EvidenceProf Blog

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

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Wednesday, February 11, 2015

Signed, Sealed, Delivered: The Different Prison Mail Policies of Different States

As a result of yesterday's post, I started doing some research into the prison mail reading policies in various states. If you followed the Casey Anthony trial, you might recall that there was a big data dump (500+ pages) of all of the letters that Anthony sent and received while in prison. Anthony, of course, was in Florida, and the Florida Department of Corrections website states that

All routine mail sent to an inmate is opened, examined, and read by designated department staff.

In yesterday's post, I was discussing Maryland, and Maryland actually has a policy that is much more protective of an inmate's privacy. According to the Maryland Department of Corrections,

Incoming non-legal mail will be opened and inspected for contraband.

Incoming or outgoing mail will not be read or rejected unless there is probable cause to believe the contents are a threat to the order and security of the facility or that the mail is being used for illegal activity. The Director or designee may order the mail to be opened and inspected.

So, what are the prison mail policies in some other states?

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February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Undiscovered: The Broadening of the Defense's Discovery Obligations in Maryland

Discovery in a criminal case is the process by which the prosecution is forced to turn over certain evidence to the defense and vice versa. "In 2008, the rules governing discovery in Maryland were revised and the scope of discovery broadened." 8 Maryland Practice: DUI Handbook § 5:7 (2014 ed.). In particular, criminal defendants in Maryland are now required to disclose much more than they were required to disclose pre-2008.

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

Monday, February 9, 2015

Monitoring Social Media: The New Face of Criminal Investigations

A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.

From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.

“After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.

In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.”

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

Friday, February 6, 2015

Fixed Lividity/Livor Mortis: The Experts Weigh in on a Side Burial in the 7:00 Hour

This is my fifth in a series of posts about livor mortis/fixed lividity (first postsecond postthird postfourth post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the trunk of the Sentra was probably about 52 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Yesterday, I posted information about the Assistant Medical Examiner who performed the autopsy on Lee, which I thought tended to show that she would have supported both of my claims. Today, I have information from (1) pathology residents who have completed extensive rotations in forensics; and (2) a former forensic medical investigator. I think that both sources of information tend to corroborate my claims.

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February 6, 2015 | Permalink | Comments (1) | TrackBack (0)

Thursday, February 5, 2015

Livor Mortis/Fixed Lividity: Why the ME Would Have Said a Side Burial of Hae in the 7:00 Hour Was Impossible

This is my fourth in a series of posts about livor mortis/fixed lividity (first postsecond postthird post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the rear passenger compartment of a 1998 Sentra was 48 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Based on prior information I'd read and received, I already felt strongly about both of my claims. I also felt strongly that if Adnan's trial attorney had pressed the doctor who prepared the autopsy report for Lee on these two issues, she would have given responses that would have hugely helped the defense. But you never know. Well, now I do. Part of this is based upon a particular case from that doctor's past, which I will discuss today. Part of this is the responses I've gotten from people who know their forensic pathology, which I will discuss tomorrow.

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February 5, 2015 | Permalink | Comments (18) | TrackBack (0)

Wednesday, February 4, 2015

The Autopsy Posts, Take 2: Focal Hemorrhaging of the Strap Muscles & Strangulation

This is my second post about autopsies following my first post yesterday. As with my first post, this post will deal with how a medical examiner determines that a victim died as the result of strangulation. Once again I will be looking at the autopsy report for Hae Min Lee. In relevant part, it states:

Dissection of the neck revealed multiple focal hemorrhages on the superior (proximal) segments of the strap muscles involving the sternohyoid and the sternothyroid muscles....

I. Strangulation

A. Hemorrhage at the superior segment of the neck strap muscles. 

So, how do these findings support a conclusion that the victim died as the result of strangulation?

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February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

The Autopsy Posts: Manual Strangulation & Petechial Hemorrhaging in the Face/Eyes

Today, Rabia Chaudry released the autopsy report for Hae Min Lee, whose death was the subject of the Serial Podcast. Obviously, this is pretty gruesome/disturbing material, so read it at your own risk.

So, what does the autopsy tell us about Lee's death? What does any autopsy tell us about anyone's death? What is the history of the autopsy? This will be a first in a series of posts about autopsies in general and this specific autopsy. Let's start with one particular entry on Lee's autopsy report:

I. Strangulation....

E. Petechial hemorrhage of the lower left palpebral conjunctiva

So, what is a "[p]etechial hemorrhage of the lower left palpebral conjunctiva," and how did it tend to support a finding that Lee was strangled?

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

Monday, February 2, 2015

Second Lividity/Dual Lividity & Moving a Body During Partially Fixed Lividity

This is the third in a series of posts about livor mortis/fixed lividity (first postsecond post). Livor mortis is the settling of blood in the lower (dependent) portion of the body, and fixed lividity is the point at which the blood becomes permanently settled. In my second post, I made two claims: (1) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

After receiving some correspondence from experts, I now feel even better about my first claim. I noted in my prior posts that it usually takes a minimum of six to eight hours for lividity to become fixed and that it sometimes takes up to twelve hours or more. Factors that could lead to lividity becoming fixed earlier would be hotter temperatures and/or victims with certain pre-existing medical conditions. Absent either of those conditions, it would be extremely rare for lividity to become completely fixed in under six hours. In colder temperatures, fixed lividity in under six hours would be even less likely.

I haven't, however, been able to get anything in the way of corroboration (or contradiction) with regard to my second claim. I'm clear on one thing: If a body were on its side for about five hours after death before being put face down, there absolutely could be some lateral (side) lividity in addition to anterior (frontal) lividity. This is known as a few things: a "mixed" pattern of lividity, second lividity, or dual lividity. 

This post will serve two purposes. First, it's a call for information from any readers with expertise in forensic pathology or related fields. If you have such expertise, I would love to know how likely it is that there would be a "mixed" pattern of lividity in such a case, assuming that this can be quantified to some extent (e.g., very likely, likely, possible, not very likely, etc.). Second, it contains various pieces of information that I've found about moving a body when lividity has become partially fixed.

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February 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Fixed Lividity vs. a Mixed Pattern of Lividity & the Positioning of a Body After Death

Livor mortis, according to the Assistant State Medical Examiner, "is where there is a gravitational settling of the blood in the dependent portions of the body. In other words, if the body when it dies is lying on its back you will see the liver which is a sort of purple/reddish discoloration of the skin on the posterior portion." Hughes v. State, 437 A.2d 559, 565 n.4 (Del. 1981).

In this post, I will follow up on my post from yesterday on fixed lividity/livor mortis by discussing some additional cases and distinguishing "fixed lividity" from a "mixed" pattern of lividity.

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January 30, 2015 | Permalink | Comments (2) | TrackBack (0)

Thursday, January 29, 2015

Fixed Lividity/Livor Mortis & What It Means About a Body's Burial

I've been getting some questions about the concept of fixed lividity/livor mortis so I thought that I'd do a quick introductory post on the matter.

When blood settles to the bottom, it stays there. After it's there for a long time, the pattern becomes "fixed," i.e., when you press your finger into the skin, the skin doesn't blanch much. Try this on your hand right now...push your finger deep into the skin. The skin will blanch (turn white) as the blood moves away from the pressure. If the lividity pattern is fixed or close to fixed, the blood won't want to move, so the skin won't blanch much. Whether or not the pattern is fixed helps us to determine how long you've been dead.

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January 29, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Liar, Liar: Will Kansas Now Allow For Polygraph Evidence to be Admitted?

According to State v. Shively, 999 P.2d 952, 957 (Kan. 2000).

In most states polygraph evidence is either per se inadmissible in trials or is only admissible by stipulation, see United States v. Scheffer, 523 U.S. 303, 311, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), and State v. Porter, 241 Conn. 57, 124-25, 698 A.2d 739 (1997), cert. denied 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). Polygraph evidence has long been inadmissible in criminal trials in Kansas absent a stipulation by the parties. See State v. Lassley, 218 Kan. 758, 760, 545 P.2d 383 (1976).

But is that all about to change in the Sunflower State?

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January 27, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

Police Body Camera Videos as Evidence

The Washington Post published this interesting piece yesterday about the use of police body camera video as evidence in court, a phenomenon that will become increasingly common as more and more police agencies adopt body cameras.

Overall this appears to be a positive development, but there will be growing pains as departments develop protocols to preserve and produce camera footage during discovery.  For an earlier post noting the growing pains with respect to open records request, see here.

Indeed, the Post article quotes the DC US Attorney, stating:

“Our biggest concern with respect to this issue is that in order for body cameras to work effectively in the courtroom, it will be imperative for the city to devote significant resources to effectively preserve, process and produce the extraordinary volume of recordings generated by the cameras so that the government can uphold its obligations to provide these materials to criminal defendants.”

Lots of evidentiary implications as well. 

For example, doesn't the conspicuous  presence of a police body camera make a citizen's otherwise spontaneous utterance more likely to be deemed "testimonial" and therefore inadmissible under the Confrontation Clause?

 

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

Ineffective Assistance of Counsel & the Suspended/Disbarred Attorney

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an ineffective assistance of counsel claim by establishing (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice, i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Under Strickland's first prong,

a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

It is well established that the disbarment or suspension of an attorney after he represents a client does not per se lead to a finding of unreasonableness under Strickland's first prong unless the disbarment or suspension was causally related to his representation of the client. See, e.g., Padgett v. United States, 302 F.Supp.2d 593, 603 (D.S.C. 2004). But, is the presumption of reasonableness  removed or maybe even flipped if a client's attorney is subsequently suspended or disbarred based upon relatively contemporaneous misconduct? Let's take a look at the opinion of the Ninth Circuit in United States v. Soto-Lopez, 475 Fed.Appx. 144 (9th Cir. 2012).

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January 26, 2015 | Permalink | Comments (2) | TrackBack (0)

Friday, January 23, 2015

Should Judges Participate in Plea Negotiations?: Comparing Judge Rakoff's Proposal to My Own

Today, the New York Times published an op-ed by JaneAnne Murray, a Practitioner in Residence at the University of Minnesota School of Law, entitled, "Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty." I can't say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it's the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).

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January 23, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

On Your Side?: Delaware Court Deems Report by Nationwide Expert Inadmissible in Car Accident Case

Delaware Rule of Evidence 702 provides that

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Sometimes, a court precludes an expert from testifying because he's not qualified to offer opinions on a matter. For instance, a court would not allow an attorney or even a dermatologist to offer opinion testimony about the cause of a victim's death. 

Other times, a court precludes an expert from testifying because anyone would be qualified to offer opinions about a matter. This is what happened in the recent case of Knott v. Covert, 2015 WL 196730 (Del.Supr. 2015).

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January 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

Time Sensitive: Court of Appeals of Ohio Affirms Admission of Excited Utterance in Domestic Violence Case

Similar to its federal counterpart, Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Typically, this "excited utterance" exception is satisfied through evidence that a specific period of time passed between the startling event/condition and the declarant's statement (e.g., the declarant called or sent a text message 5 minutes after seeing a shooting). But, as the recent opinion of the Court of Appeals of Ohio, Eighth District, noted in its recent opinion in Cleveland v. Amoroso, 2015 WL 178418 (Ohio App. 8th 2015), circumstantial evidence of the passage of time often suffices.

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January 21, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

The Serial Podcast, One Last Thing: Reassessing Adnan's Shot at a New Trial Based on Asia McClain

[See Updates Below]

I've posted 31 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. I said my last post would be my final post on the case until the court opinion granting Adnan a new trial. But then, I learned that Asia McClain signed an affidavit, in which she claimed that Kevin Urick (one of the prosecutors at Adnan's trials in 1999 and 2000) misled her into not testifying at Adnan's postconviction proceeding (and, by implication, mischaracterized what she said to him when he testified at the proceeding). This affidavit is mentioned in an article/interview today in The Blaze. It is also the basis for Adnan's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand (Download Supplement to Application for Leave to Appeal). This affidavit could potentially have a significant impact on Adnan's chances for relief at both the state and federal levels, so I thought I'd do one final post to update my prior post.

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January 20, 2015 | Permalink | Comments (10) | TrackBack (0)

Pass Interference: AZ Court Grants New Trial Based on Prosecutorial Interference w/Defense Witness Testimony Through No Testimony Clauses

The Compulsory Process Clause of the Sixth Amendment provides that

In all criminal prosecutions, the accused shall enjoy the right....to have compulsory process for obtaining witnesses in his favor....

So, let's say that the prosecution enters into plea agreements with two potential defense witnesses. Furthermore,

Both plea agreements included the following "special term": "Defendant agrees that he/she has no exculpatory information as to any codefendant(s)." Each agreement also provided that the defendant waived all double jeopardy and statute of limitations claims, so that "[i]f the defendant fail[ed] to comply with any of the provisions or conditions of th[e] plea agreement at any time before or after sentencing," the agreement would "become void," and the state would be "free to prosecute the defendant for all charges."

Would such provisions violate the defendant's right to compulsory process? In an opinion of first impression, the Court of Appeals of Arizona, Division 2, answered this question in the affirmative in State v. Sanchez-Equihua, 326 P.3d 321 (Ariz.App. Div. 2 2014).

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January 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2015

Battle Creek Battle: Court of Appeals of Michigan Reverses Murder Conviction Based on Prejudicial Gang Testimony by Expert

According to an article in the Battle Creek Enquirer,

A Battle Creek murder conviction, overturned last month, will be appealed.

Calhoun County Prosecutor David Gilbert said Friday his office is preparing an application to appeal the case of Kaleb Hampton to the Michigan Supreme Court.

Why was the conviction reversed? According to the article.

in a 16-page opinion in December a three-judge panel of the Michigan Court of Appeals agreed that testimony about gang membership and Hampton’s alleged membership tainted the jury and exceeded what was permissible.

After reading the opinion of the Court of Appeals, I think that the reversal of Hampton's conviction will stand.

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

Friday, January 16, 2015

The Serial Podcast, Final Post: Why I'm Now Convinced That Adnan Will Get a New Trial

I've posted 30 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. This will be my final post about the case until the court opinion granting him a new trial. Yes, that's right. I'm now convinced that Adnan will be released from prison. Maybe not today, maybe not tomorrow, maybe not soon, but (possibly) for the rest of his life.

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January 16, 2015 | Permalink | Comments (30) | TrackBack (0)