EvidenceProf Blog

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

Thursday, May 12, 2016

Detective Ritz and the Wrongful Conviction of Malcolm Bryant

Yesterday, Malcolm Jabbar Bryant was released from prison after serving seventeen years of a life sentence for the murder of 16 year-old Toni Bullock in Baltimore City. The lead detective on the case was William Ritz, one of the lead detectives on Adnan's case. There was one* eyewitness to the murder: Tyeisha Powell. Based on the description that Powell gave of the perpetrator, the Baltimore Police created a composite sketch, which Ritz posted, along with the enticement of a Metro Crimestoppers reward, for information leading to an arrest/indictment:

Screen Shot 2016-05-12 at 10.47.34 AM


Ritz began getting calls after the distribution of the composite....The police then began “accumulating names and eliminating those individuals as suspects.”...Ultimately, a photographic array was prepared and on December 1, 1998, Powell identified [Bryant]'s photograph.

So, where did things go wrong, and how were they eventually set right(ish)?

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May 12, 2016 | Permalink | Comments (17)

Wednesday, May 11, 2016

Motion to Reopen: Musings on "The Good Wife" Finale

The final episode of "The Good Wife" aired on Sunday night. I rank the show as the best legal TV series of all time, with the Michelle and Robert King production getting a slight nod over various iterations of the "Law & Order" franchise. As with "Buffy the Vampire Slayer," the show might have ended stronger after five seasons and a climactic death (Buffy/Will Gardner). But, in both cases, there was a lot to like about their sixth and seventh season denouements (e.g., "Once More, with Feeling;" bond court).

Good Wife

Continuing this theme, Sunday night's finale was almost a coda, with Alicia scrambling to find precedent to reopen her husband's corruption trial and receiving counsel from her deceased former colleague.

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May 11, 2016 | Permalink | Comments (4)

Tuesday, May 10, 2016

NJ Court Remands Murder/IAC Case So Alibi Witness Who Didn't Testify at 1st PCR Hearing Can Testify

In State v. Jackson, 2016 WL 2350517 (N.J.App. 2016), Amir Wilkins was fatally shot near the intersection of 18th Avenue and Alexander Street in Newark, New Jersey on March 8, 2004 between about 10:20 and 10:35 P.M. Terrell Jackson was charged with his murder and convicted despite testifying that he was at his friend Yakiemah Burks's sister's apartment at the time of the shooting. Thereafter,

In March 2011, defendant filed a PCR petition alleging he was denied the effective assistance of counsel because his trial counsel failed...to subpoena Burks as an alibi witness. In support of his petition, defendant submitted a November 1, 2011 affidavit from Burks in which she asserted the following: on March 8, 2004, defendant was with her from 6:00 p.m. to "approximately 10:30 p.m. and 11:00 p.m."; in June 2006, following defendant's trial but before he was sentenced, she wrote a letter to the court advising that she had just learned about the charges against defendant and knew that he did not commit the crimes resulting in Wilkins's death; defendant was with her at the time Wilkins was shot; she had been willing to testify at defendant's trial; and she was never contacted or subpoenaed by defendant's counsel.

Burks, however, did not appear at the initial PCR hearing.

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May 10, 2016 | Permalink | Comments (0)

Monday, May 9, 2016

Court of Appeals of Kentucky Finds Alford Plea Admissible in Insurance Dispute

A few weeks ago, I did a post about the Supreme Court of Minnesota finding that an Alford Plea was inadmissible in a subsequent civil trial. In its recent opinion in Eberle v. Nationwide Mutual Insurance Co., 2016 WL 2609311 (Ky.App. 2016), the Court of Appeals of Kentucky reached the opposite conclusion.

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May 9, 2016 | Permalink | Comments (0)

Friday, May 6, 2016

Tennessee Case Reveals Recent Changes to Volunteer State's Dying Declaration Exception

The opinion of the Court of Criminal Appeals of Tennessee in State v. Crockett, 2016 WL 769890 (Tenn.Crim.App. 2016), contains a pretty straightforward application of the dying declaration exception to the rule against hearsay. The case, however, also noted two important recent additions to the exception and one remaining question.

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May 6, 2016 | Permalink | Comments (1)

Wednesday, May 4, 2016

Court of Appeals of Maryland Throws Out Sexual Abuse Convictions Based on Failure to Satisfy Corpus Delicti Rule

The Latin term “corpus delicti” translates into the “body of the crime” and refers to “[t]he fact of a transgression; ACTUS REUS.”... The corpus delicti for the crime of sexual abuse of a minor, pursuant to § 3-602 of the Criminal Law Article, is evidence of sexual molestation or exploitation of a minor. The “corpus delicti rule” is a “doctrine that in order to secure a conviction, the prosecution must establish the corpus delicti with corroborating evidence. [] The doctrine prohibits the prosecution from proving the corpus delicti based solely on a defendant’s extrajudicial statements.”

This quote comes from today's opinion by the Court of Appeals of Maryland in Grimm v. State. Because the State failed to satisfy the corpus delicti rule, the Court reversed Grimm's conviction. Do you agree?

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May 4, 2016 | Permalink | Comments (11)

Monday, May 2, 2016

Colorado Court Finds Prosecutor Erred By Speaking to Jury in 1st Person As If He Were Victim During Opening

For a substantial part of his opening statement, the prosecutor assumed the identity of the victim. He began by saying, “My name is [the victim]. I was 55 years old when I was ambushed, murdered and set up by Traci Adams and Mark Manyik, the Defendant.”

The prosecutor then described the victim's relationship with Adams, the end of the relationship, and the events leading up to the shooting, all in the voice of the victim. Regarding the shooting, he said, “I see Mark raise a shotgun, this 12–gauge shotgun. I look at Mark. I'm scared. I say to him, ‘Mark, please don't shoot.’ I didn't stop him. He fired one single 12–gauge round directly into my belly. I fall backwards....”

The prosecutor went on to narrate, as the victim, Manyik's and Adams' actions after the shooting, including speaking with the 911 operator and taking the victim's cell phone. In the same way, the prosecutor described the police arriving and the victim's death:

I can hear sirens arriving.... I'm still barely alive, but not really conscious.... [The] [d]eputy eventually comes up to my near lifeless body.... He calls Flight for Life.... A few minutes later the helicopter lands and the medical staff and the police get me into the helicopter, take me to the hospital. Somewhere between that flight from the Manyik residence to the hospital I die.

The prosecutor then switched to his own voice and point of view, which he used for the remainder of his opening. At no point did Manyik object to the opening statement.

This language comes from the recent opinion of the Colorado Court of Appeals in People v. Manyik, 2016 WL 1165332 (Colo.App. 2016). So, were the prosecutor's actions objectionable? And should the defendant have been given a new trial even in the absence of an objection?  

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May 2, 2016 | Permalink | Comments (8)

Thursday, April 28, 2016

Supreme Court of Kentucky Finds the State Does Not Adopt Statements of Facts in Plea Agreements

Similar to its federal counterpart, Kentucky Rule of Evidence 801(d)(2)(B) excludes from the rule against hearsay a statement offered against a part if it is

A statement of which the party has manifested an adoption or belief in its truth

Imagine, for instance, that Dan, Carl, and Ed are having a conversation, with Ed saying to Carl, "Dan just shot Vince," and Dan responding, "He had it coming." Under Rule 801(d)(2)(B), a court would conclude that Dan adopted Carl's statement, meaning that it would be admissible against him at his subsequent trial for murdering Vince.

But what if multiple people are alleged to have participated in a crime? For instance, imagine that the State believes that Dan and Carl killed Vince together and reaches a plea deal with Carl that contains a statement of facts. By subsequently presenting that deal to the judge, has the State manifested an adoption or belief in the truth of Carl's statement of facts, meaning that Dan could introduce that statement if it helps him in his subsequent murder trial? That was the question addressed by the Supreme Court of Kentucky in its recent opinion in Lewis v. Commonwealth, 475 S.W.3d 26 (Ky. 2015).

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April 28, 2016 | Permalink | Comments (3)

Wednesday, April 27, 2016

Court of Special Appeals of Maryland Affirms Woodlawn Murder Conviction Despite Detective Misstating His Cell Tower Ping Expert Experience

Today, the Court of Special Appeals of Maryland issued its opinion in Brown v. State, which involved a murder that took place in the Woodlawn neighborhood of Baltimore County. The case also involved cell tower pings, and a detective misstating his experience as an expert witness on the topic.

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April 27, 2016 | Permalink | Comments (4)

Tuesday, April 26, 2016

Should Alford Pleas be Inadmissible in Subsequent Civil Trials?

I've done several prior posts on Alford pleas (see, e.g. here). An Alford plea is a guilty plea in which a defendant does not admit guilt but acknowledges that the State has sufficient evidence that could lead to a jury finding him guilty beyond a reasonable doubt.  As you can see from this video clip, an Alford plea is very similar to a "guilty" plea, with the defendant simply pleading guilty "pursuant to North Carolina v. Alford." But is an Alford plea dissimilar from a guilty plea in at least one key regard? And should it be? That was the question the Supreme Court of Minnesota answered in its recent opinion in Doe 136 v. Liebsch, 872 N.W.2d 875 (Min. 2015).

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April 26, 2016 | Permalink | Comments (5)

Monday, April 25, 2016

Is Shaken Baby Syndrome Junk Science?

The case of Trudy Muñoz Rueda is a tragic one, no matter how you slice it. Munoz ran a daycare in Fairfax, Virginia. "At a widely watched trial, 45-year-old Trudy Muñoz Rueda was accused of violently shaking a 5-month-old in her home day care in 2009, causing serious brain injuries." The

doctors who examined the child found three things: blood under his skin, bleeding inside the eyes and swelling of the brain.  Those symptoms have – for years – prompted a diagnosis of shaken baby syndrome.

At trial,

Defense attorneys had argued that Trudy E. Munoz Rueda had not shaken the baby and that the concept of "shaken baby syndrome" was "junk science" that has not been proven by scientific evidence. The lawyers on both sides of the courtroom launched a battle of national experts on the issue, with the jury taking only five hours to side with those who say it is certainly possible to severely injure an infant merely by shaking the child.

But are those experts right?

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April 25, 2016 | Permalink | Comments (12)

Friday, April 22, 2016

Virgin Islands Adopts Daubert Standard in Trip & Fall Case

The Daubert test for determining the reliability/admissibility of expert evidence is the standard applied under the Federal Rules of Evidence and at least 30 state evidentiary codes. Based upon the recent opinion of the Supreme Court of the Virgin Islands in Antilles School, Inc. v. Lembach, 2016 WL 948969 (V.I. 2016), we can now also add the U.S. Virgin Islands to Daubert the column.

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April 22, 2016 | Permalink | Comments (1)

Thursday, April 21, 2016

A Brief Look at the Justin Wolfe Case

In a comment to yesterday's post, "Gavin" asked me to touch upon the Justin Wolfe case. Serial listeners might recall that this case was mentioned in Episode 7 of Season 1. Specifically, Adnan mentioned the Wolfe case to Sarah Koenig, "kind of in passing," prompting Koenig to track down Deirdre Enright, who had worked on his appeal.

It's tough to distill the Justin Wolfe case into a single post, factually or legally speaking. Therefore, I will just focus on one particular aspect.

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April 21, 2016 | Permalink | Comments (10)

Wednesday, April 20, 2016

Indiana Case Involves Intersection of Lividity and Brady Doctrine

A case out of Indiana shows how lividity and the Brady doctrine can intersect in a given case. In Prewitt v. State, 819 N.E.2d 393 (Ind.App. 2004), Nancy Prewitt was convicted of the murder of her husband, William Davies. The State's theory of the case was that Prewitt fatally shot Davies inside their home. However,

just prior to trial, Rodney Cullison went to Trooper Eslinger's house, where he told Trooper Eslinger that he had heard that [Prewitt's son Matthew] Hunter and a friend had moved Davies's body from the outside to the inside of the residence on the night of the death. Detective Hoskins then apparently told Trooper Eslinger that such evidence was inconsequential because Davies “died inside the house, was shot inside the house.” 

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April 20, 2016 | Permalink | Comments (26)

Tuesday, April 19, 2016

Court of Criminal Appeals of Texas Sets Aside Murder Conviction After Medical Examiner Changes Cause of Death

On Friday, I posted an entry about a 2014 California law that allows defendants to receive new trials when expert witnesses recant their testimony. As the recent opinion of the Court of Criminal Appeals of Texas in Ex Parte Robbins, 478 S.W.3d 678 (Ct.Crim.App.Tx. 2016), makes clear, the Lone Star state enacted a similar law in 2013.

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April 19, 2016 | Permalink | Comments (3)

Monday, April 18, 2016

Court of Appeals of Texas Distinguishes Between Failure to Call & Failure to Contact Alibi Witnesses

In its recent opinion in Russi v. State, 2016 WL 1444040 (Tex.App. 2016), the Court of Appeals of Texas, Houston did a nice job of distinguishing between when behavior connected with a potential alibi witnesses is and is not unreasonable for purposes of establishing a claim of ineffective assistance of counsel.

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April 18, 2016 | Permalink | Comments (5)

Friday, April 15, 2016

California Law Allows For New Trials When Experts Recant Their Testimony

In 2014, California enacted a law that I think should serve as a model for legislation in the other 49 states.

“Previously, [California] law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions,” said Senator Leno, D-San Francisco. “This law clarifies that false evidence provided by such an expert witness may be considered when proving a person’s innocence.”

Unsurprisingly, the law came about due to a case with bad bite mark evidence.

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April 15, 2016 | Permalink | Comments (1)

Thursday, April 14, 2016

Pennsylvania's Seemingly Unwarranted Restriction on the Dying Declarations Exception

Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for 

A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

As the language of this exception makes clear, a "dying declaration" is only admissible if it relates to the cause or circumstances of what the declarant believes to be his imminent death. But is the exception even more limited than that? This seems to be the suggestion of the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Washington, 2016 WL 1276012 (Pa.Super. 2016).

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April 14, 2016 | Permalink | Comments (5)

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)