EvidenceProf Blog

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

Wednesday, April 13, 2016

Should Defendants Get Access to TrueAllele's Source Code?

A few days ago, the Huffington Post published a piece on the TrueAllele Casework system. According to the piece,

Cybergenetics, developer of computer automated systems and technology research data analysis, claims its TrueAllele Casework system prevents wrongful convictions by accurately matching the DNA of the perpetrator to the DNA evidence. TrueAllele’s computerized DNA interpretation system excels in situations where human forensics fail—when evidence contains a mix of three or more DNA samples. However, Cybergenetics’ refusal to share the source code behind the software proves problematic in courts. This source code, or programming code, is the key to software function. If Cybergenetics releases the code, its competitors could replicate it. But without the programming code, defense attorneys are unable to challenge the accuracy of TrueAllele. Likewise, prosecutors can’t authenticate it.

That said,

For $60,000, crime labs can buy TrueAllele software. According to Cybergenetics’ TrueAllele Process Overview Video, an analyst first assays the DNA evidence following a typical procedure such as PCR, a DNA amplification process. This DNA evidence can range from bodily fluids to skin cells. After the evidence is scanned, the computer fitted with the TrueAllele software finds the length and quantity of every data peak. Through complex, undisclosed codes and algorithms, the computer separates DNA mixtures into genotypes, solves kinship and paternity, and calculates match statistics.

Apparently, "[t]his groundbreaking technology helped convict criminals in over 500 cases in the past five years, with the majority of those convictions occurring last year." But is it reliable? 

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April 13, 2016 | Permalink | Comments (8)

Tuesday, April 12, 2016

My New Essay -- Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico

Today, I posted my new essay, Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico, on SSRN. Here is the abstract:

On January 13th, the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause unless it adopts the concept of popular sovereignty.


April 12, 2016 | Permalink | Comments (1)

Monday, April 11, 2016

Connecticut Bill Would Give Brady Victims 50% of Exoneration Funds Available to Actually Innocent Defendants

On Friday, I posted an entry about Texas denying exoneration funds to a defendant who had proven a Brady violation but (arguably) failed to prove actual innocence. This led me to revisit the dichotomy that exists in many states, with (1) actually innocent defendants receiving exoneration funds despite the fact that their convictions were by-the-books; but (2) defendants being denied exoneration funds because they can prove government misconduct but can't (quite) prove actual innocence.

Interestingly, Connecticut now has a proposed bill that would create a middle ground.

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April 11, 2016 | Permalink | Comments (6)

Friday, April 8, 2016

Texas Denies Exoneration Funds to Alfred Dewayne Brown, Subject of Pulitzer Prize Winning Articles

A piece in the Houston Chronicle touches upon an issue that I discussed in the Labor Day Minisode of the Undisclosed Podcast. In many jurisdictions, exoneration funds are only available to defendants who have proven their actual innocence. This means that, understandably, an actually innocent defendant is entitled to compensation even if he was convicted after a by-the-book prosecution. Conversely, there could be a case in which a defendant is convicted after all sorts of misconduct by the police and the prosecution and yet not entitled to compensation because he can't quite prove his actual innocence (perhaps in part because of evidence that was withheld at the time of his initial prosecution). Such is currently the case for Alfred Dewayne Brown. 

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April 8, 2016 | Permalink | Comments (6)

Thursday, April 7, 2016

The Wrongful Conviction of Keith Allen Harward & the Wrongheadedness of Bite Mark Evidence


Virginia Attorney General Mark R. Herring (D) on Wednesday asked the state supreme court to declare a former sailor [Keith Allen Harward] innocent in the 1982 rape of a Newport News woman and murder of her husband, saying DNA evidence proved he wasn’t the perpetrator.

Specifically, DNA testing was done of numerous pieces of evidence found at the crime scene, including cigarette butts and a towel the victim wrapped herself in after the attack.


The results exonerated Harward but identified another sailor from the area, Jerry L. Crotty, as the likely perpetrator, according to the attorney general’s brief to the state supreme court. Crotty died in 2006 in an Ohio prison where he was serving time for a 2002 abduction, Herring said in the brief. The chances that the DNA profile belonged to someone other than Crotty were “greater than the world population,” he said.

While good forensic will likely lead to Harward's release 33 years after he was incarcerated, it was likely bad forensics that led to his conviction.


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April 7, 2016 | Permalink | Comments (4)

Wednesday, April 6, 2016

The Similarity Between the Brady Violations in the Breakdown/Justin Chapman Case & Adnan's Case

Today, I'm recording an interview with Bill Rankin, the host of the Breakdown Podcast. The interview will be a special episode of Undisclosed that will premiere on April 18th. In the interview, we will cover a variety of topics, including Breakdown, Undisclosed, and the death penalty in Georgia. The second season of Breakdown, covering the Justin Ross Harris case, premiered recently. I think the second episode of the new season is the best episode of the podcast's entire run.

In this post, though, I want to focus upon one of the Brady violations found in the case that Breakdown covered in its first season because it is very similar to the Brady violation being alleged in Adnan's case in that it involved a misleading disclosure of a faxed document.

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April 6, 2016 | Permalink | Comments (26)

Tuesday, April 5, 2016

"No Basis in Fact": Why Thiru's Closing in the Derrick Toomer Case Required a New Trial

In yesterday's episode of Undisclosed, we talked about the questionable nature of the arguments made by Deputy Attorney General Thiru Vignarajah and how similarly questionable arguments he made in the Derrick Toomer case led to Toomer's murder conviction being thrown out. While the Toomer opinion was unpublished, I was able to obtain a copy of it. You can download it here: Download Toomer.

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April 5, 2016 | Permalink | Comments (15)

Monday, April 4, 2016

The Police Influence on the "Come & Get Me" Call & Jenn's January 26th Talk with MacGillivary

Tonight, we will drop the final Undisclosed episode about the reopened PCR proceedings in the Adnan Syed case. Tomorrow, I will do a post about two of the cases we discussed in the episode. After that, though, I will turn my attention to our Season 2 case and return to blogging about other topics until Judge Welch issues his opinion. At that point, I'm sure I'll have a number of posts about the opinion, and we'll be recording new episodes about it as well. 

How do I expect Judge Welch to rule? As I've said during the PCR episodes, my understanding of the reopened PCR proceeding is that the defense presented a very strong case for both the alibi and cell tower claims. That said, it's tough to say anything definitively without being there to see the testimony and exhibits. By way of contrast, once Judge Welch issues his opinion, I will be in exactly the same position as the Court of Special Appeals of Maryland and be able to make a much more conclusive judgment about how that court will rule.

Other than new Undisclosed content related to Judge Welch's ruling, you can expect some new episodes on other criminal justice matters. For instance, later this week, I will be recording an interview with Bill Rankin, the host of the Breakdown Podcast, which just launched its second season. Now, none of this is to say that work isn't still being done on Adnan's case. It is, but none of that work is yet at the stage where it can be presented to the court or the public. In this post, though, I will share two last nuggets.

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April 4, 2016 | Permalink | Comments (29)

Friday, April 1, 2016

What Maryland's New "Fair Likelihood" Test Means for Adnan's Appeal?

In the reopened postconviction proceedings in the Adnan Syed case, Judge Welch is deciding whether there was ineffective assistance of counsel and/or a Brady violation. With an IAC claim, the judge needs to determine whether effective performance by defense counsel would have created the reasonable probability of a different outcome of a new outcome at trial. See, e.g., Denisyuk v. State, 30 A.3d 914 (Md. 2011). Similarly, with a Brady claim, the judge needs to determine whether proper disclosure of exculpatory evidence by the State would have created the reasonable probability of a different outcome at trial. So, what exactly is a "reasonable probability"? Interestingly enough, the Court of Appeals of Maryland just clarified this definition last week.

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April 1, 2016 | Permalink | Comments (26)

Thursday, March 31, 2016

Nisha's Testimony & The Rule Against Hearsay

In response to my recent posts about Nisha's police interview and testimony (here, here, and here), I've gotten a few questions: (1) Where are the notes from Nisha's interview with the defense private investigator; (2) Were Adnan's statements about visiting Jay at the adult video store inadmissible hearsay; and (3) Were the notes from Nisha's police interview inadmissible hearsay? In this post, I will answer these questions. 

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March 31, 2016 | Permalink | Comments (13)

Wednesday, March 30, 2016

If the Police Didn't Interview Nisha Before March 15th, Why Did They Wait Until April 1st/9th?

In yesterday's post, I laid out the evidence Nisha was interviewed before Jay's second interview on March 15, 1999. Today, I will approach this argument from a different angle. If the police had not interviewed Nisha before March 15, 1999, the question becomes whether their subsequent actions make any sense.

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March 30, 2016 | Permalink | Comments (13)

Tuesday, March 29, 2016

Was Nisha Interviewed on March 13th & Did That Interview Lead to Jay's 2nd Interview?

When did the police first interview Nisha? It's one of the great unanswered questions in this case. We have one, and only one, set of notes from a police interview with Nisha. These notes indicate that the interview took place on April 1, 1999 at 6:55:

Screen Shot 2016-03-29 at 9.16.12 AM

This would seem consistent with the April 20th Progress Report I previously posted, which indicated that, on April 1st, "interviews were conducted with friends/classmates of the victim Hae Lee and suspect, Adnan Syed" at the Baltimore County Police Department's Woodlawn Precinct.*

As I noted in another post, however, there is an April 17th Progress Report indicating that, on April 9, 1999, the police (and Vickie Wash) interviewed (1) classmates Becky, Peter, and Nina at school; and (2) Nisha at her residence in Silver Spring. So, was Nisha actually interviewed at her home on April 9th instead of at the Woodlawn Precinct on April 1st?** And, if so, why does an August 23rd Amended Disclosure state that Nisha's address is unknown?

On the other hand, did the police actually interview Nisha before April 1st? I've posted before about the following entry on Cristina Gutierrez's April 18th legal services contract with Adnan:


The obvious takeaway from this entry is that Nisha was the Hindu female friend interviewed on March 13th. After all, Nisha is Hindu and we know that the police asked her questions about Islam. We also have no record of any interviews with other Hindu female friends of Adnan.

Of course, there is no record of such a March 13th interview, which means that either (1) Gutierrez got the date wrong; or (2) the notes from this interview somehow disappeared from the State's files. If we look at Adnan's call log from January 13, 1999, option 2 looks a lot more likely than option 1.   

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March 29, 2016 | Permalink | Comments (13)

Monday, March 28, 2016

Moving the Claim that the Nisha/Jay Call Occurred on January 13th to the "Implausible" Column

Today, someone tweeted me a link to a thread discussing the possibility that Adnan's January 31st call to Nisha was the real "Nisha Call." The argument in the thread is interesting, but another comment in the thread is even more interesting because it greatly increases the chances that the call during which Nisha talked to Jay took place while Jay was working at the adult video store and not on January 13th. 

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March 28, 2016 | Permalink | Comments (14)

Wednesday, March 23, 2016

Attorney From Maryland AG's Office Tries to Claim Suppressed Statements in Richard Nicolas Case Weren't Favorable

I've written before about the Richard Nicolas case. It's the case in which the State claimed that Richard Nicolas (1) drove his daughter Aja to the mall and got his picture taken with her at a photo booth at 7:00 P.M.; (2) bought tickets to the movie "Pinocchio;" (3) returned to his car with Aja and fatally shot her at about 7:45 P.M.; (4) went to the movie by himself to fabricate an alibi; and then (5) created a story about a road-raged driver fatally shooting Aja at about 10:00 P.M. 

It wasn't until years later that the defense learned that (1) witnesses at a hotel close to the site where Nicolas claimed the shooting occurred told detectives, including Detective Massey,* that they had heard a loud sound/gunshot at about 10:00 P.M.; and (2) the prosecutor had sent the medical examiner a letter after trial indicating that the lividity evidence was the whole case and that he had learned from an "unimpeachable source" that defense counsel -- Cristina Gutierrez -- did not spot the significance of the lividity evidence.

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March 23, 2016 | Permalink | Comments (4)

Tuesday, March 22, 2016

Federal Circuit Creates New Patent-Agent Privilege In Samsung Case

On March 7th, the United States Court of Appeals for the Federal Circuit issued a groundbreaking opinion: In Re Queen's University at Kingston, 2016 WL 860311 (Fed. Cir. 2016). In that opinion, the Federal Circuit created a brand new privilege: the patent-agent privilege

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March 22, 2016 | Permalink | Comments (2)

The Jacob D. Fuchsberg Law Center of Touro College Seeks Visiting Professors


Visiting Professor

Touro Law Center

The Jacob D. Fuchsberg Law Center of Touro College invites applications for Visiting Professors to teach one or more of the following courses: Civil Procedure and Torts during the fall 2016 semester and Evidence the spring 2017 semester. Teaching experience in one or more of these three courses is required. The Law Center will entertain expressions of interest for one semester and full-year appointments based on teaching experience and curricular needs.

Touro Law Center is a student-centered school conveniently across the street from the Eastern District of New York courthouse and is located only 45 miles from New York City in Suffolk County, Long Island, New York. We seek candidates with a demonstrated commitment to excellence in teaching and mentoring students, as well as a willingness to engage in the intellectual academic life of the Law Center.

Touro Law is dedicated to the goal of diversity and strongly encourages applications from women and minorities. Applications will be reviewed on a rolling basis. Applications must include a resume and statement of interest and should be mailed to Professor Meredith R. Miller, Chair, Faculty Appointments Committee, at


March 22, 2016 | Permalink | Comments (0)

Monday, March 21, 2016

"Subscriber Activity" and Applying the Analytical Gap Test to Chad Fitzgerald's Testimony

In today's "Subscriber Activity" episode of the Undisclosed Podcast, we discussed the testimony by FBI Special Agent Chad Fitzgerald. From Susan Simpson's notes, it appears as if Fitzgerald and his friend at AT&T* assumed that the AT&T disclaimer about incoming calls being unreliable for determining location only applied to calls that went to voicemail because the recipient's phone was turned off. Of course, as we also noted, at other points during his testimony, Fitzgerald seemed to indicate that there were other circumstances when incoming calls could be unreliable for determining location, such as the "check-in lag" scenario.

But let's stick for now with Fitzgerald's initial statement about the limited nature of the AT&T disclaimer. Does that testimony survive the "analytical gap" test that I mentioned during the episode?

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March 21, 2016 | Permalink | Comments (8)

Friday, March 18, 2016

The Statement of Facts for Jay's Guilty Plea & The Location of Hae's Car

I did a talk about the Adnan Syed case earlier this week, and it led me to reconsider something I had nearly forgotten.* While Jay's guilty plea was initially held sub curia, a "Statement of Facts" was eventually submitted to support that plea. Here is that Statement of Facts: Download Statement of Facts. Most of these facts are what you'd expect given the narrative and timeline that the prosecution presented at trial. For instance, the Statement of Facts indicates that

Screen Shot 2016-03-18 at 11.31.25 AM

This is very much consistent with the State's timeline, which had the Best Buy call at 2:36 P.M. and very much inconsistent with Jay's own statements and testimony, which placed that call at 3:40 P.M. or later. Of course, Jay initially said that this call came from a strip off of Edmondson Avenue and not from the Best Buy. Maybe, then, this portion of the Statement of Facts is simply a vestige of Jay's first recorded statement:

Screen Shot 2016-03-18 at 11.38.54 AM

This portion is stating what Adnan did after the Leakin Park burial, but the reference to taking Hae's car "back to Edmondson Avenue" makes no sense given that there was no initial trip to Edmondson Avenue; in the "Statement of Facts" version, the trunk pop took place at Best Buy, and Edmondson Avenue doesn't come into play until after the burial. Actually, it doesn't come into play at all.

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March 18, 2016 | Permalink | Comments (21)

Thursday, March 17, 2016

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catfished Alibi Witnesses

I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being "disciplined" is the way in which he was "disciplined" by the court. So, what were the exact facts of the case?

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March 17, 2016 | Permalink | Comments (5)

Wednesday, March 16, 2016

Proposed D.C. Local Rule Would Expand Prosecutors' Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I've noted before, has long advocated for Brady reform. If you are in favor of this local rule change, which I will describe below, you can send positive comments in writing to

John Aldock, Esq., Chairman, Advisory Committeeon Local Rules, Goodwin Procter LLP, 901 New York Avenue, N.W; Washington, DC 20001. 

Such comments must be made by March 30, 2016. Unless negative comments lead to the proposed rule being modified or withdrawn, they will be adopted as written. So, what does would this new local rule provide?

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March 16, 2016 | Permalink | Comments (4)