EvidenceProf Blog

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

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Friday, April 10, 2015

Fair Warning, Take 2: When Is It Feasible to Give Some Warning Before Using Lethal Force Against a Suspect?

I've gotten some good feedback and questions in response to my post yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible?

Let's take a look at the opinion of the United States District Court for the District of Arizona in Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972 (D. Ariz. 2012).

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April 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

Fair Warning: Why the Officer Who Shot Walter Scott Likely Had to Give Some Warning Before Shooting

I've been asked a lot today about the shooting of Walter Scott. The topic that always comes up is the so-called "fleeing felon" rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott. In a later portion of the Garner opinion, the Court noted that

if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where  feasible, some warning has been given

In other words, even if the police officer who shot Scott could establish probable cause, he had to give some warning (e.g., "Stop or I'll shoot) before using lethal force...if such a warning was feasible. Given that the video of the shooting seems to show no such warning, the question becomes whether a warning was feasible.

The clear answer seems to be "yes." As far as we can tell, Scott did not have a weapon. He was in a small park off a dirt road, not a crowded intersection. Moreover, Scott was a 50 year-old man who seemed to be lumbering in the wake of an altercation with the officer, not a spry young man sprinting away. Given these circumstances, it seems likely that some warning was feasible, meaning that the officer's use of lethal force was unreasonable even if he somehow did have probable cause to believe that Scott posed "a significant threat of death or serious physical injury to the officer or others." See, e.g., Pablo Hernandez v. City of Miami, 302 F.Supp.2d 1373, 1377 (S.D.Fla. 2004).


April 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Checking in on the Missing Expert from Bullcoming, in Federal Prison

Confrontation Clause aficionados will recall the Supreme Court's decision in Bullcoming v. New Mexico (2011), in which the Court deemed a "forensic laboratory report certifying that [defendant] Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI" to be testimonial hearsay. The Court held that admission of the lab report against Bullcoming, absent an opportunity to cross-examine the report's author, violated the defendant's rights under the Sixth Amendment.

According to the Court, "On the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had 'very recently [been] put on unpaid leave' for a reason not revealed."

With Caylor absent, the prosecution introduced (over the defense's objection) the lab report as a business record, using the testimony of another lab employee (Gerasimos Razatos, who did not conduct the test at issue) to authenticate the report and to explain the lab's usual procedures.

The Court identified a significant problem with use of a substitute lab witness: "Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station." Also, Razatos simply could not testify about what Caylor actually did (or did not do) that was relevant to Bullcoming's criminal case.

Before discussing Bullcoming the other day with my Evidence class, I spent a few minutes investigating what happened to Caylor.  It turns out that he was sentenced to prison last year after pleading guilty to receipt of child pornography.  (I have confirmed with an employee of the New Mexico state lab at which Caylor once worked that the person who pleaded guilty is the same Curtis Caylor.)  Because the child porn arrest came some years after Caylor left his lab job, it doesn't look like he was suddenly put on leave for anything related to this particular crime. But it does add further credibility to the argument that Caylor left his job under fishy circumstances about which the Bullcoming defense team might well have wished to inquire.

So for those who stress the importance of cross-examination in the context of lab reports offered against criminal defendants, there is another anecdote that would seem to bolster that cause.

The story of Annie Dookhan, who once worked as an analyst at the Massachusetts lab at issue in Melendez-Diaz v. Massachusetts (U.S. 2009), is probably the most famous such anecdote.  Dookhan pleaded guilty in 2013 to dozens of crimes related to tampering with evidence at the state drug lab and was sentenced to three-to-five years' imprisonment. Massachusetts officials, as well as defense lawyers, are still dealing with the aftermath of the ensuing scandal.

  - Ben Trachtenberg

April 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Per Se Pro Se: 5th Circuit Finds No Problem With Admission of Former Testimony Against Defendant Denied Right to Proceed Pro Se

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony [by a now "unavailable" declarant] 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.

Assume that (1) a witness for the prosecution testifies against a defendant at a first trial, resulting in his conviction; (2) the defendant later has his conviction reversed based upon a finding that he was denied his right to proceed pro se; and (3) the witness for the prosecution dies before the defendant's second trial. Should the prosecution be able to present the deceased witness's testimony from the first trial at the defendant's second trial pursuant to Federal Rule of Evidence 804(b)(1)?

This was the question addressed by the Fifth Circuit in its recent opinion in United States v. Richardson, 2015 WL 1283694 (5th Cir. 2015). I disagree with its conclusion.

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April 8, 2015 | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 7, 2015

No Harm, No Foul?: 8th Circuit Finds No Problem With Judge Giving Prosecution a Helping Hand

When I was a law student, every student teamed up and went against another team in mock trial simulations. In my wife's trial, her partner and she were defense counsel. After the "prosecutors" in their case rested, my wife and her partner moved for a directed verdict based on failure to present evidence from which a reasonable juror could find guilt beyond a reasonable doubt on each element of the crime charged. The judge in the case said he would have granted the motion in an actual case and asked the "prosecutors" why they hadn't presented more evidence. Their response: "We were waiting to introduce that evidence during the defense case." The judge allowed the "prosecutors" to reopen their case as a learning experience but told them that he wouldn't have given them the same dispensation in an actual case. 

In the recent case, United States v. Never Misses a Shot, 2015 WL 1427370 (8th Cir. 2015), however, the judge gave just such a dispensation to the prosecution. Was this proper?

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April 7, 2015 | Permalink | Comments (2) | TrackBack (0)

Monday, April 6, 2015

Play It Again: Court of Appeals of Minnesota Finds No Problem with Replaying Victim's Statement During Deliberations

Similar to its federal counterpartMinnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

While a "recorded recollection" cannot be introduced as an exhibit by the proponent, can it be replayed for the jury during deliberations? According to today's opinion by the Court of Appeals of Minnesota in State v. Johnson, 2015 WL 1514071 (Minn.App. 2015), the answer is "yes." I disagree.

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April 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

Texas Two Step: Texas Changes Rule Regarding Impeachment Through Prior Inconsistent Statements

Texas recently changed its rule regarding impeachment of witnesses through prior inconsistent statements. Texas Rule of Evidence 613(a) reads as follows:

(a) Witness’s Prior Inconsistent Statement.

(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:

(A)  the contents of the statement;

(B)  the time and place of the statement; and

(C)  the person to whom the witness made the statement.

(2)  Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3)  Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.

(4)  Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.

(5)  Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2). 

Conversely, Texas Rule of Evidence 613(a) used to read as follows:

In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

So, how is this a change from prior Texas practice?

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April 3, 2015 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 2, 2015

The Autopsy Posts: The Fluids Found In & Around Hae Min Lee's Nose/Mouth Were Not Blood

A few weeks ago, I did a post about pulmonary edema and sputum. As I noted,

Pulmonary edema is a condition caused by excess fluid in the lungs. This fluid collects in the numerous air sacs in the lungs, making it difficult to breathe....

If a person has a severe pulmonary edema, she might have a pink frothy sputum, i.e., mucous material from the lungs. In rare cases, this sputum will come out of the person's mouth and/or nose, with the sputum appearing pink based on the combination of blood, mucus, and other watery fluids.

I wrote this post based on the prosecution of Adnan Syed for murdering his ex-girlfriend, Hae Min Lee. The prosecution's theory of the case was that Adnan strangled Hae in her Sentra, resulting in a pulmonary edema and sputum coming out of of Hae's nose and mouth while she was still in the passenger compartment of her Sentra. According to the prosecution, Adnan then wiped the sputum that had come out of Hae's nose and mouth, which explained a stained t-shirt that was crumpled up next to the driver's seat in the Sentra. This t-shirt was one of only two pieces of physical evidence tending to establish that Hae was strangled in her Sentra, with the other being a "broken" windshield wiper or turn signal lever.

Given how important this edema/sputum/t-shirt theory was for establishing that Hae was killed in her car, you would expect that fluids found in around Hae's mouth and nose would have been tested by the State. And they (apparently) were. From the list of "Photo Exhibits of State":

Screen Shot 2015-04-02 at 1.37.39 PM

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April 2, 2015 | Permalink | Comments (3) | TrackBack (0)

Wednesday, April 1, 2015

Can a Plaintiff Ever Win a Libel/Slander/Defamation Claim Based on Statements Made on April 1st?

I've always wondered whether a plaintiff could bring a successful libel/slander/defamation claim based upon statements made on April 1st, i.e., April Fools' Day. In looking at some case law, it seems that such a claim can be successful but is difficult to prove. For instance, consider the opinion of the Superior Court of Connecticut in Victoria Square, LLC v. Glastonbury Citizen, 891 A.2d 142 (Conn.Super. 2006).

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April 1, 2015 | Permalink | Comments (1) | TrackBack (0)

Searching for "Takera," the Other Last Person to See Hae Min Lee Alive

If you've been following the Serial Podcast and its aftermath, you know the central role that Debbie played in the early stages of the investigation into the death of Hae Min Lee. Debbie was a mutual friend of both Hae and Adnan Syed, Hae's ex-boyfriend who was eventually convicted of murdering her. Debbie gave an initial statement to police on January 28, 1999, in which she stated that she remembered talking to Hae at about 3:00 P.M. on January 13, 1999, with Hae saying that she was going to see her new boyfriend Don at the mall. Later, on March 26, 1999, Debbie gave a second police statement, in which she claimed that, on January 13, 1999, (1) she saw Adnan at the guidance counselor's office at "about 2:45;" and (2) she saw Hae between 2:45 and 3:15 in the lobby at Woodlawn High School.

In the early days of the investigation into Hae's death, Debbie was implicitly presented to the public as the last person who saw Hae alive. Here's the article about Hae going missing, here's the article about Hae's body being found, and here's the article about Adnan being charged. All of them list Hae as being last seen at about 3:00 P.M. at Woodlawn, with Debbie clearly being the unnamed "last person" to see her alive. It turns out, however, that, according to Debbie herself, there was a second "last person" to see Hae alive, and she might just be the key to cracking this case, from both a legal and factual perspective.

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April 1, 2015 | Permalink | Comments (30) | TrackBack (0)

Tuesday, March 31, 2015

Undiagnosed: Court of Appeals of Indiana Finds Statements to Doctor Inadmissible Under Medical Hearsay Exception

Yesterday, I was teaching my students Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

In response, a student wanted confirmation that the proponent of such a statement had to satisfy both subsections (A) AND (B). I responded that both subsections did in fact need to be satisfied, prompting a discussion of cases in which subsection (B) but not subsection (A) could be satisfied. I will provide an example of such a case in this post. I then, however, tried to think of a case in which subsection (A) but not subsection (B) could be satisfied. In other words, could there ever be a case in which a patient makes a statement that is reasonably pertinent to diagnosis or treatment but that is not describing medical history, symptoms, sensations, or their inception or cause? I don't know.

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March 31, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, March 30, 2015

Woodlawn Only Had 8 Full School Days From December 24, 1998-January 24, 1999

Krista had provided me with the following Woodlawn schedule from late 1998-early 1999. I've filled in a few facts that we know, such as Woodlawn's wrestling match against Randallstown on January 5, 1999. As we learn more facts, we might be able to flesh out this schedule even more. This schedule is interesting because we have several people who have memories of seeing Hae Min Lee and/or Adnan Syed on certain days, and this schedule shows the days when these encounters could (and couldn't) have occurred:

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March 30, 2015 | Permalink | Comments (19) | TrackBack (0)

Friday, March 27, 2015

The Possible Significance of the Missing Ignition Collar in Hae Min Lee's Nissan Sentra

From the list of the list of Photo Exhibits of State in the trial of Adnan Syed for murdering Hae Min Lee:

Screen Shot 2015-03-27 at 11.40.49 AM

As you can see, the second photograph described on this page is a "Close-up of Sentra ignition - ***ignition collar missing." So, what is an ignition collar, and what significance could the fact that it was missing have with regard to the death of Hae Min Lee?

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March 27, 2015 | Permalink | Comments (4) | TrackBack (0)

Thursday, March 26, 2015

Sequestered in Memphis: Can Trial Counsel Be Excluded From the Courtroom in Ineffective Assistance Cases?

Similar to its federal counterpartTennessee Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

So, pursuant to this rule, may a criminal defendant move to exclude his trial attorney from the courtroom when he has brought a claim alleging the he received the ineffective assistance of counsel? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Tennessee in Page v. McAllister, 2015 WL 1298652 (E.D.Tenn. 2015).

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March 26, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2015

Federal Lawsuit Includes Claims Against Baltimore Criminalist for Mischaracterizing Gunshot Residue Evidence

On Monday, Sabein Burgess filed a lawsuit in the United States District Court for the District of Maryland against several defendants, including Daniel Van Gelder. Van Gelder, you might recall, is the Criminalist who performed a fracture analysis of the windshield wiper lever from the Nissan Sentra belonging to Hae Min Lee. In 2014, Burgess had his 1995 conviction for murdering Michelle Dyson reversed based upon a sworn affidavit by Charles Dorsey, who admitted to shooting Dyson. But, if Dorsey killed Dyson, how was Burgess convicted? 

According to Burgess, he came home to find Dyson shot and cradled her body. At trial, Van Gelder testified that Burgess's hands were swabbed for gunshot residue and that "'[e]ither [Burgess] fired the gun or his hand was right close to the gun.'" Van Gelder "dismissed defense suggestions that the residue on Burgess's hands had transferred from Dyson as he cradled her."

Burgess's lawsuit contends that there were two serious problems with this testimony.

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March 25, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Ontario Court of Justice Extends Spousal Privilege to Common Law Partnerships

Back in 2013, I wrote about a Kentucky case in which a woman sought to invoke Kentucky's spousal privileges because she was in a same-sex civil union. As support for her claim, the woman cited a Vermont case reaching such a conclusion, but the court rejected her argument, concluding that, "at a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married." 

Conversely, late last month, the Ontario Court of Justice, reached the opposite conclusion in R. v. Lomond.

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March 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2015

Some Quick Thoughts on Adnan Syed's Brief of Appellant

Today, Adnan Syed filed his Brief of Appellant to the Court of Special Appeals of Maryland, seeking a new trial based upon the claim that he received the ineffective assistance of counsel (IAC). When I started writing about this case, the only live IAC claim was Adnan's claim that his trial counsel was ineffective based on failing to ask the State about a possible plea bargain despite his repeated requests.  At the time, I gave an interview to vox.com in which I noted that Adnan was almost certain to be unsuccessful on this claim; I then followed up that interview with a blog post in which I went into more detail regarding why I thought this IAC claim would be unsuccessful. Quite simply, the law was not on Adnan's side.

But then, in January, Asia McClain came forward with a new affidavit in which she stated that she stood by her claim that she saw Adnan in the library on January 13, 1999 and that she was dissuaded from testifying at Adnan's PCR hearing by one of the prosecutors at Adnan's initial trial(s). This led to Adnan filing a Supplement to his application for leave to appeal and the resuscitation of Adnan's claim that his trial counsel was ineffective based on her failure to contact Asia McClain as a potential alibi witness. With this claim revived, I now reached the conclusion that Adnan's appeal would be successful. Quite simply, this time, the law was on Adnan's side.

In particular, there was a Court of Appeals of Maryland case, In re Parris W., 770 A.2d 202 (Md. 2001), in which Maryland's highest court found that the constructive failure of an attorney to call alibi witnesses constituted the ineffective assistance of counsel. Moreover, the court in Parris W. cited several cases from across the country, all of which stood for the proposition that failure to contact an alibi witness constituted the ineffective assistance of counsel. Many of these cases are cited in Adnan's appellate brief, including Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), a case involving the same courts that handled Adnan's trial and appeal.

Some further research led me to find 50 cases from around the country in which courts deemed the failure to contact or investigate a potential alibi witness to be unreasonable or potentially unreasonable under circumstances similar to the circumstances in Adnan's case. Conversely, I found no cases in which the opposite conclusion was reached. I am now up to 70 such cases, which are listed below the fold. It will be interesting to see if the State is able to find any cases reaching the opposite conclusion when it files its own brief next month.

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March 23, 2015 | Permalink | Comments (7) | TrackBack (0)

Woodlawn's 1998/1999 Schedule & Its Bearing on the Statements & Testimony by Debbie

Courtesy of Krista, here is the Woodlawn High School schedule from 1998-1999:

Woodlawn Schedule

According to Krista, this was the schedule for every student at Woodlawn, and the afternoon announcements were either right before or right after the final bell at 2:15 P.M. So, what does this schedule tell us about the statements and testimony of Debbie?

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March 23, 2015 | Permalink | Comments (18) | TrackBack (0)

Thursday, March 19, 2015

Taking Shorthand: Court of Appeals of North Carolina Finds No Problem With Lay Opinion Testimony in Rape Trial

Similar to its federal counterpartNorth Carolina Rule of Evidence 701 provides that

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

That said, North Carolina courts "have long recognized that Rule 701 does not render 'shorthand statement[s] of fact' inadmissible." So, what exactly is a shorthand statement of fact? Let's take a look at the recent opinion of the Court of Appeals of North Carolina in State v. Pace, 2015 WL 1198474 (N.C.App. 2015).

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March 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Krista Comments on Adnan Asking Hae Min Lee For a Ride on January 13, 1999

One of the most objective figures with a connection to the death of Hae Min Lee is Krista, a friend to both Lee and Adnan Syed, who was convicted of Lee's murder in 2000. Krista gave a statement to detectives on March 1, 1999, the day after Adnan was arrested. Later, she testified at Adnan's first and second trials. Finally, a snippet of Sarah Koenig's interview with her was played in the second episode of the Serial Podcast. As would be the case for anyone in any of these types of circumstances, Krista didn't have complete control over how her thoughts were communicated or contextualized. Given her objectivity and importance to trying to understand the horrible tragedy that occurred on January 13, 1999, I thought it made sense to provide a forum for Krista to be able to fully and fairly explain her position about what she remembers from that day. What follows has been approved by Krista herself:

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March 18, 2015 | Permalink | Comments (9) | TrackBack (0)