EvidenceProf Blog

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

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 (13)

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 (3)

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)

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.


Jonathan Irons

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October 7, 2019 | Permalink | Comments (1)

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:

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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)