31, 2018 | Permalink | Comments (3)

Friday, March 30, 2018

Analyzing the Four Cases Cited by Judge Graeff in Her Dissenting Opinion That Would Have Denied Adnan Relief

As I noted in yesterday's post, Judge Graeff dissented from the Court of Special Appeals Maryland granting Adnan a new trial. Judge Graeff dissented based upon the conclusion that the defense had failed to prove that Cristina Gutierrez was deficient in failing to contact prospective alibi witness Asia McClain. I've previously noted on this blog that I've been unable to locate a single case in which a court found that an attorney acted properly despite failing to contact an alibi witness brought to her attention by a defendant who maintains his innocence. In its briefing and oral arguments, the State also cited no such cases. 

In her opinion, Judge Graeff cited four cases, and these cases are likely to be at the heart of briefing and oral argument if the Court of Appeals of Maryland allows the State to appeal. So, what are those cases?

 

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March 30, 2018 | Permalink | Comments (22)

Thursday, March 29, 2018

My First Take on COSA's Opinion Affirming a New Trial for Adnan Syed

Today, the Court of Special Appeals of Maryland issued an opinion affirming Judge Welch's order granting Adnan Syed a new trial. It was a split decision, with two judges -- Chief Judge Woodward and Judge Wright -- affirming Judge Welch's order and one judge -- Judge Graeff -- dissenting. Judges Woodward and Wright, however, reversed Judge Welch's reasoning, finding that (1) the cell tower issue was waived; and (2) Cristina Gutierrez's failure to contact alibi witness Asia McClain was prejudicial, meaning that contacting her would have created the reasonable probability of a different outcome at trial.

The opinion by Judges Woodward and Wright isn't a declaration that Adnan is actually innocent, but it does a pretty good job of showing the weakness of the State's case against him at trial.

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March 29, 2018 | Permalink | Comments (19)

Tuesday, March 20, 2018

6th Circuit Orders Evidentiary Hearing Based on Juror's Live-In Boyfriend Visiting Defendant's LinkedIn Page

Federal Rule of Evidence 606(b) generally provides that jurors are not allowed to impeach their verdict, but subsection (2)(A) provides an exception allowing jurors to testify that "extraneous prejudicial information was improperly brought to the jury’s attention." A recent case out of the Sixth Circuit shows how social media searches can support a claim that this exception applies.

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March 20, 2018 | Permalink | Comments (2)

Sunday, March 18, 2018

Court of Appeals of South Carolina Grants Man a New Trial Based on Improper Exclusion of Dying Declaration in Which the Victim Named Someone Else as His Shooter

Like its federal counterpart, South Carolina Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

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, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, dying declarations consist of the victim saying that the defendant harmed him (e.g., Vince/victim telling an EMT that Dan/defendant shot him). Sometimes, however, a defendant will seek to present a dying declaration in which the victim identified someone else as the assailant. These exculpatory dying declarations are just as admissible as their inculpatory counterparts, which is why a South Carolina man just won a new trial.

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March 18, 2018 | Permalink | Comments (2)

Monday, February 12, 2018

Nebraska & The Inadmissibility of Prior Statements of (Non)Identification

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

identifies a person as someone the declarant perceived earlier.

So, assume that Eve

-is an eyewitness to a crime;

-is shown a photographic lineup that includes Doug, the defendant; and either

-picks Doug out of the lineup; or

-is unable to pick Doug out of the lineup.

If Eve later testifies at Doug's trial, her prior identification or non-identification of Doug would be admissible. As far as I know, 49 states have a similar doctrine in their state rules of evidence or precedent. As is made clear by the recent opinion of the Supreme Court of Nebraska in State v. McCurry, 891 N.W.2d 663 (Neb. 2017), the Cornhusker state seems to be the only exception.

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February 12, 2018 | Permalink | Comments (1)

Wednesday, February 7, 2018

Court of Appeals of New York Finds Statements Before a Defendant Enters a Conspiracy & After His Active Participation Are Admissible Against Him

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:...

The statement is offered against an opposing party and:...

was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, let's say that Al and Bob agree to rob a bank and make statements in furtherance of the conspiracy (e.g., "Let's rob the bank on the corner of State and Main."). Later, they enlist Dan to drive them to the bank so that they can rob it, with the plan to be picked up by a getaway driver, Greg, after the robbery. Then, after the robbery, while being driven by Greg, Al and Bob make more statements in furtherance in the conspiracy (e.g., "Let's hide the money in that cabin in the woods."). 

If Dan is being prosecuted for his role in the conspiracy/robbery, (1) are the statements made before he entered the conspiracy admissible against him under Rule 801(d)(2)(E); and (2) are the statements made after his active participation admissible against him under Rule 801(d)(2)(E)? In a case of first impression, the Court of Appeals of New York answered both questions in the affirmative in People v. Flanagan, 49 N.Y.S.3d 50 (N.Y. 2017).

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February 7, 2018 | Permalink | Comments (0)

Monday, February 5, 2018

11th Circuit Finds Conviction Resulting From Nolo Contendere Plea Insufficient to Satisfy Character Evidence Test

Federal Rule of Evidence 404(b) provides that evidence of a crime, wrong, or other act

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Meanwhile, Federal Rule of Evidence 410(a)(2) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

(2) a nolo contendere plea

So, let's say that a defendant is on trial for a crime (crime #1, e.g., safecracking) and has a prior conviction based upon a nolo contendere plea for a prior crime (crime #2, e.g., safecracking). If the prosecution wants to introduce evidence of the prior crime for a permissible purpose (e.g., knowledge of how to crack a safe), can it prove that prior crime solely through evidence of the defendant's prior conviction resulting from his nolo contendere plea? According to the Eleventh Circuit in United States v. Green, 873 F.3d 846 (11th Cir. 2017), the answer is "no."

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February 5, 2018 | Permalink | Comments (1)

Wednesday, January 31, 2018

Are Subsequent Remedial Measures Admissible at Criminal Trials?

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.

It is well established that Rule 407 applies in civil cases, like tort and nuisance cases. But does the Rule apply in criminal cases? This was the question addressed by the United States District Court for the Northern District of California in United States v. Pacific Gas and Electric Company, 178 F.Supp.3d 927 (N.D.Cal. 2016).

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January 31, 2018 | Permalink | Comments (1)

Tuesday, January 30, 2018

Cyntoia Brown & the "51-To-Life" Project: Final Report

Over the past two months, I've been examining juvenile sentencing laws across the country to test the thesis that Tennessee has the harshest juvenile homicide sentencing law in the country. After reviewing the laws in each state, that thesis has been confirmed. Tennessee indeed has the harshest juvenile homicide sentencing laws in the country by a good margin. You can download the report here: Download Juvenile Sentencing

The full report is also in this post before the fold:

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January 30, 2018 | Permalink | Comments (1)

Sunday, January 28, 2018

Cyntoia Brown & the "51-To-Life" Project: Wyoming

This is the fiftieth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Wyoming treats juvenile homicide offenders better than Tennessee.  

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January 28, 2018 | Permalink | Comments (0)

Friday, January 26, 2018

Cyntoia Brown & the "51-To-Life" Project: Wisconsin

This is the forty-ninth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Wisconsin treats juvenile homicide offenders better than Tennessee.  

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January 26, 2018 | Permalink | Comments (4)

Thursday, January 25, 2018

Cyntoia Brown & the "51-To-Life" Project: West Virginia

This is the forty-eighth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why West Virginia treats juvenile homicide offenders better than Tennessee.  

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January 25, 2018 | Permalink | Comments (0)

Wednesday, January 24, 2018

Cyntoia Brown & the "51-To-Life" Project: Washington

This is the forty-seventh in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Washington treats juvenile homicide offenders better than Tennessee.  

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January 24, 2018 | Permalink | Comments (0)

Tuesday, January 23, 2018

Cyntoia Brown & the "51-To-Life" Project: Virginia

This is the forty-sixth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Virginia treats juvenile homicide offenders better than Tennessee.  

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January 23, 2018 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project: Vermont

This is the forty-fifth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Vermont treats juvenile homicide offenders better than Tennessee.  

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January 23, 2018 | Permalink | Comments (0)

Monday, January 22, 2018

Cyntoia Brown & the "51-To-Life" Project: Utah

This is the forty-fourth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Utah treats juvenile homicide offenders better than Tennessee.  

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January 22, 2018 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project: Texas

This is the forty-third in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Texas treats juvenile homicide offenders better than Tennessee.  

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January 22, 2018 | Permalink | Comments (0)

Sunday, January 21, 2018

Cyntoia Brown & the "51-To-Life" Project: South Dakota

This is the forty-second in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why South Dakota treats juvenile homicide offenders better than Tennessee.  

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January 21, 2018 | Permalink | Comments (0)