EvidenceProf Blog

D.C. Circuit Finds That a Computer System Can't Register a Copyright in a Work it Generated

Androids may dream of electric sheep, but a computer system apparently can't register copyright in work it generated. At least that's the finding by the United States Court of Appeals for the District of Columbia Circuit in its recent opinion in Thaler v. Perlmutter, 2025 WL 839178 (D.C. Cir. 2025).

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Justice Alito Calls for Limiting the Confrontation Clause to Live Witnesses

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." Since Crawford, the Supreme Court has issued various opinions fleshing out exactly what is meant by "testimonial."

But, according to a statement by Justice Alito today regarding the Supreme Court's decision to deny certiorari in Franklin v. New York, the Confrontation Clause should only be considered in connection with live witnesses at trial and should not cover "testimonial" statements by non-testifying witnesses.

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Massachusetts Judge Refuses to Give "Missing Witness" Instruction for Shooting Victim Who Didn't Want to Testify Due to PTSD

A "missing witness" instruction permits the jury, "if they think reasonable in the circumstances, [to] infer that that person, had he been called, would have given testimony unfavorable to the party.” Commonwealth v. Figueroa, 595 N.E.2d 779 (Mass. 1992). So, should the defense be entitled a "missing witness" instruction when the prosecution gives every indication that a shooting victim will testify before telling the defense that he won't testify because he has PTSD? That was the question teed up for the judge in the current prosecution of Jason Levesque.

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Sticks & Stones: Supreme Court of Kentucky Reverses Manslaughter Conviction, Finding Initial Aggressor Instruction Was Improperly Given

In Kentucky, as in most jurisdictions, the prosecution can request an "initial aggressor" instruction informing jurors that the defendant does not have a self-defense claim if he was the initial aggressor (unless certain narrow exceptions apply). But, of course, to receive such an instruction, there must be some evidence in the record that the defendant was in fact the initial aggressor. And that was the problem for the prosecution in the opinion of the Supreme Court of Kentucky today in Dunkelberger v. Commonwealth.

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My Law Professor Amici Curiae Brief Asks the Supreme Court to Make it Tougher For Prosecutors to Introduce Evidence With an Accusatory Component

With J. Remy Green, I have filed a law professor amici curiae brief with the United States Supreme Court, asking it to make it tougher for prosecutors to introduce evidence with an accusatory component. The brief covers cases in which, for instance, a murder victim tells a friend days before he dies, "I'm afraid my neighbor is going to kill me because we got in a fight last week." Under Federal Rule of Evidence 803(3) and state counterparts, this statement would be admissible under the state of mind exception to the rule against hearsay to establish the victim's fear of the neighbor. But it would be inadmissible to establish that the neighbor/defendant fought with the victim days before the murder. The question is thus whether jurors can compartmentalize the statement into permissible and impermissible purposes.

In the brief, I contend that they cannot and that the Supreme Court has already ruled on this issue, albeit in an opinion that seems largely forgotten in the twenty-first century.

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Supreme Court of Indiana Finds "Eggshell Plaintiff" Doctrine Applies in Murder & Manslaughter Trials

The "eggshell plaintiff" or "eggshell skull" doctrine generally "holds that holds that a defendant’s liability in a tort claim is not mitigated by a plaintiff’s unforeseeable, pre-existing susceptibility to injury." Last February, I did a blog post about the Court of Appeals of Indiana finding that the "eggshell plaintiff" doctrine doesn't apply to murder or manslaughter cases, ruling as follows:

The State does not cite, nor can we locate, any Indiana cases where the eggshell-victim doctrine was applied to a murder or voluntary-manslaughter case to establish that the defendant knowingly or intentionally killed someone. A search of other jurisdictions doesn't reveal many cases, but those we found support that the eggshell-victim doctrine doesn't apply to murder or voluntary-manslaughter cases. As the Seventh Circuit has explained:

The eggshell-skull principle does not quite fit a case of intentional murder, for the murderer must intend his victim's death and ordinarily this will presuppose some awareness of the likely consequences of his act. It is not murder to kill a person by a slight blow harmless to an ordinary person if you do not know the person is unusually vulnerable; there is even a presumption in Illinois that one who beats another with his bare fists does not intend to kill him....

Now, in Konkle v. State, 2025 WL 782333 (Ind. 2025), the Supreme Court of Indiana has reversed this ruling.

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Supreme Judicial Court of Massachusetts Finds Prosecutor Erred in Asking Jurors to Infer the Defendant Carried a Knife to the Victim's Home Because He Was a Fisherman

According to the Supreme Judicial Court of Massachusetts, “[a]lthough a prosecutor may urge the jury to draw reasonable inferences from the evidence, a prosecutor may not engage in speculation or surmise, or ask the jury to do so.” Commonwealth v. Brown, 189 N.E.3d 654 (2022). A good example of a prosecutor violating this principle in closing argument can be found in the recent opinion of that court in Commonwealth v. Roman, 251 N.E.3d 1183 (Mass. 2025).

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Sixth Circuit Finds Brady Doctrine Applies to Forensic Scientists, Even in the Absence of Bad Faith

Under the Brady doctrine, the State has an affirmative obligation to disclose material exculpatory evidence to the defense. This duty applies to both prosecutors and police officers. But does it apply to forensic scientists? And, if so, does it apply even in the absence of bad faith? These were the questions the Sixth Circuit had to answer in its recent opinion in Clark v. Louisville-Jefferson County Metro Government, 2025 WL 732838 (6th Cir. 2025).

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Supreme Court of Indiana Issues Landmark Ruling on Self-Defense

The Supreme Court of Indiana has issued a fascinating opinion on self-defense in Turner v. State, 2025 WL 782331 (Ind. 2025), framing the case as follows: "This is a case about a good guy with a gun shooting a bad guy with a gun when the only choices were to shoot or be shot."

Here were the critical facts of the case:

Antonio Turner was one of three students studying organic chemistry at a classmate's home, tucked away in a quiet neighborhood just outside of Indianapolis. While they were studying, the classmate's jealous love interest, Dequan Briscoe, repeatedly called her. And when he learned Turner was at her home, Briscoe twice threatened to “pull up” on Turner—to attack him—which Turner heard over the speakerphone. Shortly after hearing the threat, Turner walked outside to his car, and moments later, he sensed that the unfamiliar car screeching towards him down the sleepy street was an ambush. Since he didn't have time to reach the house and had nowhere to hide, he turned while running and fired four shots into the car, wounding Briscoe. Turner fired based on his intuition—he didn't recognize the car, couldn't see through its darkly tinted windows, and wouldn't have recognized Briscoe if he saw him. But that intuition proved prescient. It turns out Briscoe was aiming a handgun to shoot Turner just before Turner began firing.

Because Turner shot Briscoe before Briscoe shot Turner, Turner is the defendant rather than the victim in this case; the State charged Turner with battery by means of a deadly weapon, a Level 5 felony. And following a bench trial, the magistrate judge convicted him. Yet the judge agreed with Turner that, in hindsight, it was necessary for Turner to fire at Briscoe to avoid being shot. But the judge rejected Turner's self-defense justification because, without the benefit of hindsight, it was objectively unreasonable for Turner to fire at a car into which he couldn't see. Turner made the best choice, the judge explained, and it was unfortunate that his only choices were a felony or funeral. But that paradox followed from the objective reasonableness standard governing Indiana's self-defense law, and the law gave the judge no choice but to convict, he believed.

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Court of Appeals of Virginia Reverses Conviction Based Upon Interrogating Officers Not Respecting Defendant's Invocation of His Right to Counsel

Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), when a suspect is subjected to custodial interrogation, he "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Furthermore, pursuant to Edwards v. Arizona, 451 U.S. 477 (1981),

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights....[He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

It's hard to imagine a better example of an Edwards/Miranda violation than the one in the recent opinion of the Court of Appeals of Virginia in Fayne v. Commonwealth, 2025 WL 676488 (Va. App. 2025).

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Fifth Circuit Reverses Brittany Holberg's Capital Murder Conviction Based on Brady Violations

Yesterday, the Fifth Circuit reversed the capital murder conviction of Brittany Holberg in Holberg v. Guerrero, framing the case as follows:

Brittany Marlowe Holberg was 23 years old when she was sentenced to death for capital murder by a jury in Amarillo, Texas. Holberg has spent the last 27 years of her life on death row, contending that the State of Texas violated her right to due process when it chose to disobey the commands of Brady v. Maryland, 373 U.S. 83 (1963), and failed to disclose impeachment evidence that its critical trial witness was a paid informant. Under Brady and its progeny, we REVERSE and VACATE Holberg’s conviction, and REMAND the case to the district court for further proceedings consistent with this opinion.

We pause only to acknowledge that 27 years on death row is a reality dimming the light that ought to attend proceedings where a life is at stake, a stark reminder that the jurisprudence of capital punishment remains a work in progress. The death penalty itself has traversed a torturous path in this country, dragging Ms. Holberg along with it. From the return of capital punishment in the Seventies—paired with a veritable flood of habeas petitions—came attendant efforts to temper the flow. In the service of federalism and management, Congress enlisted the aid of the lower federal courts by routing review of state decisions to the district courts through the gates of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Yet capital punishment cannot survive without adherence to the fundamental constitutional girds securing the right to trial by jury. Ms. Holberg’s 27 years on death row is a showcase of the State’s failure to abide by a core structure of prosecution: the Brady doctrine.

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Supreme Court of Mississippi Reverses Drug Convictions Based on Unsupported Testimony About Edibles Being Designed For Children & Dangerous to Them

It's a simple principle of evidence law: Any testimony must be supported by an evidentiary basis. When a witness for the prosecution shoots from the hip with testimony untethered to any evidentiary basis, there's error. When that error inflames the passions of the jury, it's grounds for a new trial. A good example of this can be found in the recent opinion of the Supreme Court of Mississippi in Minor v. State, 2025 WL 634311 (Miss. 2025).

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Undisclosed Mega-Update Thread 15

Last Friday, Governor Kay Ivey removed Rocky Myers from death row and commuted his death sentence to a life sentence. Then, yesterday, Judge Jennifer Schiffer granted Adnan Syed's petition for a sentence reduction under the Juvenile Restoration Act to time served, meaning that he will remain free. Given this turn of events, I wanted to update the status of all the cases we covered on Undisclosed. And we're not done. For more detailed commentary on some of these cases, check out our recent "Relaunch" episode of Undisclosed. This will be followed by more coverage of the Adnan Syed case in April/May, coverage of all sorts of criminal justice and wrongful conviction news over the summer, and a long-form series on a single wrongful conviction case starting in August.

Top Line Numbers

Total cases covered: 27 cases.

Relief granted: 20 cases: 13 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; (9) Ronnie Long; (10) Joseph Webster; (11) Darrell Ewing; (12) Joey Watkins; (13) Jeff Titus; 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery; 1 commutation from death row: Rocky Myers; 2 commutations of sentence: (1) Cyntoia Brown; (2) Adnan Syed. 1 grant of parole: Cyrus Wilson. 1 vacated conviction/Alford plea: Wayne Braddy and Karl Willis.

Currently pending: 5 cases. (1) Pedro Reynoso's CIU petition; (2) Pam Lanier's motion for a new trial; (3) Jamar Huggins's PCR appeal; (4) Greg Lance's DNA/fingerprint testing appeal; and (5) Jason Carroll's DNA testing.

Options being explored: (1) Fred Freeman/Temujin Kensu; (2) John Brookins.

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Court of Criminal Appeals of Texas Finds No Error In Trial Judge Doing Nothing When 4 Jurors Said They Feared the Defendant Would Hurt the Prosecutor Because He Gave Her a Dirty Look

What should a court do when jurors express fear for the prosecutor based upon the defendant giving her a dirty look during trial? According to the Court of Criminal Appeals of Texas in Irsan v. State, 2025 WL 610310 (Tex.Crim.App. 2025), the court doesn't abuse its discretion when it does nothing in such a situation. But I'm not at all sure that should be the case.

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After 29 Years of Wrongful Imprisonment Starting at Age 16, Jerry Herrington is Finally a Free Man

Yesterday, Cook County Judge Alfredo Maldonado "vacated the wrongful murder conviction of Illinois Innocence Project (IIP) client Jerry Herrington, dismissing all charges and fully exonerating him." Judge Maldonado's decision came in response to a united front by the IIP and the Cook County State’s Attorney's Office based upon a litany of errors that landed Herrington in prison at age 16 for a crime he didn't commit:

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Illinois Court Reverses 1st Degree Murder Conviction Due to Judge's Refusal to Instruct the Jury on 2nd Degree Murder

When a defendant is charged with a crime, the court must instruct the jury on lesser-included offenses if such offenses are plausibly supported by the evidence. As such, when a court fails to instruct the jury on lesser-included offenses despite them being supported by the record, it can be grounds for a new trial. And, indeed, that's exactly what happened in the recent case, People v. Colbert, 2025 WL 301003 (Ill.App. 5th 2025).

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Supreme Court of Georgia Finds Testimony About Text Messages Didn't Violate Best Evidence Rule

Similar to its federal counterpart, Section 24-10-1004(1) of the Georgia Code provides that

The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if:

(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

This provision of the Best Evidence Rule is a big reason why evidence is almost never excluded under the Rule. A good recent example can be found in the recent opinion of the Supreme Court of Georgia in Tucker v. State, 2025 WL 515739 (Ga. 2025).

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Alabama Governor Kay Ivey Commutes the Death Sentence of Rocky Myers

Yesterday, Alabama Governor Kay Ivey commuted the death sentence of Rocky Myers to a sentence of life without parole. This is the first time that Governor Ivey, a staunch supporter of capital punishment, has commuted a death sentence. The last time an Alabama governor commuted a death sentence was all the way back in 1999. We investigated and covered Rocky's case on the Undisclosed Podcast with the goal of having his death sentence commuted; having him released at the time seemed like an impossibility because "an earlier attorney abandoned his case, causing him to miss a deadline to raise issues in federal court," waiving any further appeals. But now, with Governor Ivey's commutation and the questions she raised about his innocence, it seems like Rocky Myers being set free could be back on the table. So, what are the facts of Rocky's case, and why was his death sentence commuted?

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Supreme Court of Connecticut Reverses Stabbing Conviction Based on Improperly Admitted Character Evidence

Federal Rule of Evidence 404(b)(1)-(2) provides that

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Moreover, evidence that is submitted under Rule 404(b)(2) is subjected to the traditional balancing test under Federal Rule of Evidence 403, which provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 403 is a liberal rule of admissibility, under which it is difficult for a defendant to get evidence excluded.

In its forthcoming opinion in State v. Marcello E., the Supreme Court of Connecticut made clear that it is easier for Connecticut defendants to get bad character evidence excluded from trial than their federal counterparts.

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Court of Appeals of Mississippi Reverses Murder Conviction Based on Forensic Pathologist Relying on Investigator's Allegations

Mississippi Rule of Evidence 702 provides 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, is it error under Rule 702 for the court to allow a forensic pathologist to testify that the victim's cause of death was a "homicide" based on what he was told by investigators in a case? According to the recent opinion of the Court of Appeals of Mississippi in Roncali v. State, 2025 WL 560297 (Miss. App. 2025), the answer is "yes."

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