EvidenceProf Blog

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

Thursday, April 21, 2022

My Supplement to the Request for Review for Michelle Heale

On February 15, 2022, I filed a Request for Review with the New Jersey Attorney General’s Conviction Review Unit on behalf of Michelle Heale. Here was the Introduction to that Request:

On April 17, 2015, Michelle Heale was convicted of aggravated manslaughter and child endangerment based on the death of fourteen-month old Mason Hess, whom she had been babysitting. Michelle Heale is actually innocent of these crimes and would have been acquitted at trial if not for an error by her trial counsel in failing to present testimony and a report by the leading expert who could have proven her defense. Moreover, new evidence calling into question the use of the traditional triad of symptoms to diagnose Shaken Baby Syndrome – a diagnosis of exclusion, not inclusion – supports a finding of actual innocence. Indeed, this new evidence has led a New Jersey court to conclude that the evidence used to convict Ms. Heale is insufficiently reliable to even be admissible at trial.

Now, a New Jersey court has declared Shaken Baby Syndrome "akin to 'junk science'" based in large part upon testimony by the expert who was contacted by Heale's defense counsel but who never testified because they never followed up with him. As a result, I am filing a Supplement to Heale's Request for Review.  Download Michelle Heale Supplement.

-CM

April 21, 2022 | Permalink | Comments (0)

Tuesday, April 12, 2022

Undisclosed Mega-Update Thread 9

Yesterday, Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed.

Given this terrific turn of events, I wanted to do an update on the status of all of the cases we covered on Undisclosed.

Total cases covered: 27 cases.

Relief granted: 16 cases: 12 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; and (12) Joey Watkins. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 6 cases. (1) Pedro Reynoso's CIU petition; (2) Fred Freeman/Temujin Kensu's CIU petition; (3) John Brookins's DNA petition; (4) Jeff Titus's CIU petition; (5) Pam Lanier's motion for a new trial; and (6) Wayne Braddy and Karl Willis's motion for a new trial.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Greg Lance; and (4) Jason Carroll

Options being explored: 1 case: Rocky Myers

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April 12, 2022 | Permalink | Comments (3)

Monday, April 11, 2022

Georgia Judge Grants Joey Watkins's Petition for Writ of Habeas Corpus

Today, Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed. Here is Judge Thompson's opinion. The State now has four options: (1) appeal by right to the Supreme Court of Georgia; (2) drop the charges against Joey; (3) seek to negotiate a plea deal with Joey to avoid a new trial; or (4) have a retrial. In terms of appealing, though, the State's prospects seem pretty dim because Joey won on both of the issues in his habeas petition, and he only needed to win on one of the issues to get a new trial. Therefore, the State would need to win both issues on appeal. So, what were those issues?

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April 11, 2022 | Permalink | Comments (3)

Monday, March 21, 2022

Eastern District of California Finds Expert Testimony Based on Inadmissible Evidence Admissible in Insurance Dispute

Federal Rule of Evidence 703 provides that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect (emphasis added). 

So, what facts or data do experts in a particular field rely on in forming opinions? The recent opinion of the United States District Court for the Eastern District of California in Burns v. Progressive Casualty Insurance Company, 2022 WL 827036 (E.D.Cal. 2022), provides one example.

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March 21, 2022 | Permalink | Comments (0)

Tuesday, March 15, 2022

Further DNA Testing is Approved in the Adnan Syed Case

Today, Judge Melissa M. Phinn granted the Joint Petition for Post Conviction DNA Testing in the Adnan Syed case. Here is the judge's order:

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So, let's break that down.

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March 15, 2022 | Permalink | Comments (1)

Friday, March 11, 2022

Adnan Syed & the State File a Joint Petition for (Further) DNA Testing

On Tuesday, Adnan Syed and the State of Maryland filed a Joint Petition for Post Conviction DNA Testing. So, what does this mean?

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March 11, 2022 | Permalink | Comments (7)

Tuesday, March 8, 2022

Ninth Circuit Finds No Error in District Court's Refusal to Sequester State's Summary Witness in Fraud Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The recent case United States v. Fujinaga, 2022 WL 671018 (9th Cir. 2022), provides a good example of Rule 615(c) in action.

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March 8, 2022 | Permalink | Comments (0)

Friday, March 4, 2022

Texas Court Finds Witness's Testimony That He'd Found Christ Didn't Open Door to Impeachment Through His Criminal Record

Texas Rule of Evidence 609(a) provides that

Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

That said, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. So, was this exception triggered in Cortinas v. State, 2022 WL 619158 (Tex.App. 2022)?

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March 4, 2022 | Permalink | Comments (0)

Thursday, March 3, 2022

Tenth Circuit Finds No Rule 704(b) Issue With Officers' Testimony in Drug Distribution Case

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Courts, however, have construed this prohibition very narrowly and allowed experts to come awfully close to offering opinions about defendants' mental states in drug distribution cases. The latest example can be found in United States v. Draine, 2022 WL 598972 (10th Cir. 2022).

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March 3, 2022 | Permalink | Comments (0)

Wednesday, March 2, 2022

2022 Evidence Summer Workshop (ESW2022)

The Evidence Summer Workshop will be held at at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. Details below:

Dear Colleagues,

We are delighted to announce the 2022 Evidence Summer Workshop (ESW2022) to be held at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. (In the event of a new COVID wave, ESW2022 will be moved to Zoom, but we are hoping to finally be in person again.)
The Evidence Summer Workshop provides evidence scholars an annual venue to present their latest projects, share ideas, and develop lasting relationships among each other. The Workshop features two types of sessions: i) Sessions for working drafts with assigned commentators, and ii) Smaller breakout sessions for ideas at an earlier stage of development.

All evidence scholars, whether presenting or not, are welcome to register and attend. Those wishing to present should submit an abstract or short summary (250 words for working papers, 100 words for early ideas) by March 15, 2022 on the conference webpage, evidenceworkshop.com. We welcome submissions from scholars at all stages of their careers, though some preference will be given to those within their first decade of teaching. Selection decisions will be made by April 1.

ESW2022 includes all meals (dinner, breakfast, lunch) for registrants. Participants are responsible for their own housing and travel costs. A block of rooms will be reserved at a nearby hotel for ESW participants. Additional information will be available soon at evidenceworkshop.com.

The 2022 Evidence Summer Workshop is generously made possible by Vanderbilt Law School’s Branstetter Litigation and Dispute Resolution Program.

If you have any questions, or would like to serve as a commentator on the papers, please contact any of us.

Ed Cheng (Vanderbilt), edward.cheng@vanderbilt.edu<mailto:edward.cheng@vanderbilt.edu>
Alex Nunn (Arkansas), ganunn@uark.edu<mailto:ganunn@uark.edu>
Julia Simon-Kerr (Connecticut), julia.simon-kerr@uconn.edu<mailto:julia.simon-kerr@uconn.edu>
Maggie Wittlin (Fordham), mwittlin1@fordham.edu<mailto:mwittlin1@fordham.edu>

March 2, 2022 | Permalink | Comments (0)

Wednesday, February 16, 2022

My Request for Review for Michelle Heale in a "Shaken Baby Syndrome" Case

Yesterday, I filed a Request for Review with the New Jersey Attorney General’s Conviction Review Unit on behalf of Michelle Heale. Here's the Introduction to that Request:

On April 17, 2015, Michelle Heale was convicted of aggravated manslaughter and child endangerment based on the death of fourteen-month old Mason Hess, whom she had been babysitting. Michelle Heale is actually innocent of these crimes and would have been acquitted at trial if not for an error by her trial counsel in failing to present testimony and a report by the leading expert who could have proven her defense. Moreover, new evidence calling into question the use of the traditional triad of symptoms to diagnose Shaken Baby Syndrome – a diagnosis of exclusion, not inclusion – supports a finding of actual innocence. Indeed, this new evidence has led a New Jersey court to conclude that the evidence used to convict Ms. Heale is insufficiently reliable to even be admissible at trial.

Further details about the case can be found in Elizabeth Weill-Greenberg's article in The Appeal.

-CM

February 16, 2022 | Permalink | Comments (0)

Wednesday, February 2, 2022

My New Article: "License to Kill?: A New Test for the New Crime Exception"

I have posted a draft of my new article, License to Kill?: A New Test for the New Crime Exception, on SSRN. Here is the abstract:

Imagine that a police officer racially profiles and forcibly arrests an African American man without even reasonable suspicion that he committed a crime. Further, imagine that the man responds by committing a crime such as running away as the officer reaches for his handcuffs or giving the officer a fake name when asked to identify himself. The new crime exception to the Fourth Amendment exclusionary rule allows for prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Courts largely have applied this new crime exception without any analytical framework or any regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

This article argues that the new crime exception has swallowed the exclusionary rule, but that courts can recalibrate the exception by returning it to its roots in the attenuation doctrine. By applying that doctrine’s traditional framework with a central focus on the purpose and flagrancy of the defendant’s new crime, courts can replace their current “all or nothing” approach with a cost-benefit balancing that will better serve public policy goals in a more nuanced way. This central focus on the purpose and flagrancy of the new crime should mirror the approach currently applied under a different exclusionary rule that deals with the dichotomy between past and future crimes: the attorney-client privilege.

Any comments and feedback are welcome and appreciated.

-CM

February 2, 2022 | Permalink | Comments (0)

Monday, January 31, 2022

Sixth Circuit Finds Evidence About Alleged Sex Trafficking Victims' History of Prostitution Inadmissible Under Rape Shield Rule

Federal Rule of Evidence 412(a) provides that

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

That said, Federal Rule of Evidence 412(b)(1)(C) provides that

The court may admit the following evidence in a criminal case:....

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

So, should a defendant charged with sex trafficking be able to present evidence that the alleged victims of that trafficking had engaged in prostitution? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Bixler, 2022 WL 247740 (6th Cir. 2022).

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January 31, 2022 | Permalink | Comments (1)

Sunday, January 30, 2022

District of Minnesota Broadly Construes the Term "Claim" For Purposes of Applying Rule 408

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority (emphasis added)

So, when is there a "claim" sufficient to trigger Rule 408? Let's take a look at the recent opinion of the United States District Court for the District of Minnesota in Steffen v. Northway Resource Development, LLC, 2022 WL 228243 (D.Minn. 2022).

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January 30, 2022 | Permalink | Comments (0)

Thursday, January 27, 2022

District of Maine Opinion in Whole Foods Litigation Reveals That Rule 408 is Not a Discovery Rule

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Like other rules of evidence, Rule 408 is a rule of (in)admissibility, not a rule of discovery, as is made clear by the recent opinion of the United States District Court for the District of Maine in Opio v. Whole Foods Market Group, Inc., 2022 WL 227114 (D. Maine 2022).

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January 27, 2022 | Permalink | Comments (0)

Tuesday, January 25, 2022

Federal Rule of Evidence 702 Proposed Amendments: Bringing Expert Analysis Under Consistent Judicial Scrutiny

Tomorrow at 1:00pm, I will be presenting as part of the CLE Panel: Federal Rule of Evidence 702 Proposed Amendments: Bringing Expert Analysis Under Consistent Judicial Scrutiny. Here at the details.

-CM

January 25, 2022 | Permalink | Comments (0)

Thursday, January 20, 2022

Eastern District of California Allows For the Admission of Background Evidence Regarding Reinsurance

There are five types of relevant evidence under Federal Rule of Evidence 401: (1) direct evidence; (2) circumstantial evidence; (3) character evidence; (4) impeachment evidence; and (5) background evidence. So, what is background evidence, and why is it relevant?

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January 20, 2022 | Permalink | Comments (1)

Tuesday, January 18, 2022

Eastern District of Missouri Finds Limitation of Cross-Examination Under Rule 608(b) Did Not Warrant a New Trial

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness (emphasis added).

As the use of the word "may" in the Rule makes clear, judges retain a good deal of discretion in deciding whether to allow questioning about specific instances of dishonesty.

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January 18, 2022 | Permalink | Comments (0)

Monday, January 17, 2022

Court of Appeals of Washington Finds 1981 Newspaper Article Admissible Against Mobil as an Ancient Document

Similar to its federal counterpart, Washington Rule of Evidence 901(b)(8) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered.

Rule 901(b)(8), however, only covers authentication. So what about hearsay?

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January 17, 2022 | Permalink | Comments (1)

Friday, January 14, 2022

Colorado Court of Appeals Reverses Drug Conviction Based on Insufficient Chain of Custody

Similar to its federal counterpart, Colorado Rule of Evidence 901(a) provides that

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

Typically, with drug evidence, the State satisfies the authentication requirement through chain of custody logs, i.e., documentation detailing every State agent who handled drugs taken from the defendant. Small problems with the chain of custody will usually not prevent the admission of drug evidence, but bigger problems create a barrier to admissibility. The recent opinion of the Colorado Court of Appeals, Division V in People v. Rodriguez, 2022 WL 120784 (Colo.App. 2022), falls into that latter category.

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January 14, 2022 | Permalink | Comments (1)