EvidenceProf Blog

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

Friday, October 18, 2019

My Take on the State of Maryland's Brief in Opposition in the Adnan Syed Case

Today, the State of Maryland filed its Brief in Opposition to Adnan Syed's petition for writ of certiorari to the United States Supreme Court. The Brief in Opposition is 31 pages, but the dispute between the defense and the State is clear from two paragraphs in the State's brief:

Under the “majority approach” touted by Syed, a court’s prejudice inquiry should “take the State’s evidence of guilt as the jury heard it,” examine “the theory the State advanced at trial,” and “consider the difference between the case that was and the case that should have been.”...This is precisely what the Maryland Court of Appeals did here....

At no point did the Maryland Court of Appeals “reject[] the majority approach” to analyzing prejudice, as Syed contends....The “split” identified by Syed is instead implied from a single sentence in the opinion, which states that “the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State’s timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m.”....Syed reads far too much into this single sentence, which represents neither a departure from Strickland nor the “majority approach” identified by Syed.

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October 18, 2019 | Permalink | Comments (0)

Thursday, October 10, 2019

Mega Update on All Undisclosed Cases

On October 9th, Willie Veasy's conviction for murdering John Lewis was vacated, and all of the charges against him were dropped Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Adnan Syed

AS6

Adnan Syed was convicted of the 1999 murder of his ex-girlfriend Hae Min Lee (Undisclosed series). After the Circuit Court and the Court of Special Appeals of Maryland granted him a new trial, the Court of Appeals reversed in a 4-3 ruling. Adnan's team has now filed a cert petition to the United States Supreme Court, and the State's response is due October 21st. If the Supreme Court does not grant cert, this will likely be followed by a claim of ineffective assistance of postconviction counsel based on the AT&T disclaimer that will very likely succeed, lead to his conviction being thrown out.

Joey Watkins

JWat

Joey Watkins was convicted of the 2000 murder of Isaac Dawkins (Undisclosed series). He currently has two appellate claims that are active. I think his stronger argument is that a juror improperly did a drive test during deliberations to see if she could make the cell tower pings work. Substantively, this is a clear winning argument for a new trial. The Circuit Court, however, found that the argument was procedurally barred due to waiver. This ruling was appealed to Supreme Court of Georgia, which initially declined to hear it. In a stunning turn of events, however, the Supreme Court of Georgia granted Joey's motion for reconsideration. Joey filed his brief with the Supreme Court of Georgia on August 29th, and the State  filed its response on September 25th. We should be hearing soon about oral arguments.

Jamar Huggins

Hugg

The one witness to implicate Jamar Huggins in a home invasion in Conway, South Carolina in 2014 has since recanted and named the actual person who committed the crime (Undisclosed series). The initial claim was that this was "new evidence" allowing for a new trial. But the Circuit Court found this recantation was known and not used by trial counsel. That decision was recently affirmed by the Court of Appeals of South Carolina. This was all expected and sets up a pretty compelling argument for ineffective assistance of trial counsel. I'm currently working on that argument with Jamar's attorney.

Marcellus Williams

MWill

Marcellus Williams was convicted of the 1998 murder of Felicia Gayle. Governor Eric Greitens  stayed Marcellus Williams's execution in August 2017 (Undisclosed special episode). He also appointed a Board of Inquiry to review his case. That Board has not yet issued its report.

Shaurn Thomas

Stho

Shaurn Thomas was convicted of the 1990 murder of Domingo Martinez (Undisclosed series). In March 2017, the Conviction Integrity Unit in Philadelphia threw out Shaurn Thomas's conviction.

Willie Veasy

Veasy3

Willie Veasy was convicted of the 1992 murder of John Lewis (Undisclosed series). Yesterday, a judge vacated his conviction and the State dropped the charges against him due to compeelling evidence of his innocence.

Terrance Lewis

Lewis3

Judge Barbara McDermott declared Terrance innocent in May, leading to his release from prison (Undisclosed series).

Chester Hollman III

Hollman3

Chester Hollman III was convicted of the 1991 murder of Tae Jung Ho (Undisclosed series). On July 15, 2019, he was released based on a finding that Hollman was innocent, and all charges against him were subsequently dropped on July 30th.

Cyntoia Brown

Cbrown

Cyntoia Brown was convicted of the 2004 murder and robbery of Johnny Michael Allen (Undisclosed special episode). Govenor Bill Haslam granted Cyntoia Brown clemency, and she was released August 7th.

Ronnie Long

RLong

Ronnie Long was convicted of the 1976 rape of Gray Bost (Undisclosed series). A three judge panel of the United States Court of Appeals for the Fourth Circuit recently heard oral arguments on Ronnie's claim of Brady violations. A decision should be imminent.

William Montgomery

Monty

William Montgomery was convicted of the 1986 murder of  Debra Ogle (Undisclosed special addendum interview). Governor John Kasich commuted William's death sentence to a life without parole sentence in March 2018 .

Pamela Lanier

Lanier3

Pam Lanier was convicted of the 1997 murder of her husband Dorian (Undisclosed series). In the near future, expect a motion for a new trial from the Wake Forest team based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her.

Dennis Perry

Screen Shot 2019-05-22 at 9.50.16 PM

Dennis Perry was convicted of the 1985 murders of Harold and Thelma Swain (Undisclosed series). The Georgia Innocence Project file a habeas petition in June based on many of the issues we raised in our most recent series.

Charles Ray Finch

Finch

Charles Ray Finch was convicted of the 1976 murder of Richard Holloman (Undisclosed special episode). The Fourth Circuit first found that Charles Ray Finch had proven his "actual innocence."  Then, a federal district court granted his habeas petition and set him free in May.

Screen Shot 2019-05-23 at 12.09.19 PM

Rocky Myers

RMy

We recently finished our series on Rocky Myers, who has no ability to appeal his conviction for murdering Ludie Mae Tucker in 1991 due to his abandonment by appellate counsel. As a result, it is difficult to see a path toward exoneration in the courts. That said, we hope that his death sentence can be commuted to a life sentence due to the use of judicial override in his case, and we also hope that we can convince Governor Kay Ivey to stay execution if and when that execution is scheduled (Undisclosed series).

Joseph Webster

JWeb

We recently finished our series on Joseph Webster, who was convicted of the 1998 murder of Leroy Owens (Undisclosed series). Webster's case is currently being reviewed the Davidson County District Attorney’s Conviction Review Unit. We expect to have an update on his case in the next few weeks.

-CM

October 10, 2019 | Permalink | Comments (1)

Monday, October 7, 2019

An Introduction to the Jonathan Irons Case & His Brady Claim Based on an Undisclosed Fingerprints Report

On June 30th, I read a New York Times article about WNBA player Maya Moore taking a one year leave of absence to work on the case of Jonathan Irons, who she believes was wrongfully convicted. I reached out to see if I could help, and I've been working on the case ever since for a future series on Undisclosed. That series will premiere next year, but this Wednesday, October 10th, Jonathan has a hearing on his petition for writ of habeas corpus that could decide whether his case moves forward. In this post, I will do a brief introduction to his case and highlight one of the issues he raises in his petition: an alleged Brady violation.

Jirons

Jonathan Irons

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October 7, 2019 | Permalink | Comments (0)

Saturday, October 5, 2019

How Long is Too Long?: Fifth Circuit Finds Phone Call 5 Months After Slip-and-Fall Was Not a Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

So, how much time can pass before a matter is no longer fresh in a witness's memory? That was the question addressed by the Eleventh Circuit in its recent opinion in Garrison v. Sam's East, Inc., 2019 WL 4785526 (11th Cir. 2019).

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October 5, 2019 | Permalink | Comments (2)

Friday, October 4, 2019

First Circuit Finds Special Social Media Authentication Rules Don't Apply to Photographs Retrieved From Facebook

Federal Rule of Evidence 901(a) states that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, let's say that someone retrieves photographs from a Facebook page. Does the rules regarding authenticating social media evidence apply in such a case?

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October 4, 2019 | Permalink | Comments (0)

Sunday, September 29, 2019

4th Circuit Reverses Death Sentences Because Juror Asked Pastor if She Would Go to Hell if She Voted to Impose the Death Penalty

Federal Rule of Evidence 606(b) states that

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

There are many odd cases under Rule 606(b), and we can now add another one to the tally: Barnes v. Thomas, 2019 WL 4308636 (4th Cir. 2019).

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September 29, 2019 | Permalink | Comments (4)

Tuesday, September 17, 2019

The National Association of Criminal Defense Lawyers Filed an Amicus Curiae Brief in the Adnan Syed Case

Today, the National Association of Criminal Defense Lawyers filed an amicus curiae brief to the United States Supreme Court on behalf of Adnan Syed. So, what does this mean?

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September 17, 2019 | Permalink | Comments (4)

Seventh Circuit Finds Proper Exclusion of Expert Testimony on "Charismatic Groups" in Tax Protestor Trial

Federal Rule of Evidence 702 states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

So, assume that a defendant filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $300,000 refund, and is charged with making false claims against the United States and theft of government funds. If the defendant was a member of the the Moorish Science Temple of America, should she be allowed to call a forensic psychologist to testify that the defendant  was a member of a "charismatic group"—a cult-like organization that indoctrinates its members? That was the question addressed by the Seventh Circuit in its recent opinion in United States v. Truitt, 2019 WL 4315001 (7th Cir. 2019).

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September 17, 2019 | Permalink | Comments (0)

Wednesday, September 11, 2019

Supreme Court of Tennessee Finds Rule of Professional Conduct 3.8(d) is Coextensive With the Brady Doctrine

In its opinion in Brady v. Maryland, the Supreme Court held that the Due Process Clause obligates the prosecution to timely disclose material exculpatory evidence to the defense. Meanwhile, Tennessee Rule of Professional Conduct 3.8(d) states that

The prosecutor in a criminal case:....

shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal....

So, does the obligation imposed by Rule 3.8(d) exceed to obligation imposed by Brady v. Maryland?

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September 11, 2019 | Permalink | Comments (0)

Monday, September 9, 2019

Supreme Court of Florida Rejects Challenge to Adoption of Daubert Standard For Expert Evidence

In May, the Supreme Court of Florida dispensed with the Frye test for determining the admissibility of expert evidence and adopted the Daubert standard. The Frye standard determines the reliability/admissibility of evidence solely based upon whether the expert technique/technology has general acceptance on the relevant expert community (e.g., whether testimony by an arson expert is based upon a technique that has general acceptance on the arson investigation community). By way of contrast, under the Daubert standard, the judge acts as gatekeeper to the admission of expert evidence and determines reliability by considering factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

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September 9, 2019 | Permalink | Comments (0)

Friday, August 23, 2019

My Third Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

As noted in a prior post, there is a proposed amendment to Federal Rule of Evidence 807 that would take effect in December 2019. Under the current version of Rule 807, a party seeking to offer a statement under the residual hearsay exception must establish that the statement is

is offered as evidence of a material fact;...[and]

admitting it will best serve the purposes of these rules and the interests of justice.

The amended rule would eliminate both of these requirements. So, what's the reasoning behind the change and the practical effect?

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August 23, 2019 | Permalink | Comments (1)

Wednesday, August 21, 2019

My Second Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

As noted in a prior post, there is a proposed amendment to Federal Rule of Evidence 807 that would take effect in December 2019. Here's the beginning of the amended Rule:

Screen Shot 2019-08-21 at 8.09.21 PM

As you can see, the amended Rule specifically tells judges to consider evidence corroborating a hearsay statement offered under the residual exception. So, what does this mean?

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August 21, 2019 | Permalink | Comments (0)

Monday, August 19, 2019

Defense Team for Adnan Syed Files Petition for Writ of Certiorari w/United States Supreme Court

Today, the defense team in the Adnan Syed case filed a petition for writ of certiorari with the United States Supreme Court. In this post, I will break down what this means and what it argues.

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August 19, 2019 | Permalink | Comments (12)

Saturday, August 17, 2019

My First Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

Federal Rule of Evidence 807, the residual hearsay exception, currently reads as follows:

Screen Shot 2019-08-14 at 9.23.25 PM

But, under a proposed amendment that would take effect in December 2019, Rule 807 would look meaningfully different.

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August 17, 2019 | Permalink | Comments (0)

Thursday, August 15, 2019

U.S. Navy-Marine Corps Court of Criminal Appeals Grapples With Scope of Amended Prior Consistent Statement Rule

Assume that Witness testifies at trial she saw Defendant on the day of a murder carrying a sawed off shotgun. Moreover, assume that Witness had said something similar in a police statement made in the days after the murder. Finally, assume that defense counsel impeaches Witness's credibility by calling Neighbor, who testifies that Witness has a reputation in the neighborhood for being a liar. Can the prosecution now admit the pertinent portion of Witness's police statement as a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B)? I'm not sure, and I also think that the U.S. Navy-Marine Corps Court of Criminal Appeals is unsure as well.

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August 15, 2019 | Permalink | Comments (2)

Wednesday, August 14, 2019

Court of Special Appeals of Maryland Finds Evidence of Appropriate Interactions With Students is Not Character Evidence

Federal Rule of Evidence 404(a)(2)(A) and most state counterparts provide that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it 

So, a defendant charged with murder can present evidence regarding his character for nonviolence. And, a defendant charged with fraud can present evidence regarding his character for honesty. But, can a defendant charged with sex abuse of a minor present evidence regarding his character for "appropriate interaction with students in his care and custody." That was the question of first impression addressed by the Court of Special Appeals of Maryland in its recent opinion in Vigna v. State, 2019 WL 3451382 (Md.App. 2019).

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August 14, 2019 | Permalink | Comments (0)

Saturday, August 10, 2019

Supreme Court of Nevada Sets Rules for Empaneling Anonymous Juries

What's an anonymous jury? The exact details vary somewhat from jurisdiction to jurisdiction, but here's what was done in a recent Nevada case:

[T]he district court decided to empanel an anonymous jury and redact the jurors’ names and addresses from the juror questionnaires. The record indicates that the district court expressly explained its reasons for doing so to the parties before trial. The record also indicates that counsel retained access to the jurors’ geographical locations, ages, professions, education levels, family demographics, and other biographical and personal information. Moreover, the district court apparently invited counsel to view the unredacted juror questionnaires of certain jurors the court flagged before formally starting jury selection.

Before questioning began, the district court informed all prospective jurors of its decision to identify them by number, not name, but explained that it was doing so to protect their privacy:

You may be questioning why are we using numbers instead of names. Well, some of you may have seen the newspaper yesterday. I don’t know if it’s in today. But as the judge here, I felt your privacy was important and I didn’t want you being harassed or followed up during your time as jurors here. And so for that reason, I’ve selected this panel according to numbers. So you can rest assured that the newspaper reporters will leave you alone.

Extensive voir dire followed, which appears to have lasted a couple of hours. During this time, both parties had the opportunity to examine the panel of prospective jurors and ask a wide range of questions aimed at uncovering bias. Nothing in the record suggests that the district court limited the scope of questioning or rushed either party during this process. Instead, the only apparent limitation placed on voir dire was the redaction of the jurors’ names and addresses.
 
So, when is a judge allowed to empanel an anonymous jury?

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August 10, 2019 | Permalink | Comments (1)

Tuesday, August 6, 2019

Supreme Court of South Carolina Finds Failure to Elicit Alibi Testimony Was Ineffective Assistance of Counsel in Armed Robbery Case

Back on March 8th, the Court of Appeals of Maryland denied Adnan Syed a new trial in a 4-3 opinion, finding that (1) trial counsel rendered deficient performance in failing to contact prospective alibi witness Asia McClain; but (2) the failure to contact was not prejudicial, i.e., did not undermine confidence in the jury's verdict. The defense's cert petition to the United States Supreme Court is due on August 19th, and one its arguments will undoubtedly be that there is not a single other case in which another court has found that deficient performance in connection with an alibi witness was not prejudicial. This stands in contrast to the dozens (hundreds?) of cases in which courts have found that deficient performance in connection with an alibi witness was prejudicial. And now, a new case can be added to this column: Martin v. State, 2019 WL 3211276 (S.C. 2019).

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August 6, 2019 | Permalink | Comments (0)

Monday, August 5, 2019

Mega Update on All Undisclosed Cases

Only July 30th, all charges against Chester Hollman III were dropped two weeks after a judge accepted the prosecution's argument that he was "likely innocent" of a 1991 murder. Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Adnan Syed

AS6

Unfortunately, you probably know the status of Adnan's case (Undisclosed series). After the Circuit Court and the Court of Special Appeals of Maryland granted him a new trial, the Court of Appeals reversed in a 4-3 ruling. The next step is a cert petition to the United States Supreme Court that will be filed by August 19th and that will likely be denied. This will likely be followed by a claim of ineffective assistance of postconviction counsel based on the AT&T disclaimer that will very likely succeed, lead to his conviction being thrown out.

Joey Watkins

JWat

Joey had two claims (Undisclosed series). I think his stronger argument is that a juror improperly did a drive test during deliberations to see if she could make the cell tower pings work. Substantively, this is a clear winning argument for a new trial. The Circuit Court, however, found that the argument was procedurally barred due to waiver. This ruling was appealed to Supreme Court of Georgia, which initially declined to hear it. In a stunning turn of events, however, the Supreme Court of Georgia granted Joey's motion for reconsideration. As a result, while it might take a few years, I now think there's a very strong chance that Joey's conviction is eventually thrown out.

Jamar Huggins

Hugg

The one witness to implicate Jamar Huggins in a home invasion in Conway, South Carolina has since recanted and named the actual person who committed the crime (Undisclosed series). The initial claim was that this was "new evidence" allowing for a new trial. But the Circuit Court found this recantation was known and not used by trial counsel. That decision was recently affirmed by the Court of Appeals of South Carolina. This was all expected and sets up a pretty compelling argument for ineffective assistance of trial counsel. I'm currently working on that argument with Jamar's attorney.

Marcellus Williams

MWill

Governor Eric Greitens  stayed Marcellus Williams's execution in August 2017 (Undisclosed special episode). He also appointed a Board of Inquiry to review his case. That Board has not yet issued its report.

Shaurn Thomas

Stho

In March 2017, the Conviction Integrity Unit in Philadelphia threw out Shaurn Thomas's conviction (Undisclosed series).

Willie Veasy

Veasy

Veasy's timecard shows him working at the time he was allegedly killing "The Jamaican," the only witness against him was legally blind, and the State suppressed exculpatory evidence (Undisclosed series). We are currently working with the Conviction Integrity Unit on this case and hope for a ruling soon.

Terrance Lewis

Lewis3

Judge Barbara McDermott declared Terrance innocent in May, leading to his release from prison (Undisclosed series).

Chester Hollman III

Hollman3

As noted above, a judge recently accepted the prosecution's statement that Chester was "likely innocent" of the 1991 murder of Tae Jung Ho and released, with the State subsequently dropping all of the charges against him, accompanied by an apology (Undisclosed series). 

Cyntoia Brown

Cbrown

Govenor Bill Haslam granted Cyntoia Brown clemency, meaning she should be released August 7th (Undisclosed special episode).

Ronnie Long

RLong

A three judge panel of the United States Court of Appeals for the Fourth Circuit recently heard oral arguments on Ronnie's claim of Brady violations (Undisclosed series). A decision should be imminent.

William Montgomery

Monty

Governor John Kasich commuted William's death sentence to a life without parole sentence in March 2018 (Undisclosed special addendum interview).

Pamela Lanier

Lanier3

In the near future, expect a motion for a new trial from the Wake Forest team based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her (Undisclosed series).

Dennis Perry

Screen Shot 2019-05-22 at 9.50.16 PM

Expect a motion for a new trial by the Georgia Innocence Project in the near future based on many of the issues we raised in our most recent series [Edit: Dennis's habeas petition was filed in June] (Undisclosed series).

Charles Ray Finch

Finch

The Fourth Circuit first found that Charles Ray Finch has proven his "actual innocence."  Then, a federal district court granted his habeas petition and set him free in May (Undisclosed special episode

Screen Shot 2019-05-23 at 12.09.19 PM

Rocky Myers

We just finished our series on Rocky Myers, who has no ability to appeals his murder conviction due to his abandonment by appellate counsel. As a result, it is difficult to see a path toward exoneration in the courts. That said, we hope that his death sentence can be commuted to a life sentence due to the use of judicial override in his case, and we also hope that we can convince Governor Kay Ivey to stay execution if and when that execution is scheduled (Undisclosed series).

-CM

August 5, 2019 | Permalink | Comments (8)

Friday, August 2, 2019

For the First Time, Massachusetts Deems Memory Loss a Proper Ground For Declarant Unavailability

Massachusetts evidence law is weird. The state has a Guide to Evidence that is updated annually but that is not binding upon the courts. That said, those courts can adopt portions of the Guide to Evidence, which is what the Supreme Judicial Court of Massachusetts did in its recent opinion in Hedberg v. Wakamatsu, 2019 WL 3023528 (Mass. 2019). But that opinion is odd for a few reasons.

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August 2, 2019 | Permalink | Comments (1)