EvidenceProf Blog

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

Monday, November 6, 2017

Is Failure to Register as a Sex Offender a Crime of Dishonesty or False Statement?

Similar to its federal counterpart, Arkansas Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime 

(2) involved dishonesty or false statement, regardless of the punishment.

So, does the crime of failure to register as a sex offender qualify as a crime of dishonesty or false statement under Rule 609(a)(2)? That was the question presented to the Court of Appeals of Arkansas in Pledger v. State, 2017 Ark. App. 566 (Ark.App. 2017).

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November 6, 2017 | Permalink | Comments (1)

Thursday, November 2, 2017

The Supreme Court of Georgia's Ruling in Undisclosed, LLC v. The State

On Monday, the Supreme Court of Georgia ruled against Undisclosed in our attempt to get the court reporter's recording of the Joey Watkins trial. In doing so, Georgia's highest court made one decision that will greatly help future parties seeking access to court records and one decision that will greatly curtail that access. So, what did the Supreme Court of Georgia rule and why? 

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November 2, 2017 | Permalink | Comments (6)

Wednesday, October 25, 2017

The Effect of 4 Permutations of Debbie's Statements on the Adnan Syed Case

A reader/listener e-mailed me recently to ask about the implications of various permutations of Debbie's police statements/testimony in the Adnan Syed case. You might recall that Debbie gave three police statements and testified at both of Adnan's trials:

Police Statement to Detective O'Shea: On January 28, 1999, Debbie said that she saw Hae at school at approximately 3:00 P.M. on January 13th and that "Hae told Debbie she was going to see Donald at the mall."

Police Statement to Detectives MacGillivary and O'Shea: On March 2, 1999, Debbie went to the police station for a recorded interview. The State has only been able to locate the cover sheet for this interview.

Police Statement to Detectives Ritz and MacGillivary: On March 26, 1999, Debbie said that 

(1) she saw Adnan outside the guidance counselor's office at about 2:45 P.M. on January 13th; Adnan had his "track stuff with him, his gym bag," and they talked about school and Adnan "going to practice;"

(2) she saw Hae and their classmate "Takera" between 2:45 and 3:15 P.M., with "Takera" (and no one else that Debbie can remember) asking Hae for a ride and Hae responding that "she couldn't because she had to pick up her cousins after school, and she had to meet them about 3 O'CLOCK, so she didn't have time;"

Trial #1 Testimony: At Adnan's first trial, Debbie testified on December 13, 1999 that she remembered telling the detectives that she saw Adnan outside the guidance counselor's office on January 13th. She was not asked about seeing Hae after school on January 13th.

Trial #2 Testimony: At Adnan's second trial, Debbie testified on February 16-17, 2000 that she saw Hae at about 3:00 P.M. on January 13th, with Hae telling her that she was going to see Don at the mall. Debbie was not asked about "Takera" and testified that she did not recall telling detectives that she saw Adnan outside the guidance counselor's office on January 13th.

The reader/listener's question was about the implications of various permutations of these statements. So, let's look at the four likeliest permutations and their implications.

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October 25, 2017 | Permalink | Comments (25)

Wednesday, October 18, 2017

Supreme Court of Georgia Deems Statements Inadmissible as Co-Conspirator Admissions in Murder Trial

Similar to its federal counterpart, Georgia Rule of Evidence 801(d)(2)(E) allows for the admission of

A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

It seems fairly easy to determine when a statement is made during the course of a conspiracy, but when is such a statement made in furtherance of a conspiracy? That was the question addressed by the Supreme Court of Georgia in its recent opinion in State v. Wilkins, 2017 WL 4341400 (Ga. 2017).

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October 18, 2017 | Permalink | Comments (0)

Wednesday, October 11, 2017

Supreme Court of Hawai'i Finds Co-Defendants Don't Have to Join Objections to Preserve Issues

Two defendants -- Lawrence L. Bruce and Justin McKinley -- are jointly tried in connection with "their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). In response to the prosecutor's comment during rebuttal closing

that CW was “somebody's daughter, she's somebody's friend, she's a mother, she's a woman, she is a person,” McKinley objected on grounds that “this is a little bit far beyond arguing the evidence.” Bruce did not join McKinley's objection, nor did he raise one of his own. McKinley's objection was overruled.

Has Bruce reserved the issue for appellate review? This was the question of first impression that the Supreme Court of Hawai'i addressed in its recent opinion in State v. Bruce, 2017 WL 4480038 (Hawai'l 2017). 

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October 11, 2017 | Permalink | Comments (4)

Friday, October 6, 2017

Judge Culbertson Denies Jamar Huggins's Motion for a New Trial

We finally got Judge Culbertson's order in the Jamar Huggins case, and Judge Culbertson has denied him Jamar's motion for a new trial (Download Huggins Order). This was not unexpected based upon oral arguments. The question was whether Deaungela Montgomery's post-trial statement identifying someone else as the true perpetrator of the home invasion was "new evidence," and Judge Culbertson seemed pretty skeptical of this claim. And now, in his order, Judge Culbertson clearly concludes that this information could have been obtained before trial or during trial with due diligence.

That's bad for the motion for a new trial, but it seems to strongly support a claim of ineffective assistance of trial counsel. But, before we get to that appeal, there will be an appeal of the Judge Culbertson's order. So, it could take a while, but I'm still confident that justice will ultimately be served.


October 6, 2017 | Permalink | Comments (1)

Court of Special Appeals Applies Curtis v. State to Find No Waiver of Ineffective Assistance Claim

Maybe the biggest current legal question in the Adnan Syed case is the question of whether Adnan has waived his claim that trial counsel was ineffective based upon her failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. In his opinion granting Adnan a new trial on this ground, Judge Welch found that (1) claims of ineffective assistance of counsel require knowing and intelligent waiver pursuant to Curtis v. State; and (2) Adnan had not knowingly and intelligently waived his cell tower claim. Thereafter, in its appeal to the Court of Special Appeals of Maryland, the State claimed that (1) the "knowing and intelligent" waiver standard from Curtis has not been applied in another ineffective assistance of counsel case in the thirty-nine years since it was decided; and (2) Maryland courts should accordingly no longer apply this standard to ineffective assistance claims.

This takes us to the recent opinion of the Court of Special Appeals of Maryland in Thomas v. State, 2017 WL 4073754 (Md.App. 2016).

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October 6, 2017 | Permalink | Comments (8)

Thursday, October 5, 2017

Indiana Case Sets the Standard for Admitting Testimony Obtained Via Facilitated Communication

"Facilitated communication is defined as follows: a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control."...“The technique was developed by Rosemary Crossley in Australia in the 1970's and introduced to the United States by Dr. Douglas Biklin in 1989."...When facilitated communication is initially being used, the communicator typically is supported above or below the wrist by the facilitator....The goal is for the facilitator, over time, to move the support further back on the arm or shoulder so that there is less direct contact until there is no contact....That technique is known as "fading."...The facilitator applies backward pressure and centers the communicator after each letter is typed to prevent the communicator from repeatedly striking the same key, one of the manifestations of behavior also known as perseveration....Because facilitated communication is a joint activity, however, there is potential for what is known as "cuing," where the facilitator may knowingly or unknowingly anticipate or in another way assist the communicator in selecting certain letters.

Given the above, should testimony obtained by facilitated communication be admissible? That is the issue of first impression addressed by the Court of Appeals of Indiana in its recent opinion in Hope Source v. B.T. by Troutman, 2017 WL 4159715 (Ind.App. 2017). 

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October 5, 2017 | Permalink | Comments (5)

Wednesday, September 27, 2017

Court of Appeals of Minnesota Finds That Subsequent Convictions Are Admissible to Impeach Defendants

Minnesota Rules of Evidence 609(a) and (b) state the following:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, imagine three scenarios: 

(1) A defendant is charged with vandalism. 10+ years before this crime, the defendant was convicted of conspiracy to commit second-degree robbery. Clearly, the conviction is governed by subsection (b);

(2) A defendant is charged with vandalism. 10 years or less before the crime, the defendant was convicted of conspiracy to commit second-degree robbery. Clearly, the conviction is governed by subsection (a);

(3) A defendant is charged with vandalism. After this crime but before her trial, the defendant was convicted of conspiracy to commit second-degree robbery. Does Rule 609 apply at all? 

This last question was the question of first impression addressed by the Court of Appeals of Minnesota in State v. Souder, 2017 WL 4228698 (Minn.App. 2017).


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September 27, 2017 | Permalink | Comments (0)

Saturday, September 16, 2017

Was The Nisha Call Nisha Calling Adnan Back After an Unanswered or Dropped Call?

As we all know, Nisha was a key witness in the Adnan Syed case. She testified that on some unknown date she received a call from Adnan, who told her that his friend Jay had invited him to his job at an adult video store. Adnan told Nisha that he was arriving at the video store during the call and handed the phone to Jay talk to Nisha upon his arrival (the only time she spoke to Jay). The prosecution claims that this call took place at 3:32 P.M. on January 13, 1999. Others, including me, have countered that this call couldn't have taken place until the end of January, when Jay started his job at the adult video store. In turn, this had led to consideration of which outgoing call from Adnan's cell phone to Nisha could have been the adult video store call.

But what if there's no record of this call because it was either unanswered and dropped and then perhaps followed by a call from Nisha to Adnan? 

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September 16, 2017 | Permalink | Comments (25)

Thursday, September 14, 2017

When is a Witness Unavailable to Testify at Trial Due to Mental Illness?

Similar to its federal counterpartIdaho Rule of Evidence 804(b) contains hearsay exceptions that apply if the declarant is "unavailable." In turn, Idaho Rule of Evidence 804(a)(4) states that a declarant is unavailable when she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Usually, courts apply Rule 804(a)(4) in situations where declarants are unavailable due to death or serious physical illness. But when is a declarant "unavailable" due to mental illness? This was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 4016692 (Idaho 2017).

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September 14, 2017 | Permalink | Comments (4)

Tuesday, September 12, 2017

My New Essay: "Reciprocal Immunity"

Today, I posted the draft of my new essay, "Reciprocal Immunity," on SSRN. Here is the abstract:

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

These are the truncated facts of United States v. Davis, a recent Seventh Circuit opinion that has led to a cert petition to the Supreme Court. The same result, however, could have occurred in nearly any court, with cases across the country standing for the proposition that a grant of immunity to a witness for the prosecution doesn’t require reciprocal immunity for a directly contradictory defense witness.  

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Any feedback would be appreciated.


September 12, 2017 | Permalink | Comments (1)

Friday, September 8, 2017

Supreme Court of Utah Finds Preliminary Hearing Testimony Inadmissible Under Former Testimony Hearsay Exception

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) provides a hearsay exception for former testimony that

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B)   is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

In State v. Goins, 2017 WL 3909332 (Utah 2017), the Supreme Court of Utah addressed a question of first impression in the Beehive State that has led to disparate results across the country: Is testimony from a preliminary hearing admissible under the former testimony exception? 

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September 8, 2017 | Permalink | Comments (0)

Thursday, August 31, 2017

Further Support For the Claim That Adnan Was On Time For Track Practice On January 13th

A couple of weeks ago, I posted an entry about Jay's narrative of events from 3:21 P.M. through 4:30 P.M. only making sense if Adnan was late to track practice, regardless of whether track practice started at 3:30 P.M. or 4:00 P.M. This was based upon (1) Jay repeatedly claiming that he was with Adnan for the 3:59 P.M. call to Patrick/Patrice before they headed to the Forest Park Golf Course; and (2) Jay repeatedly claiming that Adnan took the (three minute long) 4:27 P.M. call before heading to track practice.

This could be problematic for the State given that track coach Michael Sye remembered Adnan arriving and leaving on time for track practice on a day that only could have been January 13th:

Screen Shot 2017-08-31 at 6.55.51 AM

Given that Coach Sye didn't take written attendance, though, it is questionable whether he actually knew that Adnan arrived on time for practice. But a new comment to my prior post made me look back at the notes from Coach Sye's statement to detectives, and I think those notes provide pretty good circumstantial evidence that Adnan was on time or at least not 30+ minutes late for practice.

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August 31, 2017 | Permalink | Comments (10)

Tuesday, August 29, 2017

Supreme Court of Wyoming Finds Self-Defense Isn't a Defense to a Felony Murder Charge

A defendant meets with a victim and arranges to purchase an "eight ball” of methamphetamine." The defendant gives the victim some money for the purchase and waits to hear from him. Later that evening, the defendant goes to the victim's home to acquire the methamphetamine. A surveillance camera recording reveals that the defendant approached the victim's truck and began searching the vehicle. The victim then appeared in front of his home holding a hatchet and discovered the defendant inside his truck. The victim approached the driver's side door and attempted to open it, but it was locked. The defendant opened the passenger door and exited the vehicle. The victim went around the back of the truck and approached the defendant at the passenger door, holding the hatchet. The defendant then jumped back into the truck, picked up a knife, and fatally stabbed the victim in the ensuing scuffle. 

The defendant is charged with felony aggravated burglary and felony murder. Can the defendant claim self-defense? This was the question of first impression addressed by the Supreme Court of Wyoming in Schnitker v. State, 2017 WL 3614047 (Wyo. 2017).

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August 29, 2017 | Permalink | Comments (1)

Thursday, August 24, 2017

Supreme Court of Minnesota Finds Rules of Evidence Apply to Restitution Hearings

Do the rules of evidence apply at restitution hearings? According to the Respondent's Brief in State v. Willis, 2016 WL 9115484 (Minn. 2016), many states answer this question in the affirmative:

See, e.g., People v. Matzke, 842 N.W.2d 557, 559-60 (Mich. Ct. App. 2013); In re Delric H., 819 A.2d 1117, 1125 (Md. Ct. App. 2003) (noting that many states, including Alabama, Indiana, Kansas, New Mexico, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington and Wisconsin either complete dispense with, or relax, the rules of evidence in restitution hearings).

The Supreme Court of Minnesota, however, decided to go in a different direction.

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August 24, 2017 | Permalink | Comments (0)

Saturday, August 19, 2017

Florida Murder Trial Reveals Different Test For Impeaching Witnesses With Remote Convictions

Federal Rule of Evidence 609(b) provides as follows:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

As the recent opinion of the District Court of Appeals of Florida, First District, in Nehring v. State, 2017 WL 3361068 (Fla.App. 2017), makes clear, however, Florida has a very different rule.

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August 19, 2017 | Permalink | Comments (2)

Tuesday, August 15, 2017

If Track Practice Started at 4:00 P.M., Does it Matter Whether Adnan Was on Time for Practice?

Recently, an Undisclosed listener asked me an interesting question: If track practice started at 4:00 P.M., does it matter whether Adnan was on time for practice? This question, of course, relates to the notes from the police interview of track coach Michael Sye. Those notes indicate that Sye remembered a day toward the end of Ramdan when Adnan arrived on time for track practice that was held outside because it was the rare January day when the temperature was in the 50's. As Susan Simpson has noted, this day only could have been January 13, 1999, the day that Hae disappeared.

Of course, if track practice started at 3:30 P.M., Adnan arriving on time would be huge because it would mean that, inter alia, (1) he couldn't have made the 3:32 P.M. Nisha call; and (2) there's a very short window during which Adnan could have committed the murder and gotten back to school in time to be at track practice. But does Adnan's timely arrival at practice matter if practice started at 4:00 P.M.? I think the answer is "yes" for a few reasons. 

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August 15, 2017 | Permalink | Comments (15)

Thursday, August 10, 2017

Should a Sequestration Order Prevent a Victim-Witness From Conferring With a Victim-Witness Specialist?

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

Facially, then, Rule 615 is a rule of courtroom sequestration. If Elaine and Felicia are eyewitnesses to a murder and witnesses against the defendant at trial, defense counsel can move to have Elaine excluded from the courtroom when Felicia testifies and vice versa. The concern here is that a later witness might hear the testimony of an earlier witness and, consciously or unconsciously, tailor her testimony to the testimony of the earlier witness (e.g., Felicia might plan on saying that the day of the murder was a sunny day before hearing Elaine testify that it was a cloudy day).

Judges often expand the scope of sequestration under Rule 615. For instance, in United States v. Smith, 2017 WL 3393934 (6th Cir. 2017), the judge issed a "courtroom procedures and decorum" order under Rule 615, which stated that

[i]f witnesses are sequestered, counsel must assure that each witness called...understands that (s)he may not discuss the testimony (s)he expects to give or has given in the matter before the court...[and] should anyone attempt to discuss the testimony (s)he has given or expects to give...(s)he may not engage in such discussion.

So, what happens when a witness violates such an order by speaking to a victim-witness specialist?

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August 10, 2017 | Permalink | Comments (3)

Saturday, July 29, 2017

Nevada Case Makes Clear That Rules of Evidence Aren't Rules of DIscovery

The recent opinion of the United States District Court for the District of Nevada in Caballero v. Bodega Latino Corporation d/b/a El Super, 2017 WL 3174931 (D. Nevada 2017), is the latest illustration that the rules of evidence are not rules of discovery.*

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July 29, 2017 | Permalink | Comments (1)