EvidenceProf Blog

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

Saturday, December 3, 2016

What Effect Does the Judge Knowing the Jury Alignment Have on the Allen Charge in the Michael Slager Trial?

I've gotten a lot of questions about whether Michael Slager might have grounds for appeal if he is convicted of murdering Walter Scott, given that the judge gave an Allen charge while knowing that the jury was 11-1 in favor of conviction. The answer is "maybe."

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December 3, 2016 | Permalink | Comments (3)

Friday, December 2, 2016

The Racial Origin of the Allen Charge Used in the Michael Slager Trial

Today, in the trial of Michael Slager for killing Walter Scott, the jury was apparently deadlocked, leading  to the judge giving an Allen charge. So, what is the history of an Allen charge?

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December 2, 2016 | Permalink | Comments (1)

Wednesday, November 30, 2016

The Prior Inconsistent Statement Project, Part 9 (Kansas)

Kansas is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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November 30, 2016 | Permalink | Comments (4)

Tuesday, November 29, 2016

The Prior Inconsistent Statement Project, Part 8 (Colorado)

Colorado is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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November 29, 2016 | Permalink | Comments (0)

Monday, November 28, 2016

The Prior Inconsistent Statement Project, Part 7 (Nevada)

Nevada is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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November 28, 2016 | Permalink | Comments (1)

The Prior Inconsistent Statement Project, Part 6 (Kentucky)

Kentucky is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let's take a look at the case law.

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November 28, 2016 | Permalink | Comments (0)

The Prior Inconsistent Statement Project, Part 5 (Delaware)

Following up on yesterday's post, Delaware is a second jurisdiction where a recanted prior inconsistent statement alone might be sufficient to secure a conviction. But have the Delaware courts actually gone that far?

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November 28, 2016 | Permalink | Comments (0)

Sunday, November 27, 2016

The Prior Inconsistent Statement Project, Part 4 (Georgia)

Based on my posts from the last two days (here and here), I have identified eight possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction: (1) Colorado, (2) Delaware, (3) Georgia, (4) Kansas, (5) Kentucky, (6) Maryland, (7) Nevada, and  (8) South Carolina. In the next series of posts, I want to look at precedent from each of these jurisdictions to see exactly what they have (and have not) held on this issue.

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November 27, 2016 | Permalink | Comments (0)

Saturday, November 26, 2016

The Prior Inconsistent Statement Project, Part 3

In yesterday's post, I looked at the jurisdictions that allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury and (seemingly) without any additional requirements. In that post, I concluded that several of those jurisdictions nonetheless hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction.

In today's post, I will look at the hybrid jurisdictions, which allow for the substantive admission of prior inconsistent statements not given subject to the penalty of perjury, but with additional requirements. How many of these jurisdictions hold that such a prior inconsistent statement, by itself, is insufficient to sustain a conviction? 

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November 26, 2016 | Permalink | Comments (2)

Friday, November 25, 2016

The Prior Inconsistent Statement Project, Part 2

In my post yesterday, I identified 14 states that clearly define as "nonhearsay" all prior inconsistent statements, including those not given subject to the penalty of perjury: (1) Alaska; (2) Arizona; (3)  California; (4) Colorado; (5) Delaware; (6) Georgia; (7) Kansas; (8) Kentucky; (9) Montana; (10) Nevada; (11) Rhode Island; (12) South Carolina; (13) Utah; and (14) Wisconsin. This position is inconsistent with Federal Rule of Evidence 801(d)(1)(A), which indicates that

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

In other words, under the Federal Rule, a prior inconsistent statement is only nonhearsay if it "was given under the penalty of perjury...." Moreover, the Advisory Committee's Note to Federal Rule of Evidence 801(d)(1)(A) states that

It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate

So, under the Federal Rule, (1) a prior inconsistent statement not given under penalty of perjury is hearsay and cannot, by itself, be sufficient to prove guilt beyond a reasonable doubt; (2) a prior inconsistent statement given under the penalty of perjury is nonhearsay and could, by itself, be sufficient to prove guilt beyond a reasonable doubt, but "[f]actual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate."

Let's now turn to the 14 outlier states. Have those states spoken about whether a prior inconsistent statement not given under penalty of perjury can be sufficient to prove guilt beyond a reasonable doubt?

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November 25, 2016 | Permalink | Comments (3)

Thursday, November 24, 2016

The Prior Inconsistent Statement Project

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

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

So, how many states have a similar rule that defines prior inconsistent statements as nonhearsay only when they are given under penalty of perjury? I'm going to start compiling them in this post.

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November 24, 2016 | Permalink | Comments (4)

Friday, November 18, 2016

Justin Brown Submits a Reply to the State's Bail Arguments in the Adnan Syed Case

Today, Justin Brown filed a Reply in Support of Motion for Pretrial Release in the Adnan Syed case. This Reply answers the State's Response to Motion for Release, which itself answered Adnan's  Motion for Release Pending Appeal. The Reply clams that the State's Response was erroneous in three regards.

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November 18, 2016 | Permalink | Comments (7)

Sunday, November 13, 2016

Supreme Court Denies Cert in Bill Kuenzel Death Penalty Case, But is He Innocent?

When I did a presentation at the Media Law School at the University of South Carolina School of Law back in September, a reporter asked me to look into the case of Bill Kuenzel, a death row inmate in Sylacauga, Alabama. I was intrigued for a few reasons, including the fact that my uncle lives in Sylacauga. Beyond that, though, there was the fact that some high profile people were protesting Kuenzel's innocence, including Sam Waterston of "Law and Order" fame.

  Sylacauga_Alabama

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November 13, 2016 | Permalink | Comments (2)

Friday, November 11, 2016

Contrary to the State's Claim, Adnan Does Not Remain a Convicted Murderer & Kidnapper

Screen Shot 2016-11-11 at 8.53.52 AM

This is one of the more troubling contentions in the State's Response to Motion for Release in the Adnan Syed case, and the State backs the contention up with no citations to any statutes or case law.* Perhaps this is because it is clear that Adnan's convictions have been vacated and that he is cloaked in the presumption of innocence.

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November 11, 2016 | Permalink | Comments (10)

Thursday, November 10, 2016

The State's Response to Motion for Release in the Adnan Syed Case is Fundamentally Flawed

Today, the State filed its Response to Motion for Release in the Adnan Syed case. As Justin Fenton notes, the Motion makes clear that Charlton Howard, a retired NCIS special agent, has taken over for Thiru Vignarajah. Unfortunately for the State, a one minute glance at the Response makes clear that it is fundamentally flawed. 

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November 10, 2016 | Permalink | Comments (20)

Thursday, November 3, 2016

Lividity Evidence/Withheld Police Report Contradict State's Timeline, Don't Lead to New Trial in Ohio Case

Here's an interesting lividity/prosecutorial misconduct case out of Ohio. In State v. Montgomery, 2016 WL 6393027 (Ohio App. 2016),

On the morning of March 8, 1986, the body of Cynthia Tincher was found in her car near the intersection of Angola and Wenz Roads in Toledo, Ohio. She died from a gunshot wound to the head. That same day, her roommate, Debra Ogle, failed to show up for work. Police searched for her after finding Tincher's body, and discovered that Tincher and Ogle's apartment door was unlocked. By the end of the day, they concluded that Ogle was missing. On March 9, 1986, her abandoned car was found with the key in the ignition. Her purse was in the car.

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November 3, 2016 | Permalink | Comments (2)

Monday, October 31, 2016

Daubert's Werewolf and the Concept of "Fit" With Expert Evidence

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court replaced the old  Frye test for determining the admissibility of expert evidence with the new Daubert, pursuant to which judges serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

A less well known portion of the Court's Daubert opinion deals with the idea of "fit" as it relates to expert evidence. To establish this point, Justice Blackmon uses a werewolf analogy that some have since dubbed Daubert's werewolf.

  Werewolf

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October 31, 2016 | Permalink | Comments (1)

Monday, October 24, 2016

A Quick Post About Dr. Hlavaty's Affidavit & Adnan's Bail Motion

Today, Justin Brown filed a Motion for Release Pending Appeal in the Adnan Syed case. This Motion comes on the heels of (1) Judge Welch's order granting Adnan a new trial; and (2) the State's Application for Leave to Appeal this order to the Court of Special Appeals of Maryland. Brown's motion asks Judge Welch to release Adnan from incarceration* (1) while the State appeals Judge Welch's order and (2) in the event of a retrial. I'm going to save the bulk of my analysis for a special Undisclosed episode on the Motion, but I will highlight one aspect of the Motion in this post. 

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October 24, 2016 | Permalink | Comments (33)

Friday, October 21, 2016

D.C. Court of Appeals Abandons Frye Test, Adopts Daubert Test for Expert Evidence

In 1923, the Court of Appeals of the District of Columbia issued its opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In the wake of this federal opinion, court across the across the country adopted  the Frye test, which deemed expert evidence admissible only if was based upon a technique/technology that had general acceptance in the relevant expert community. In 1993, however, the Supreme Court created a sea change when it decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which said that judges should serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Since this decision, at least 30 states have changed from the Frye test to the Daubert test. One court, however, that had not adopted the Daubert test was the District of Columbia Court of Appeals, the "state" supreme court for D.C. But that all changed yesterday.

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October 21, 2016 | Permalink | Comments (1)

Thursday, October 20, 2016

Hiring Announcement: Concordia

Hiring Announcement: Concordia

Background: Concordia University School of Law, located in Boise, Idaho, invites applications for a tenure-track position beginning in the 2017-18 academic year.  Candidates for the position must clearly demonstrate the potential for excellence in research and teaching and have a record of (or clear potential for) distinguished scholarship.  Our goal is to recruit dynamic, bright, and highly motivated individuals who are interested in making significant contributions to our law school and its students.  Practice experience is preferred, and teaching experience is desirable.  As a Lutheran institution of higher education, we seek candidates who will support our mission and promote Lutheran values.

Special Instructions to Applicants: Questions about the position can be directed to the Chair of the Committee.  Applicants should submit a current Curriculum Vitae, a statement of faith, and a letter of interest to https://cu-portland.csod.com/ats/careersite/JobDetails.aspx?id=118.  Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position. Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process. Additional materials related to teaching excellence and samples of scholarly publications may be emailed to the Victoria Haneman, Chair of the Committee, atvhaneman@cu-portland.edu.  Review of applications will begin immediately and continued until the position is filled. Concordia University reserves the right to give preference in employment based upon religion in order to further the Lutheran objectives of the University and the Lutheran Church-Missouri Synod.

The Committee has a particular interest in hiring someone to teach Criminal Law and Evidence.  

October 20, 2016 | Permalink | Comments (0)