EvidenceProf Blog

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

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Friday, May 29, 2015

Sentencing of Nelson Clifford Reinvigorates Argument for Passage of Sexual Character Evidence Rules

Back in February, I posted an entry about the prosecution of Nelson Clifford and how Baltimore City State's Attorney used the case as support for her argument that Maryland should adopt state counterparts to Federal Rules of Evidence 413-415. These Federal Rules are contrary to the general prohibition on the admission of propensity character evidence in that they allow for the introduction of prior acts of sexual assault and child molestation in cases involving similar allegations.

Yesterday, Clifford was finally sentencing to 31.5 years incarceration after avoiding convictions in four prior sexual assault cases. In each of those cases, Clifford claimed that the sexual acts were consensual. These and similar exonerations are why Mosby has again claimed that Maryland needs to pass versions of Rules 413-415.

Here's a link to Mosby speaking about the Clifford case, and here are some of her comments:

"Today's sentencing was achieved in the face of seemingly impossible odds. We need legislation to change our criminal justice system. We cannot afford to try a serial three, four or five times ever again. Too many lives are at stake."

If Maryland were to pass versions of Rules 413-415, evidence of prior sexual acts could be admissible, even if they didn't lead to convictions. For instance, when Clifford was charged a second time, the alleged victim from his first case likely could have testified, even though Clifford was found "not guilty" of that crime.

Some claim that such a rule is necessary to bolster the credibility of people who claim that they were the victims of sexual assault. Others, however, claim that such rules stack the deck to much and take away the presumption of innocence. So far, only about 11 states have passed counterparts to some or all of Rules 413-415.

It will be interesting to see how this new effort in Maryland is presented and received.


May 29, 2015 | Permalink | Comments (2)

Thursday, May 28, 2015

New Comments Policy

Since I started this blog in 2007, I have been proud of the fact that I've allowed all voices to be heard in the comments section. I've always approved all comments that were on point and respectful. As readers have probably noted, I've recently even approved comments that were off topic and borderline disrespectful. That changed last night when I received a deluge of disrespectful comments directed not toward me, but toward one of the subjects of my posts. As such, I took the post down and decided to deliberate today over whether to start seriously moderating comments for the first time. Given that the disrespectful comments continued today, I am regrettably instituting a new comments policy, pursuant to which I will be moderating comments. As someone who is a strong advocate of free speech, it's not a decision I make lightly, and I hope it is merely a temporary change. Thanks, and I hope that this will lead to a more respectful and productive exchange of information in the comments section.


May 28, 2015 | Permalink | Comments (23)

Chain of Fools, Take 5: Chain of Custody & The Failure to Properly Seal Blood Evidence

In Episode 4 of the Undisclosed Podcast, Susan Simpson noted a disturbing discovery regarding the blood samples used to determine the source of the stains found on the t-shirt in Hae Min Lee's car. While the seal on the blood sample for Jay was intact at the time it was tested, the blood samples for both Hae and Adnan Syed had been inexplicably broken before they were tested. As I noted on the episode, this should have formed the basis for a chain of custody objection by defense counsel.

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May 28, 2015 | Permalink | Comments (15) | TrackBack (0)

Tuesday, May 26, 2015

On March 3, 1999, Coach Sye Said That Track Practice Started at 3:30 P.M. at Woodlawn

I could immediately relate to Adnan Syed when I learned he told his attorney that he recalled attending track practice on January 13, 1999 because he informed his coach on that day that he had to lead Ramadan prayers the next day. I still vividly remember four things about running cross-country in high school in Virginia Beach in the early 1990s: (1) we had our cross-country meets at Mount Trashmore; (2) a teammate got horribly lost when trying to take a shortcut during a practice at Seashore State Park; (3) the team once watched a marathon of all three (at the time) Child's Play movies; and (4) October 7, 1992.

That year, Yom Kippur ran from sundown on October 6th to sundown on October 7th. I'm not really religious,* but I used to fast on the Day of Atonement. So did my brother. The problem was that there was a cross-country meet on October 7th. Our coach didn't want us to fast and run. Being the most competitive person in the world at the time, I made the decision to eat and run on the 7th. Being the most stubborn person in the world at the time, my brother did three completely predictable things: (1) decided to fast; (2) convinced the coach to let him run anyway; and (3) posted the fastest time on the team.

October 7th is definitely one of those days I can access at will in my mental DVR. It was a brisk fall day, in the upper 50s to lower 60s, pretty much the perfect weather for a cross-country meet. I'm also guessing it was a pretty memorable day for the cross-country coach. Virginia Beach was a place where the token Jewish kid would relay to class the story of the plight of the Maccabees each December and not exactly a hotbed of Hebrewism.

Therefore, I also wasn't surprised that track coach Michael Sye had a clear memory of Adnan being on time for track practice and talking with him about leading prayers at his Mosque during the rare warm January day in Baltimore when the indoor track team could practice outside. Given that Ramadan is a month rather than a day, I'm unsurprised that Coach Sye couldn't pinpoint the day, but, given the uniqueness of the temperature, I agree with Susan Simpson that it would have been easy enough for defense counsel to pinpoint the day as January 13th (especially given that the recollections of Adnan and Coach Sye dovetailed).

Of course, if track practice started at 4:00 P.M., Adnan arriving on time would be important but not any type of case-cracking detail. On the other hand, if track practice started at 3:30 P.M., Adnan's arrival on time on January 13th would have been a huge deal. I know that Susan Simpson has argued on her blog and our podcast that practice indeed did start at 3:30 P.M., and I mostly agreed with her. That said, I was waiting for that last key piece of information to lock everything into place. Now, I've found it.

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May 26, 2015 | Permalink | Comments (31)

Saturday, May 23, 2015

Undisclosed Podcast Research Project: Can Anyone Find a Copy of this Order From the Zach Witman Case?

I'm looking for some assistance in getting a copy of the following order from the Zachary Witman case:

Screen Shot 2015-05-23 at 8.25.35 PM

Here is a link to the full docket sheet for the case. If I'm correct, this order could be highly important to the Adnan Syed appeal. If someone is able to track down a copy, could you please send it to me at Mille933@law.sc.edu?

[Update: A helpful reader sent me a document containing this:

Screen Shot 2015-05-24 at 6.14.20 AM

So, the court quashed (disposed with the defendant's cross-appeal disfavorably before decision) sua sponte (on its own, without a motion by the State). Now, if (1) I can find the order quashing the cross-appeal; and (2) it was quashed for the reason I think it was quashed, I might really have something.].


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

Friday, May 22, 2015

The Undisclosed Explainer & Another Maryland Case With a Remand in the Interests of Justice

In today's Explainer Episode of the Undisclosed Podcast, I noted how Adnan's attorney had cited several cases in support of the claim that it is "in the interests of justice" to reopen Adnan's postconviction proceeding so that Asia McClain can testify. The two cases that I mentioned are Campbell v. State, 376 A.2d 866 (Md.App. 1977), and Curry v. State, 458 A.2d 474 (Md.App. 1983), which I blogged about here. Those aren't, however, the only cases that he cited. Another case is Wiener v. State, 430 A.2d 588 (Md. 1981), which isn't factually similar to Adnan's case but is interesting nonetheless.

In Wiener, Scott Wiener was charged with first-degree murder and first-degree rape. Wiener was represented by the Public Defender of Anne Arundel County, who also maintained a private practice. That practice was being investigated by the State Attorney General, who thought that the Public Defender was misusing state services and personnel in his private practice. As a result, the Assistant Attorney General told a law student intern to go undercover, volunteering for the Public Defender so that he could uncover any improprieties. The student was told that "(i)f there should come a time when it is necessary to choose between observing privileged material and revealing your 'cover,' you are to contact me immediately for guidance."

After Wiener was convicted, he had lengthy appeals, which ultimately resulted in the Court of Appeals of Maryland issuing a limited remand in the interests of justice. While the Assistant Attorney General claimed that the law student never disclosed to the AG's office what he learned while working for the Public Defender, the court found that the possibility of prosecutorial misconduct was enough to require further evidence and testimony on the issue.


May 22, 2015 | Permalink | Comments (3) | TrackBack (0)

Thursday, May 21, 2015

In 2001, the Court of Appeals of Maryland Rejected the Same Argument Made Against Adnan Syed's IAC Claim

Last week, I noted how the Maryland Attorney General cited one case in its Brief of Appellee in opposition to the claim that Adnan Syed received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain. That case was State v. Lloyd, 48 Md.App. 535, 540 (Md.App. 1981), and I noted in my post that Lloyd was (1) repudiated by the the Court of Appeals of Maryland in State v. Tichnell, 509 A.2d 1179 (Md. 1986); and (2) inapposite because the defendant in Lloyd confessed to the crime charged, meaning that calling an alibi witness would be suborning perjury.

The Brief of Appellee led me to wonder whether the Maryland Attorney General had cited any additional precedent in opposing a similar ineffective assistance of counsel claim raised by the defendant in In re Parris W., 770 A.2d 202 (Md. 2001). That led me to the Brief of Appellee in that case.

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May 21, 2015 | Permalink | Comments (12) | TrackBack (0)

Wednesday, May 20, 2015

Delving Deeper Into Maryland's "Interest of Justice" Standard for the Adnan Syed Remand

Given that Adnan Syed now has to prove that it is "in the interest of justice" to reopen his postconviction proceeding so that Asia McClain can testify, I thought it made sense to review some of the Maryland case law interpreting that phrase. The first case that I came across is interesting based upon somewhat of a parallel between it and the prosecution of Adnan.

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

Tuesday, May 19, 2015

Court of Special Appeals of Maryland Remands Adnan Syed's Appeal So He Can Move to Have Asia Testify

Yesterday, the Court of Special Appeals of Maryland issued an order that stayed Adnan Syed's appeal; and remanded the case to the Circuit Court for Baltimore City based upon a conclusion that these actions were "in the interest of justice." This remand will allow Adnan to move to reopen his postconviction proceeding under Section 7-104 of the Maryland Code of Criminal Procedure, which utilizes the same "in the interest of justice" standard. According to the court, "[t]his remand, among other things, will afford the parties the opportunity to supplement the record with relevant documents and even testimony pertinent to the issues raised by the appeal."

When I first saw Asia McClain's new affidavit in January, I wrote about how the Court of Special Appeals should and would remand Adnan's appeal to the Circuit Court so that Asia McClain could testify. The Court of Special Appeals has now remanded and implied that Asia will be allowed to testify, but that decision is ultimately up to the Circuit Court. For the same reasons I listed in my prior post, I think that the Circuit Court will allow Asia to testify and possibly/probably receive additional evidence. I will be recording a special minisode of the Unidisclosed Podcast that will air later this week and contain further analysis of the issue.


May 19, 2015 | Permalink | Comments (15) | TrackBack (0)

Monday, May 18, 2015

Ineffective Assistance & The Deceased Attorney: A Major Case for Adnan's Appeal

A defendant is charged with murder. He is questioned about the crime weeks after the murder and says that he has no specific recollection of the day in question and that he was likely at a certain location based on his normal routine. A female acquaintance later reminds the defendant that she saw him on the day of the murder, jogging the defendant's memory of their interaction on that day. The defendant, however, doesn't testify at trial and is ultimately convicted of murder.

After the defendant is convicted, a key witness writes an affidavit that (1) tends to exonerate the defendant; and (2) indicates that the witness was never contacted by the defendant's attorney. When the defendant appeals, claiming that he received the ineffective assistance of counsel, the key witness refuses to testify. There are claims that this refusal to testify was based upon prosecutorial misconduct. This misconduct is proven in part through additional statements made by the witness. The defendant testifies at the hearing on his ineffective assistance claim, but the hearing is more than a decade after his conviction, and his trial counsel has passed away. 

The State argues that the court should not find that the defendant received the ineffective assistance of counsel because there could have been strategic reasons for trial counsel failing to contact the key witness. The court...sides with the defendant. The case granting relief was Towns v. Smith, 2003 WL 21488333 (E.D.Mich. 2003). This decision was later affirmed in Towns v. Smith, 395 F.3d 251 (6th Cir. 2005).

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May 18, 2015 | Permalink | Comments (15) | TrackBack (0)

Thursday, May 14, 2015

The State's Brief, Take 5: More on the Duty to Independently Investigate & Interview Alibi Witnesses

Back in January, I started to compile a list of cases from around the country in which courts had found that it was (or could be) unreasonable for attorneys to fail to contact prospective alibi witnesses. These cases all had a common origin: Grooms v. Solem,  923 F.2d 88, 90 (8th Cir. 1991), which stands for the proposition that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." 

Yesterday, I posted about the opinion of the Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994), which was cited with approval by the Court of Special Appeals of Maryland (the same court handling Adnan's appeal) in Mendes v. State, 806 A.2d 370 (Md.App. 2002). Bryant contains similar language that is perhaps even more favorable to criminal defendants claiming that they received the ineffective assistance of counsel:

"[A]n attorney must engage in a reasonable amount of pretrial investigation and 'at a minimum,...interview potential witnesses and...make an independent investigation of the facts and circumstances in the case."

Courts in 76 cases from around the country have cited this language. Today, let's take a look at one of these cases in which the attorney claimed that he failed to contact alibi witnesses because he thought that they would perjure themselves.

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May 14, 2015 | Permalink | Comments (17) | TrackBack (0)

Wednesday, May 13, 2015

Volokh on US v. Pierce and Facebook Evidence

I recommend Eugene Volokh's blog post about the Second Circuit's recent ruling that the First Amendment does not preclude introduction of videos, etc., taken from a criminal defendant's Facebook page.  He correctly points out when such evidence is excluded, "[t]he reason isn’t the First Amendment as such, but rather the rules of evidence . . . ." and talks through common evidence scenarios.


May 13, 2015 | Permalink | Comments (0) | TrackBack (0)

The State's Brief, Take 4: The Duty to Independently Investigate & Interview Alibi Witnesses

Today, I am continuing my series of posts about ineffective assistance of counsel/alibi opinions cited by Maryland courts. One of these opinions is Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994), which was cited with approval by the Court of Special Appeals of Maryland (the same court handling Adnan's appeal) in Mendes v. State, 806 A.2d 370 (Md.App. 2002). Bryant isn't really factually similar to Adnan's case, but it illustrates some key principles about the need of trial counsel to interview/contact prospective alibi witnesses.

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May 13, 2015 | Permalink | Comments (15) | TrackBack (0)

Tuesday, May 12, 2015

Jay's Day: The Possible Legal Implications

Today was the premiere of Episode 3 of the Undisclosed Podcast: Jay's Day. In the episode, we discussed the possibility that significant portions of Jay's police statements were coached, meaning that the detectives taking the statements knew that those portions were false and part of their narrative rather than Jay's narrative. Is there enough evidence at this point to prove this possibility? I don't know, and I don't know that the possibility needs to be proven. It's still quite possible that the Court of Special Appeals of Maryland will remand Adnan's case to the Circuit Court so that Asia McClain can testify, which could result in a new trial. But let's assume that the Court of Special Appeals doesn't remand. That's quite possible as well. 

In that event, Adnan could file a motion to reopen pursuant to Section 7-104 of the Maryland Code of Criminal Procedure, which states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

One ground for such a motion to reopen would be Asia's second affidavit, which raises the possibility of prosecutorial misconduct. Another ground for such a motion to reopen would be the evidence that Susan Simpson has uncovered, which raises the possibility of police misconduct. I wrote about this in an entry I posted last December after Jay's Intercept Interview. The key Maryland case on this issue is Gray v. State, 879 A.2d 1064 (Md. 2005). In Gray, the Court of Appeals of Maryland found that a motion to reopen was properly denied despite a witness admitting to perjuring herself because, inter alia, "there is no indication that the officer who obtained [her] testimony believed it to be false or that the State knowingly used false testimony at trial." 

What this implies is that, if Adnan could present evidence indicating that the detectives who took Jay's statements knew them to be false, it would be grounds for reopening the postconviction proceeding and possibly a new trial.


May 12, 2015 | Permalink | Comments (39) | TrackBack (0)

Court of Appeals of Maryland Agrees With My Student & Me on Higher Authentication Standard for Social Media Evidence

I have written about how Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), should be the case that is used to support a finding that Adnan Syed received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain. Recently, Adnan's case was handed over to the Attorney General of Maryland, which submitted a Brief of Appellee that, inter alia, tried to distinguish Griffin.

It turns out that this isn't the first time that there's been an (indirect) clash between the Attorney General of Maryland and me over a case named Griffin. Instead, just last month, the Court of Appeals of Maryland had to decide whether to apply the interpretation of a case named Griffin by my student and me or the interpretation advanced by the Attorney General of Maryland. The Court of Appeals sided with my student and me; we'll see whether the same result will be reached in the Adnan Syed appeal.

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May 12, 2015 | Permalink | Comments (2) | TrackBack (0)

Monday, May 11, 2015

The State's Brief, Take 3: Disbelief as an Improper Basis for Failing to Contact an Alibi Witness

In Friday's post, I cited to a case that directly contradicted one of the findings of the Baltimore City Circuit Court in denying the petition for postconviction relief brought by Adnan Syed. Adnan, of course, has claimed, that his trial counsel was ineffective based upon failure to contact potential alibi witness Asia McClain, who has claimed that she saw Adnan at the Woodlawn Public Library until 2:40 P.M. on January 13, 1999, the same day on which the prosecution claimed that Hae Min Lee was killed at Best Buy by 2:36 P.M. 

In rejecting Adnan's petition, the Circuit Court noted that Adnan's attorney might have chosen not to contact Asia because Asia's story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan's "own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m." (page 11). In response, I discussed Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990), a case cited with approval by both the Fourth Circuit and the Court of Special Appeals of Maryland (the same court handling Adnan's appeal). You can read that post to see why this finding by the Circuit Court fails to hold water.

That still, however, leaves the other two reasons why the Circuit Court denied Adnan's petition: (1) Adnan failed to prove that Asia was a concrete alibi witness because her letters failed to state the time when she saw Adnan on January 13, 1999; and (2) "trial counsel could have reasonably concluded that [Asia] was offering to lie in order to help petitioner avoid conviction." (pages 11-12). 

I now feel like I've found an analogous case that refutes both of these conclusions: Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).

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May 11, 2015 | Permalink | Comments (37) | TrackBack (0)

Friday, May 8, 2015

The State's Brief, Take 2: The Failure to Contact/Call an Alibi Witness Based on Conflicts with the Defendant's Own Alibi

In yesterday's post, I discussed the Brief of Appellee in Syed v. State. The most important part of that post addressed what I regard to be the key holding of the Baltimore City Circuit Court in denying Adnan's claim of ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain: that Asia's story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan's "own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m." (page 11). In yesterday's post, I detailed how Adnan never claimed that he remained on the school campus from 2:15 to 3:30 P.M. on January 13th.

Let's assume for the sake of argument, however, that Adnan did claim that he remained on the school campus from 2:15 to 3:30 P.M. on January 13, 1999. Would that justify the decision of Adnan's trial attorney not to contact Asia McClain? According to a key case that has been cited by both the Court of Special Appeals of Maryland and the Fourth Circuit, the clear answer is "no."

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May 8, 2015 | Permalink | Comments (29) | TrackBack (0)

Thursday, May 7, 2015

Some Thoughts on the State's Brief in the Adnan Syed Case

Yesterday, the State of Maryland filed its Brief of Appellee in Syed v. State. In this post, I will list my thoughts about the State's arguments on Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact Asia McClain, a potential alibi witness.*

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May 7, 2015 | Permalink | Comments (29) | TrackBack (0)

Wednesday, May 6, 2015

Bearing Witness?: Anticipating 2 Arguments by the State in its Brief in the Adnan Syed Appeal

I was hoping to be able to do a post today about the State's brief in the Adnan Syed case, but the State has asked for another extension to the filing deadline. While we're all waiting for the State's brief, I thought that I would anticipate two arguments that the State could make in its brief.

You might recall that Asia McClain did not testify at Adnan's PCR proceeding. According to the defense, the reason that Asia didn't testify was a phone conversation that she had with Kevin Urick, one of the prosecutors at Adnan's trials in 1999 and 2000. According to Asia's new affidavit,

[Urick] told me there was no merit to any claims that Syed did not get a fair trial. Urick discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case, by telling what I knew about January 13, 1999. Urick convinced me into believing that I should not participate in any ongoing proceedings. Based on my conversation with Kevin Urick, the comments made by him and what he conveyed to me during that conversation, I determined that I wished to have no further involvement with the Syed defense team, at that time.

So, let's assume that the State makes the following arguments in its brief: (1) Urick's motives were impeccable, and he had no intention to transform a willing witness into an unwilling witness; and (2) the conversation with Urick was not the direct or exclusive factor in Asia's failure to testify. Would either of these arguments hold water? The clear answer seems to be "no."

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May 6, 2015 | Permalink | Comments (4) | TrackBack (0)

Tuesday, May 5, 2015

Conclusion: The Virginia and Federal Rules of Evidence

This is the last in a series of posts on my recently completed book project comparing the now-codified Virginia Rules of Evidence and the venerable Federal Rules of Evidence.  

Here is the lineup of posts:

For those keeping score at home, here are the takeaways from the series:

(1) Virginia's Facial Similarity to the Federal Rules Masks Significant Differences

The codification of the Virginia rules and adoption of the federal numbering (and often federal-ish language) is a welcome development for the Commonwealth.  But despite facial similarity, the Virginia rules regularly deviate from the federal rules, often in important ways.  I flagged one deviation in Post 2 (settlement discussions), but there are many more.  They range from the refreshing to the mundane to the maddening, but all are worth exploring.

In some areas like privilege, the Virginia rules take on questions that the federal rules sidestep.  In other areas (e.g., Rule 106), the Virginia rules clarify questions that split the feds.  And some rules, like the evidentiary morass that is Virginia Rule 2:607 (Impeachment of Witnesses), illustrate the wisdom of simpler federal rules.

(2) The Codified Rule Is Not Necessarily the Virginia Rule

The Codifiers were only authorized to codify (not alter) pre-codification case law.  But the codifiers occasionally strayed from Virginia case law.  The Virginia courts have not yet taken on an instance of codification inconsistency, perhaps because litigants have not brought any to their attention.  I flagged a big one in Post 3, a seemingly new hearsay exception.  When these deviations are inevitably litigated, will Virginia courts accept the codification or return to pre-codification case law?  It’s a cliffhanger!

(3) A Book that Chronicled All This Would Be Very Useful

Yes, indeed.  That’s what I thought when I first arrived in Virginia to teach Evidence three years ago.  Turns out to get one of these books, I had to write it myself.  You on the other hand can grab a copy for less than $20.  That’s right, one fifth the cost of viewing the Mayweather-Pacquiao fight without all the angst.

May 5, 2015 | Permalink | Comments (0) | TrackBack (0)