EvidenceProf Blog

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

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Wednesday, January 14, 2015

The Serial Podcast: What I Think Adnan's Attorney Told Him About Asia & How it Could Lead to a New Trial

I've posted 29 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. One of the issues that Adnan raised in his Petition for Post-Conviction Relief was that his trial counsel, Cristina Gutierrez, was ineffective in failing to contact/call Asia McClain as an alibi witness. Asia wrote Adnan two letters indicating that she saw Adnan at the Woodlawn Library of January 13, 1999. According to Adnan, he gave these letters to Gutierrez but was later told by her that "they didn’t check out (Asia had the wrong date or something)." In this post, I will explain why I think that this is exactly what Adnan was told and how it could lead to him getting a new trial.

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January 14, 2015 | Permalink | Comments (12) | TrackBack (0)

Tuesday, January 13, 2015

Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

From the Institute for Law teaching:

Engaging the Entire Class:
Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

Register and pay online
(through UCLA website)

"Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" is a one-day conference being presented by the UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) in Los Angeles, California on February 28, 2015.

Conference Structure

The conference will include an opening and closing led by ILTL Co-Directors and Consultants, and five workshop sessions. Each workshop session will be presented by a teacher featured in What the Best Law Teachers Do.

  
 

Workshop presenters include:

By the end of the conference, participants will have concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions.

Who Should Attend

This conference is for all law faculty (full-time and adjunct) who want to learn about enhancing participation and inclusion in law school.

Conference Schedule

All Sessions will take place at the UCLA School of Law on Saturday, February 28, 2015.

  • 8:00-8:40 a.m.: Registration and Continental Breakfast
  • 8:40-9:00 a.m.: Welcome and Opening
  • 9:00-10:00 a.m.: Workshop 1
  • 10:00-10:20 a.m.: Break
  • 10:20-11:20 a.m.: Workshop 2
  • 11:20-11:40 a.m.: Break
  • 11:40 a.m.-12:40 p.m.: Workshop 3
  • 12:40-1:30 p.m.: Lunch
  • 1:30-2:30 p.m.: Workshop 4
  • 2:30-2:50 p.m.: Break
  • 2:50-3:50 p.m.: Workshop 5
  • 3:50-4:10 p.m.: Break
  • 4:10-4:30 p.m.: Closing
  • 4:30 p.m.: Adjourn

Registration Fee

Through February 12, 2015

  • $250 - General Attendance
  • $100 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
  • $0 - UCLA Law full/part-time faculty (registration required)

After February 12, 2015

  • Registration is on-site only
  • $300 - General Attendance
  • $300 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
  • $0 - UCLA Law full/part-time faculty (registration required)

Registration fee includes:

  • all materials, and
  • breakfast, lunch, and snacks.

Location

Conference activities will be held at UCLA School of Law, 385 Charles E. Young Drive East, 1242 Law Building, Los Angeles, California 90095 (Directions and Maps).

Transportation

Participants are responsible for their own travel arrangements to the conference.

Lodging

A block of rooms has been reserved until January 25, 2015 for the nights of February 27 and February 28 at:

  • UCLA Guest House
    330 Charles E. Young Dr. East
    Los Angeles, CA 90095
    $177.00: queen bed
    $182.00: queen bed with kitchenette
    $182.00: queen bed with twin bed

Make reservations by calling the hotel directly at (310) 825-2923 and mentioning that you are participating in the UCLA School of Law's "Institute for Law Teaching and Learning Conference at UCLA".

Please note: UCLA Guest House offers complimentary continental breakfast each morning but is not a full-food service hotel - meaning that they do not provide the service of ordering food via room service, and there is not a lobby restaurant. There are, however, many restaurants in Westwood Village, which is less than a 15 minute walk from the hotel. Also: On-site parking at the Guest House is free, but limited, on a first-come, first-served basis. If the hotel parking lot is full, the Guest House sells parking passes for the closest UCLA parking structure number 3.

Register and pay online
(through UCLA website)

January 13, 2015 | Permalink | Comments (1) | TrackBack (0)

Dropped Call: IL Court Finds Brady Violation Based on Failure to Disclose Key Evidence About Cell Phone

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held the the government violates the Due Process Clause by failing to turn over material exculpatory evidence to the defendant in a timely fashion. The Court defined "material exculpatory evidence" as evidence that creates a reasonable probability of a different outcome at trial. Importantly, the Court held that there is a Brady violation even if the failure to timely disclose this evidence was not done in bad faith. It was this last point that allowed an Illinois court to reverse a man's convictions for possessing between 2,000 and 5,000 grams of marijuana.

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

Monday, January 12, 2015

Go Directly to Jail: George Zimmerman & Florida's Special Domestic Violence Arrest Law

On Friday the infamous George Zimmerman was arrested after allegedly throwing a bottle of wine at his girlfriend. Did he need to be arrested? Approximately 21 states and the District of Columbia have mandatory arrest policies in cases where there is probable cause or reasonable suspicion of certain types of domestic violence. In any of these jurisdictions, the responding officers likely would have needed to arrest Zimmerman. Florida, however, does not have a mandatory arrest policy, but it does have a special arrest policy in domestic violence cases. Section 901.15(7) of the Florida Statutes provides that

A law enforcement officer may arrest a person without a warrant when...[t]here is probable cause to believe that the person has committed an act of domestic violence, as defined in s. 741.28, or dating violence, as provided in s. 784.046. The decision to arrest shall not require consent of the victim or consideration of the relationship of the parties. It is the public policy of this state to strongly discourage arrest and charges of both parties for domestic violence or dating violence on each other and to encourage training of law enforcement and prosecutors in these areas. A law enforcement officer who acts in good faith and exercises due care in making an arrest under this subsection, under s. 741.31(4) or s. 784.047, or pursuant to a foreign order of protection accorded full faith and credit pursuant to s. 741.315, is immune from civil liability that otherwise might result by reason of his or her action.

In other words, in cases in which there is probable cause of domestic or dating violence, police officers  (even without an arrest warrant) may arrest a suspect regardless of whether the victim consents to the arrest and regardless of the relationship between the parties (e.g., dating vs. married). Furthermore, a police officer arresting a suspect in good faith in such a case is immunized from a civil lawsuit for wrongful arrest or some related tort. I find it interesting that Section 901.15(7) discourages the arrest of both of the parties to the domestic/dating violence. I assume that this discouragement is in place so that a victim is not deterred from contacting police based upon fear that she herself might be arrested.

-CM

January 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Do Ask, Don't Tell: Significant Change Made to Military's Rape Shield Rule

Military Rule of Evidence 412, the military's rape shield rule, reads as follows:

Rule 412. Nonconsensual sexual offenses; relevance of victim’s behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in sections (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions. In a proceeding under this chapter, the following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and III-15

(3) evidence the exclusion of which would adversely affect the integrity or fairness of the proceeding.

So, let's say that a military judge deems evidence of a serviceperson's sexual history or predisposition admissible under this rape shield rule. What can the serviceperson do? 

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January 9, 2015 | Permalink | Comments (2) | TrackBack (0)

Thursday, January 8, 2015

The Serial Podcast: The Possible Legal Implications of Kevin Urick's Interview for Adnan

I've posted 28 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. Yesterday, Kevin Urick, one of the prosecutors at Adnan's trial, gave an Interview to The Intercept. For purposes of this post, here is the relevant portion of that interview:

[Kevin Urick]: I think the judge in the post-conviction trial does a very good job of pointing out that in the letters to Syed, she is very vague and indifferent about what she’s doing. The difficulty comes from Syed. In all his statements about his whereabouts the day of the case he says that he was at the school from 2:15pm to 3:30pm. He never once, in any statement, at any time, made any reference about being in the public library. His defense was that he was at the school from 2:30 to 3:30. So [Asia McClain’s] reporting seeing him at the pubic library contradicts what he says he was doing. The letters were also sent in March of 2000, two months after Syed was charged.  

Asia contacted me before the post-conviction hearing, she got my number and called me and expressed to me a great deal of concern about whether or not she would have to testify at the post-conviction hearing. She told me she was under a lot of pressure from Adnan’s family and to get them off her back she wrote him a couple letters. The implication was she was trying to appease them and she didn’t want to have to stick by it at that time. And I testified to that when I appeared in the post-conviction hearing.

My takeaway? If Urick's testimony at the post-conviction hearing was similar to this statement in his interview, Adnan has a great shot at a new trial.

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January 8, 2015 | Permalink | Comments (31) | TrackBack (0)

Wednesday, January 7, 2015

Do Not Assume: Court of Appeals of North Carolina Upholds DNA Testing of Discarded Cigarette Butt

On March 5, 2010, a victim was raped in Raleigh, North Carolina. Jason Williford soon became a suspect.

On 15 April 2010, RPD Officer Gary L. Davis...parked his unmarked vehicle in a parking lot directly adjacent to defendant’s multi-unit apartment building while defendant was shopping at a nearby grocery store. When defendant returned, Officer Davis observed defendant smoking a cigarette as he exited his vehicle. Defendant then finished the cigarette and dropped the butt onto the ground in the parking lot. Shortly thereafter, RPD Officer Paul Dorsey...entered the parking lot. Officer Dorsey approached defendant and spoke to him in order to distract him while Officer Davis retrieved the cigarette butt. After securing the butt, the officers left the apartment building.

Subsequent DNA testing revealed that defendant’s DNA was a match for the DNA collected from the rape kit....

Was this proper? According to yesterday's opinion by the Court of Appeals of North Carolina in State v. Williford, the answer is "yes."

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January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

The Serial Podcast, Transcripts: The Judge's Denial of a Motion for Jurors to Visit the Best Buy

I've posted 27 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. We are now getting portions of the transcripts from Adnan's second trial, the trial that resulted in his conviction. Here's the transcript for day one, and here's the transcript from day two. The day two transcript is interesting for a number of reasons. One of these reasons is that it reveals how easily the State's case could have been destroyed.

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

Monday, January 5, 2015

My Two New Essays on Hearsay and the Authentication of Social Media Evidence

I recently published a couple of new essays. The first is Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay,  71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

The second is The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, Temple Law Review Online (2014) (with Charles White). Here is the abstract:

This article is the first publication in Temple Law Review Online, a new platform for publishing scholarly works that are shorter than the traditional law review article, involve time-sensitive topics, or directly respond to materials published in Temple Law Review’s printed issues. We are excited to present the inaugural writing on a fitting topic: the intersection of modern Internet culture and traditional laws of Evidence. Professor Miller uses recent examples of “social media evidence” to argue that, given the current technological and social climate, a more stringent authentication standard must be developed and used.

-CM 

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

Friday, January 2, 2015

The Serial Podcast: What If Neither of Them Did It? Maryland's New DNA Standard

I've posted 26 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. The popular assumption is that either Adnan or Jay, the key witness for the prosecution, must have killed Hae. But what if neither of them did it? The UVA Law Innocence Project is in the process of filing a request for forensic testing. This prompts two questions: (1) Is there any possibility that this testing will uncover some third party's DNA; and (2) What would be the legal implications of such a finding? The answer to both of these questions can be found in Thompson v. State, 985 A.2d 32 (Md. 2009), a case that bears some striking similarities to Adnan's case.

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January 2, 2015 | Permalink | Comments (6) | TrackBack (0)

Thursday, January 1, 2015

State's Witness: Eastern District of Michigan Finds No Problem With Limiting Impeachment of Key State Witness

Similar to its federal counterpartMichigan Rule of Evidence 608(b) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Rule 608(b) contains what is known as the "collateral evidence" rule. If a party has a good faith reason to believe that a witness has committed an act of dishonesty unrelated to the trial at hand, the party cannot prove that act through extrinsic evidence. The party, can, however, ask the witness about the act during cross-examination. Given this, I strongly disagree with the recent opinion of the United States District Court for the Eastern District of Michigan in Landers v. Romanowski, 2014 WL 7369914 (E.D.Mich. 2014).

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

Wednesday, December 31, 2014

The Advocate: Court Reverses Sexual Abuse of a Minor Convictions Based on Presence of Victim Advocate

Federal Rule of Evidence 611(a) provides that

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:  

(1) make those procedures effective for determining the truth;  

(2) avoid wasting time; and  

(3) protect witnesses from harassment or undue embarrassment.

One interesting question that has arisen under Rule 611(a) is: when can a court allow for a victim advocate to stand near a vulnerable witness while she testifies at trial? The recent opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands in Commonwealth v. Santos does a good job compiling the varying approaches that different courts have taken, but I don't like the result it reached.

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December 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

The Serial Podcast: The Possible Legal Implications of Jay's Interview for Jay & Adnan

I've posted 25 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. The key witness in the prosecution's case, the only witness who really incriminated Adnan, was Jay Wilds. By the proscutor's own admission, Jay gave wildy inconsistent versions of the events that occurred on January 13th during his police interviews (here and here) and his trial testimony. But the prosecutor asked jurors at Adnan's trial to "look at the big picture" and told them that the main plot points in Jay's story had been consistent.

I took the prosecutor at his word until Rabia Chaudry posted some excerpts of Jay's testimony at trial, which showed that even Jay's testimony on key events varied over the course of his various accountings. This was troubling and led me to conclude that the prosecution's case was dead and that I would not use Jay's story or the prosecution's theory of the case as any type of starting point for determining Adnan's guilt or innocence. As I noted in that post, Jay's inconsistencies tore out the heart and ripped out the brain of the prosecution's case

Yesterday, The Intercept posted Part 1 of its exclusive interview with Jay Wilds. I said before that the prrosecution's case was dead. With this interview, Jay has now burned the corpse. So, what are the legal consequences of this interview for Jay and Adnan? I will address these issues in succession in this post.

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December 30, 2014 | Permalink | Comments (24) | TrackBack (0)

Monday, December 29, 2014

Confrontational: Supreme Court of Kansas Reverses Murder Convictions Due to Confrontation Clause Error

The Confrontation Clause provides that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.

From the language of this Clause, it should be pretty clear whom it protects, and, by implication, whom it doesn't protect. This was not the case, however, in State v. Smith-Parker, 2014 WL 7331577 (Kan. 2014).

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December 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 27, 2014

The Serial Podcast, Transcripts: The 2:36 Best Buy Call Was in the Opening Statement at the 1st Trial!

I've posted 24 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. Today brings a new component to the podcast as Rabia Chaudry, an attorney and the sister of Adnan's best friend, has started releasing the full trial transcripts from Adnan's trials. Today, she posted a document containing jury selection and opening statements from Adnan's first trial (which ended in a mistrial). With this release, we have our first bombshell. This is from prosecutor Kevin Urick's opening statement:

2-36
 

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December 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2014

Do Not Assume: Illinois Court Upholds DNA Contempt Order Based on Familial Hearsay Rule

Similar to its federal counterpartIllinois Rule of Evidence 804(b)(4)(A) provides an exception to the rule against hearsay for

A statement [by an unavailable declarant] concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated....

Rule 804(b)(4)(A) is most often invoked is cases involving disputed inheritances, as was the case in Kaull v. Kaull, 2014 IL App (2d) 130175 (Ill.App.2d 2014).

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December 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 25, 2014

The Serial Podcast: Ineffective Assistance of Counsel in the Aggregate vs. Single Issue IAC

It's a sign of the popularity of the Serial Podcast that I got multiple e-mails on Christmas Eve about a podcast about that podcast. This particular podcast was one done by the UVA Innocence Project regarding the final episode of the Serial Podcast. Both of the people who e-mailed me directed me to 24:21 of the UVA podcast. In this portion of the podcast, Deidre Enright, the director of the UVA Innocence Project, said the following about Adnan Syed's trial counsel:

"But, most of our lawyers aren't...they're kind of asleep at the wheel, and she wasn't that. And so it's good that there's physical evidence because we could probably pick away at many things she did wrong but I don't think she'd be ineffective under Strickland."

I noted in my last post that it would be my final post on the Serial Podcast unless and until (1) the full trial transcripts are released and/or (2) something happens with Adnan's appeal. The UVA podcast relates to Adnan's appeal because they're the ones petitioning for DNA testing. That said, I still don't have the full trial transcripts, and the folks at UVA do. Given that, I'm not going to attempt to second guess the conclusion of Deidre Enright. She's clearly a brilliant legal mind, and she clearly knows what she's talking about. What I do want to do in this post, however, is lay out the two different ways that a defendant can prove the ineffective assistance of counsel.

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December 25, 2014 | Permalink | Comments (2) | TrackBack (0)

Wednesday, December 24, 2014

Mourning the Loss of Professor Jeremy Blumenthal

I was saddened to learn today that Jeremy Blumenthal, a professor at the Syracuse University College of Law, had passed away. I met Jeremy at the AALS Conference in 2011, where he was presenting his poster, Abortion Jurisprudence and Empirical Evidence. He was also one of the co-authors on Modern Scientific Evidence: The Law and Science of Expert Testimony. I didn't know Jeremy that well, but we corresponded a few times over the years, and he always seemed to be a nice, smart, and passionate person. I send my best condolences to his family and the Syracuse community.

-CM

December 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Torture Memo: D.C. Court Finds Sufficient Evidence to Support FSIA "Terrorism Exception" in North Korea Case

The Foreign Sovereign Immunities Act (FSIA) provides that

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

That said, FSIA contains a "terrorism exception," which negates immunity in cases involving acts such as state-sponsored torture and extrajudicial killing. In Han Kim v. Democratic People's Republic of Korea, 2014 WL 7269560 (D.C. Cir. 2014), "the family of Reverend Dong Shik Kim sued the North Korean government alleging that it abducted him, confined him to a kwan-li-so—a political penal-labor colony—tortured him, and, ultimately, killed him." When North Korea failed to appear, the Kims asked for a default judgment because they had presented sufficient evidence that the "terrorism exception" applied. The district court denied the motion "because the Kims had failed to produce 'first-hand evidence' of what happened to the Reverend." What happened on appeal?

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December 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

The Turncoat Witness: Analyzing the Differences Between Federal & Ohio Rule of Evidence 607

Federal Rule of Evidence 607 provides that

Any party, including the party that called the witness, may attack the witness’s credibility.

On the other hand, Ohio Rule of Evidence 607 reads as follows:

(A) Who may impeach. The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.

(B) Impeachment: reasonable basis. A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact. 

In State v. McKinney, 2014 WL 7226330 (Ohio App. 6th 2014), the Court of Appeals of Ohio noted that "Evid.R. 607(A) clearly allows an attack on a witness' credibility although it restricts such attacks by the party calling the witness." As the language of Rule 607(A) makes clear, however, that's not really the case.

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December 23, 2014 | Permalink | Comments (1) | TrackBack (0)