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?
Saturday, July 29, 2017
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.*
Thursday, July 20, 2017
Recently, I posted the draft my new article, Plea Agreements as Constitutional Contracts, on SSRN. About a week later, the Supreme Court issued its opinion in State v. King, 2017 WL 2982135 (Or. 2017). In that opinion, Oregon's highest court might have given the clearest articulation yet of the theory of plea agreements as constitutional contracts.
Tuesday, July 18, 2017
Should a Defendant Be Allowed to Submit a Vocal Exemplar Without Subjecting Himself to Cross-Examination?
Today, the Missouri Court of Appeals, Western District, issued an interesting opinion in State v. Watt, 2017 WL 3026766 (Mo.App.W.D. 2017). In Watt, Pharis Watt was convicted of driving while intoxicated. At trial, the prosecution introduced videotape evidence of Watt's conduct after being pulled over on the night in question. In response,
Watt's counsel sought to present demonstrative evidence in the form of a voice exemplar by having Watt read aloud to the jury one of his own statements from the videotape evidence, introduced during the State's case-in-chief, for the purpose of allowing the jury to assess whether Watt's speech pattern presented on the videotape should be considered as evidence of intoxication as opposed to simply his normal speaking style. Watt specifically sought a ruling that he be allowed to do so without cross-examination, claiming that the evidence would be demonstrative, rather than testimonial.
The court, however, precluded the admission of this evidence, and Watt was eventually convicted.
Friday, July 14, 2017
In Graham v. Florida, the United States Supreme Court concluded that the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Prior to Tuesday, seventeen state supreme courts have addressed a related issue: Does the Eighth Amendment permit a juvenile offender in a nonhomicide case to be sentenced to multiple fixed-term periods that, in the aggregate, total more than his life expectancy. In Tuesday, the Supreme Court of Missouri became the eighteenth state supreme court to address the issue. How did it rule?
Thursday, July 13, 2017
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).
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."
Friday, July 7, 2017
Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:
The answer to this question could very well answer the question of whether Adnan Syed will get a new trial.
Wednesday, July 5, 2017
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.
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."
Tuesday, June 27, 2017
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.
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.
Thursday, June 22, 2017
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:
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.
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:
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.
Friday, June 16, 2017
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.
Thursday, June 15, 2017
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.?
Sunday, June 11, 2017
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.
Thursday, June 8, 2017
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?
Friday, June 2, 2017
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.