EvidenceProf Blog

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

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Wednesday, December 10, 2014

The Serial Podcast, Episode 8: Bad Interrogations & Bad Evidence

I've done thirteen posts

(herehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the eighth episode of the Serial Podcast: "The Deal With Jay." This episode deals with Jay, the key witness for the prosecution. In turn, this posts deals with Maryland law regarding the recording of police interrogations and the duty of the police to pursue "bad evidence." 

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December 10, 2014 | Permalink | Comments (3) | TrackBack (0)

Tuesday, December 9, 2014

Letting the Jury Lie: Supreme Court Finds Jury Impeachment Rule Precludes Inquiry Into Whether Juror Lied During Voir Dire

Today, the Supreme Court issued its opinion in Warger v. Shauers. The opinion addressed an issue that I've written about on this blog many times over the years: Does Federal Rule of Evidence 606(b) preclude the admission of juror testimony/affidavit(s) to prove that a juror lied during voir dire? So, how did the Court rule?

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December 9, 2014 | Permalink | Comments (4) | TrackBack (0)

The Serial Podcast, Episode 7: Analyzing Maryland's DNA Law & Its Application to Adnan's Case

I've done twelve posts (hereherehereherehereherehereherehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the seventh episode of the Serial Podcast: "The Opposite of Prosecution." This episode deals with the efforts of the Innocence Project at UVA in connection with Adnan's case. In turn, this post focuses on the procedural aspects of Maryland's DNA Law that the Innocence Project is trying to utilize.

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December 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

An Analysis of the Statute of Limitations in the Bill Cosby Sexual Assault Case

A woman has come forward and claimed that she was sexually assaulted by Bill Cosby in California in 1974 when she fifteen years old. Some of the discussion of this case has focused on the statute of limitations in such cases and why the woman has been able to bring her civil action 40 years later. I haven't come across an article discussing the specifics of the statute of limitations, so I thought that I'd do a post about it.

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December 8, 2014 | Permalink | Comments (1) | TrackBack (0)

The Serial Podcast, Episode 6: What Defense Counsel Could Have & Should Have Done With The Nisha Call

I've done eleven posts (hereherehereherehereherehereherehere, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the sixth episode of the Serial Podcast: "The Case Against Adnan Syed."  This episode deals with the strongest evidence that the prosecution introduced against Adnan at trial. In turn, this post primarily focuses on the strongest of those pieces of evidence: The Nisha Call.

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December 8, 2014 | Permalink | Comments (10) | TrackBack (0)

Special Counsel for Police Deadly Force Cases

My column at CNN.com suggesting a more independent approach to investigations of police deadly force cases is available at this link.

December 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

The Serial Podcast: A Timeline of Adnan's Trials and Appeals & My Best Guess at the Current Status of His Case

Yesterday, I was contacted by vox.com's  Libby Nelson, who wanted to talk with me today about the Serial Podcast and specifically Adnan's chances of winning his current appeal. That got me thinking that I didn't really know the exact legal status of Adnan's current appeal. So, I did some digging, and this post will detail my best guess as to the current status of Adnan's appeal. In turn, my interview on vox.com will deal with the likelihood that Adnan will succeed. 

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December 5, 2014 | Permalink | Comments (3) | TrackBack (0)

Thursday, December 4, 2014

The Eric Garner Case & the Legal Standards That Apply to New York Grand Juries

There's been a lot of discussion in the wake of the grand jury's decision not to indict an NYPD officer in connection with the death of Eric Garner. Having worked at an appellate court in New York for two years, I thought I would do a post laying out the legal standards applying to the case.

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December 4, 2014 | Permalink | Comments (0) | TrackBack (0)

The Serial Podcast, Episode 10: The Supreme Court's Framework for Prosecution Witness Plea Bargains

I've been getting a lot of e-mail today about a prior post of mine entitled, "The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?" It seems that the impetus is this morning's tenth episode of the Serial Podcast, "The Best Defense is a Good Defense," which touches upon this very issue. I have not listened to this episode yet, so I don't have any insight into what specifically happened at Adnan's trial. What I do know is that, in Napue v. Illinois, 360 U.S. 264 (1959), "[t]he Supreme Court established a framework for the application of Brady to witness plea agreements...." State v. Oulette, 989 A.2d 1048, 1056 (Conn. 2010). For now, I'll leave it to readers to decide where the prosecution's behavior at Adnan's trial falls within that framework.

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December 4, 2014 | Permalink | Comments (5) | TrackBack (0)

Wednesday, December 3, 2014

The Serial Podcast, Episode 5: The Admissibility & Discoverability of the Cell Tower Evidence

A woman is manually strangled, and her body is dumped in a park. The defendant, who had been in a relationship with the victim, becomes the suspect. There's nothing more than circumstantial evidence connecting the defendant to the murder, but two pieces of evidence are especially important: two cell phone calls whose pings tend to pinpoint the defendant's cell phone in the park when the victim's body was likely dumped there. The defendant is convicted. In 2014, more than a decade later, the defendant seeks post-conviction relief, alleging the ineffective assistance of counsel. Part of the claim is that trial counsel failed to contact a potential key witness who would have helped the defense. Part of the problem is that trial counsel has died. An alternate suspect emerges. DNA testing of crime scene evidence is done. The case I'm talking about is Roberts v. Howton, 13 F.Supp.3d 1077 (D.Or. 2014). The result? The defendant's conviction was reversed. 

I've done eight posts (hereherehereherehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the fifth episode of the Serial Podcast: "Route Talk."  This episode deals with the prosecution's use of cell tower pings at trial to establish the general location of Adnan's cell phone on the day of Hae's murder. In turn, this post deals with the admissibility and discoverability of evidence regarding these pings.

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December 3, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, December 2, 2014

Brave New World of Police Body Cameras

Body cameras worn by police officers have become a common policy proposal in response to the NYC Stop and Frisk litigation and recent events in Ferguson, Missouri.  A recent story from Washington State suggests some of the unanticipated consequences of such cameras.  Apparently, open records requests for police body camera footage have put such a burden on state workers that cities throughout the state have postponed plans to implement broader body camera policies.  The problem is that the footage cannot simply be copied and produced:

“Due to privacy concerns, the department can’t simply turn over video, which may show crime victims, abused children and bloody crime scenes, but must scrub it of certain information, police officials say.”

One fix is to exempt this footage from public records requests.  Something that Washington State is scrambling to do.  Other issues on the horizon are the handling of litigation-related discovery request for similar footage, something that may be harder to handle; and after that, of course, the evidentiary implications of police body-camera videos.

December 2, 2014 | Permalink | Comments (0) | TrackBack (0)

The Serial Podcast, Episode 4: How the Defense Could Have Used Jay's Police Statements at Trial

I've done seven posts (herehereherehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the fourth episode of the Serial Podcast: "Inconsistencies."  This episode deals with inconsistencies in the different versions of events relayed by Jay, the key witness for the prosecution. In turn, this post deals with the admissibility of these different accountings at trial.

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December 2, 2014 | Permalink | Comments (3) | TrackBack (0)

Monday, December 1, 2014

The Serial Podcast, Episode 3: Evidentiary Issues Related to Mr. S's Indecent Exposure(s) & Failed Polygraph

I've done six posts (herehere [now updated]here [now updated]herehere, and here [now updated]) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the third episode of the Serial Podcast: "Leakin Park." This episode deals with Mr. S, the man who discovered Hae's body in Leakin Park. In turn, this post deals with two issues: (1) the admissibility of evidence that Mr. S apparently had prior convictions for indecent exposure; and (2) the discoverability of the fact that Mr. S failed an initial polygraph exam about his discovery.

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December 1, 2014 | Permalink | Comments (1) | TrackBack (0)

Friday, November 28, 2014

The Serial Podcast, Episode 2: Did the Prosecution Properly Admit Evidence of Adnan's Religion & EMT Training?

I've done five posts (herehereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post deals with the second episode of the Serial Podcast: "The Breakup." A good deal of the episode deals with portions of Hae's diary, and I dealt with the (in)admissibility of that diary in this post. There were, however, two other portions of this second episode that dealt with interesting evidentiary issues: the prosecution's use of Adnan's religion and his training as an EMT at trial.

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November 28, 2014 | Permalink | Comments (3) | TrackBack (0)

Thursday, November 27, 2014

The Allen Charge or: Why You Don't Want Your Trial to End Just Before the Holidays

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday?

This was from a post I did on Christmas day two years ago, and it dealt with a case in which previously deadlocked jurors reached a verdict just after an Allen charge and just before that holiday. Today's post deals with a similar verdict just after three Allen charges and just before Thanksgiving...and a nasty storm.

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November 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Beast of Burden: Probable Cause vs. Preponderance of the Evidence in Ferguson

I was just watching CNN, and Chris Cuomo was talking to Paul Callan about a possible civil suit against Police Officer Darren Wilson. This prompted a discussion of the different burdens of proof at a grand jury hearing (probable cause) and a civil trial (preponderance of the evidence). Callan claimed that the burdens of proof were the same or at least virtually identical. Cuomo claimed that probable cause is a lower burden of proof than preponderance of the evidence. So, why was right?

Cuomo. Preponderance of the evidence is more likely than not, i.e., 50.1%. If Michael Brown's family sued Darren Wilson for wrongful death, they would have to prove that it was more likely than not that Wilson was liable. Meanwhile, "[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence, and has been defined as "'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion'" of the fact to be proved." People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001); see also State v. Pledger, 896 P.2d 1226 (Utah 1995) ("The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.").

Indeed, check out this excerpt from U.S. v. Agriprocessors, Inc., 2009 WL 595562 (N.D.Iowa 2009):  

The government's cross-examination of Ms. Kuehn was highly effective in that it exposed flaws in her reasoning, as well as her deep unfamiliarity with the federal grand jury process. For example, Ms. Kuehn did not even know how to define probable cause, the quantum of evidence a grand jury must possess to validly return an indictment against a target of an investigation. Ms. Kuehn erroneously equated the probable cause standard with the preponderance of the evidence standard.

-CM

November 26, 2014 | Permalink | Comments (0) | TrackBack (0)

The Serial Podcast, Episode 1: Did Adnan Receive the Ineffective Assistance of Counsel?

I've done four preliminary posts (hereherehere, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. Now, I will turn to the podcasts themselves. The first podcast is The Alibi, and it deals in large part with defense counsel's failure to investigate an alibi witness. Adnan eventually brings a claim that he received the ineffective assistance of counsel due to this failure to investigate the alibi witness. The judge denies Adnan's claim. Was this proper?

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November 26, 2014 | Permalink | Comments (4) | TrackBack (0)

Tuesday, November 25, 2014

The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?

Update: 12/4/14: For those coming to this post after listening to the 10th Episode of Serial, once you've read this post, you can check out this post for further thoughts on the issue. 

This is my fourth post on the Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. My prior posts dealt the admission of Hae's diary (diary post), a letter from Hae to Adnan (letter post), and a note Adnan allegedly wrote on the back of that letter (note post). In this post, I will address an alleged Brady violation by the prosecution in connection with its key witness.

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November 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

The Serial Podcast, Take 3: The Notes on the Back of Hae Min Lee's Letter

Earlier today, I posted my second entry about the Serial Podcast, in which Sarah Koenig investigates the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. In that post, I noted that the trial court likely erred in allowing the prosecution to admit a letter written by Hae to Adnan. As I noted, that letter stated,

....I'm really getting annoyed that this situation is going the way it is....Your life is NOT going to end. You'll move on and I'll move on. But, apparently, you don't respect my decision....I NEVER wanted to end this like this, so hostile and cold....Hate me if you will. But you should remember that I could never hate you

As I also noted, Adnan and his classmate Aisha Pittman also allegedly exchanged notes during class on the back of that letter. And while Adnan claimed on appeal that the trial court erred by admitting Hae's letter, he apparently didn't argue that his own note(s) on the back of the note should have been deemed inadmissible. According to the government's brief,

Pittman testified that the handwriting in pen on the back was Syed's, and that the handwriting in pencil was hers. (1/28/00,243). Written in pen on the back was "I am going to kill." (1/28/00,248). Pittman testified that phrase was not on the back of the letter when she was writing notes back and forth to Syed. (1/28/00, 253). On appeal, Syed does not challenge the admissibility of the back of the letter. Syed's complaint is as to the writings by the victim, Hae Lee.

I can see why Adnan wouldn't object to admission on appeal. Assuming that the government was able to authenticate  the note under Maryland Rule of Evidence 5-901(b) (prove that Adnan wrote it), it would be admissible as a statement of a party-opponent under Maryland Rule of Evidence 5-803(a)(1).

Update 12/1/14: Here are the notes on the back of Hae's letter:

Note

-CM

November 24, 2014 | Permalink | Comments (0) | TrackBack (0)

EvidenceProf Makes the ABA Journal's Blawg 100

Every year, the ABA Journal comes out with its Blawg 100, its list of the top 100 law blogs. I'm proud to say that EvidenceProf made the cut for the first time this year. Here's our entry:

NEW: Every weekday, law professors—primarily the University of South Carolina's Colin Miller—post on the very latest rulings regarding the admissibility of evidence in criminal cases and what sorts of lines of questioning should be permitted at criminal trials. He also notes differences between the federal rules of evidence and the rules of various states. Occasionally, he will comment on whether he thinks courts have reached the right outcomes in these evidence cases or note fishy behavior by prosecutors.

Thanks to the ABA Journal and to all our readers.

ABA

-CM

November 24, 2014 | Permalink | Comments (0) | TrackBack (0)