EvidenceProf Blog

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

Friday, January 24, 2020

Louisiana State University, Paul M. Hebert Law Center Seeks a Visiting Professor

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January 24, 2020 | Permalink | Comments (0)

Wednesday, January 22, 2020

Ronnie Long Petition for Rehearing En Banc

Tuesday, January 21, 2020

Theo Wilson Stipulations

Monday, January 13, 2020

8th Circuit Applies New Portion of Prior Consistent Statement Rule in Sexual Abuse Case

Federal Rule of Evidence 801(d)(1)(B) used to only allow for admission of a prior consistent statement when there had been a claim of recent fabrication based upon an improper motive. So, for instance, if Carl accused Dan of a murder days after the killing, this statement could be used if defense counsel later claimed at Dan's murder trial that Carl was only implicating Dan due to a recent favorable plea agreement.

After a recent amendment, however, Federal Rule of Evidence 801(d)(1)(B) now states that

A statement that meets the following conditions is not hearsay:....

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground

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January 13, 2020 | Permalink | Comments (0)

Sunday, January 12, 2020

Supreme Court of Georgia Finds Proper Authentication of Facebook Printouts in Murder Trial

Like Federal Rule of Evidence 901(a), OCGA § 24-9-901(a) states that

The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, what is required to authenticate Facebook evidence under this standard? This was the question addressed by the Supreme Court of Georgia in its recent opinion in Nicholson v. State, 2019 WL 7046856 (Ga. 2019).

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January 12, 2020 | Permalink | Comments (1)

Wednesday, January 8, 2020

Ronnie Long Letter

Lamar Johnson Letter

Download SB 541

January 8, 2020 | Permalink | Comments (0)

Monday, December 30, 2019

Court Rejects Admission of Alleged Excited Utterance by Unidentified Declarant

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

As Rule 803 makes clear, excited utterances and other statements satisfying a Rule 803 hearsay exception are admissible regardless of whether the declarant is available. So, for instance imagine that Ed is on his cell phone with his friend Fred and shouts, "Oh my God! Dan just shot Vince." Even if Ed is unavailable (e.g., he has passed away before trial), Fred can testify about his excited utterance. But what happens when the declarant is unidentified?

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December 30, 2019 | Permalink | Comments (1)

Sunday, December 29, 2019

United States District Court for the District of New Mexico Finds Character is Not "In Issue" in a Fraud Case

Federal Rule of Evidence 405(b) states that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

So, when is a person's character an essential element of a charge, claim, or defense? According to some courts, character is an essential element of a charge, claim, or defense

when it is “a material fact that under the substantive law determines rights and liabilities of the parties.”...In such a case the evidence is not being offered to prove that the defendant acted in conformity with the character trait; instead, the existence or nonexistence of the character trait itself “determines the rights and liabilities of the parties.”... In a defamation action, for example, the plaintiff's reputation for honesty is directly at issue when the defendant has called the plaintiff dishonest. Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986).

I prefer a formulation that says that character is an essential element of a charge, claim, or defense when evidence of character is necessary to prove/disprove a charge, claim, or defense. For instance, in a negligent hiring/supervision case, how do you prove that a city was negligent in hiring/supervising a bus driver with a history of drunk driving? Answer: by presenting evidence of the bus driver's history of being a drunk driver. How does a newspaper facing a defamation lawsuit prove the truth of its allegation that a politician is an adulterer? Answer: By presenting evidence of his acts of adultery. How does the State disprove the "lack of predisposition" portion of a defendant's entrapment defense? Answer: By presenting evidence of his prior related crimes. How does a defendant prove an insanity based upon delusional thinking? Answer: By presenting evidence of his delusion.

As far as I can tell. the above five cases are the main five cases covered by Federal Rule of Evidence 405(b). But what about a fraud case?

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December 29, 2019 | Permalink | Comments (0)

Sunday, December 8, 2019

11th Circuit Holds Coast Guard Personnel Can Offer Lay Opinion Testimony That Jettisoned Objects Were Cocaine

Federal Rule of Evidence 701 states that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

With regard to subsection (c), the Advisory Committee's Note to the 2000 amendment states that

The amendment is not intended to affect the “prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”...

For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert....Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702.

So, should a court allow United States Coast Guard personnel to offer lay opinion testimony "that objects jettisoned from [a] go-fast vessel were cocaine bales"? That was the questioned addressed by the United States Court of Appeals for the Eleventh Circuit in its recent opinion in United States v. Lugo, 2019 WL 4940590 (11th Cir. 2019).

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December 8, 2019 | Permalink | Comments (2)

Sunday, December 1, 2019

Supreme Court of Nebraska Opinion Reveals Broad "Crime of Violence" Exception to its Spousal Privilege

Every state has some type of marital privilege, and many states have two. Depending on the jurisdiction, the spousal testimony privilege either provides that

-a defendant spouse can prevent his/her spouse from testifying against him/her; or

-a spouse who is called to testify can refuse to testify against his/her spouse.

And, depending on the jurisdiction, the confidential marital communications privilege provides that:

-a defendant spouse can prevent his/her spouse (or ex-spouse) from testifying about confidential marital communications between the two; or

-a spouse  (or ex-spouse) who is called to testify can refuse to testify about confidential marital communications between the two.

Across jurisdictions, however, there is generally a clear exception to either privilege. But Nebraska's exception appears to be much broader.

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December 1, 2019 | Permalink | Comments (0)

Monday, November 25, 2019

Possible Next Steps in the Adnan Syed Case

Today, the United States Supreme Court denied certiorari in the Adnan Syed case, meaning that the Court will not hear his appeal from the 4-3 opinion of the Court of Appeals of Maryland denying him a new trial:

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So, what are possible next steps in Adnan's case?

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November 25, 2019 | Permalink | Comments (15)

Friday, November 22, 2019

A Primer on Today's Supreme Court Conference in the Adnan Syed Case

Today, the United States Supreme Court will consider Adnan Syed's petition for writ of certiorari. That petition asks the Supreme Court to take up the following question:

Whether a court evaluating prejudice under Strickland v. Washington, 466 U.S. 668 (1984), must take the State’s case as it was presented to the jury, as ten state and federal courts have held, or whether the court may instead hypothesize that the jury may have disbelieved the State’s case, as the Maryland Court of Appeals held below.

So, what should we expect?

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November 22, 2019 | Permalink | Comments (4)

Wednesday, November 20, 2019

United States District Court for the Western District of Washington Finds Experts Can't Testify About Use of Appropriate Force in Excessive Force Case

Federal Rule of Evidence 704(a) states that

An opinion is not objectionable just because it embraces an ultimate issue.

That said, while experts are allowed to render opinions on ultimate factual issues, they are not allowed to render opinions that constitute legal conclusions and invade the province of the jury. A good example of this latter type of opinion testimony can be found in the recent opinion of the United States District Court for the Western District of Washington in Bao Xuyen Le v. Reverend Dr. Martin Luther King, Jr. County, 2019 WL 2289681 (W.D.Wash. 2019).

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November 20, 2019 | Permalink | Comments (1)

Sunday, November 17, 2019

Superior Court of the Virgin Islands Grapples With the Distinction Between Habit and Character Evidence

Similar to its federal counterpart, Virgin Islands Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

So, what's the dividing line between inadmissible propensity character evidence and admissible habit evidence under Rule 406? This was thee question of first impression addressed by the Superior Court of the Virgin Islands in its recent opinion in Crawford v. Bobeck, 2019 WL 3564487 (2019).

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November 17, 2019 | Permalink | Comments (0)

Saturday, November 16, 2019

Tenth Circuit Finds Alleged Co-Conspirator's Suicide Note Taking Sole Responsibility Inadmissible in Embezzlement Trial

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, can an alleged co-conspirator's admission of (sole) fault for criminal wrongdoing be admissible under Rule 804(b)(3)? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Hammers, 2019 WL 5876843 (10th Cir. 2019).

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November 16, 2019 | Permalink | Comments (1)

Wednesday, November 6, 2019

A Post on the Oral Arguments in the Joey Watkins Case

Today, there were oral arguments in the Supreme Court of Georgia in the Joey Watkins case, which we covered in Season 2 of the Undisclosed Podcast. So, what happened at those oral arguments, and what can we expect?

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November 6, 2019 | Permalink | Comments (6)

Friday, November 1, 2019

The Partial Alibi Strawman & The Defense's Reply Brief in the Adnan Syed Case

Today, the legal team for Adnan Syed filed its Reply Brief in Support of Certiorari. This is the last document that will be filed before the Supreme Court decides whether to hear Adnan's case. All of the documents that have been filed in this case will now be distributed to the Supreme Court justices. Adnan's case will then be discussed at conference, with the likeliest dates being November 15th, November 22nd, December 6th, or December 13th. We will likely hear the Court's decision the following Monday. If 4+ Justices agree to "grant cert," the Supreme Court will hear the case. If 3 or fewer Justices agree to "grant cert," the Supreme Court will not hear the case, and the alibi appeal will be over. So, what does Adnan's team argue in its Reply Brief?

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November 1, 2019 | Permalink | Comments (6)

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 (3)

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


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


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


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


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


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


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


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

Chester Hollman III


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


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


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


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


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

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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


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.

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Rocky Myers


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


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.


October 10, 2019 | Permalink | Comments (2)