EvidenceProf Blog

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

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 (0)

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)

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 (10)

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:

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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


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


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


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


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


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

Willie 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


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

Chester Hollman III


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


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

Ronnie Long


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


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

Pamela Lanier


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

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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


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

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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).


August 5, 2019 | Permalink | Comments (6)

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)

Tuesday, July 30, 2019

Hawaii Case Addresses Intersection Between the Right to a Public Trial & Witness Sequestration Rule

Similar to its its federal counterpart, Hawai'i Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

Meanwhile, the Sixth Amendment provides an accused with "the right to a speedy and public trial." So, is there a conflict between Rule 615 -- a rule of witness sequestration -- and the right to a public trial?

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July 30, 2019 | Permalink | Comments (1)

Sunday, July 28, 2019

Court of Appeals of Indiana Fleshes Out Familial Hearsay Exception

Similar to its federal counterpart, Indiana Rule of Evidence 803(19) provides an exception to the rule against hearsay for

A reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community—concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

There is scant caselaw on this hearsay exception, but the recent opinion of the Court of Appeals of Indiana in Wilson v. State, 2019 WL 3022785 (Ind.App. 2019), does a good job of explaining how parties generally (fail to) satisfy it.

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July 28, 2019 | Permalink | Comments (0)

Saturday, July 27, 2019

Second Circuit Opinion Fleshes Out Common Law Rule of Completeness

Federal Rule of Evidence 106, the rule of completeness, provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

So, imagine that Defendant is on trial for murdering Victim. During its case-in-chief, the prosecution wants to introduce part of of a letter Defendant sent Victim, which stated, "I'm going to kill you." Assume, however, that (1) another part of the letter says, "Just kidding about that whole killing thing;" (2) Defendant sent Victim a second letter the next day that said, "Just kidding about that whole killing thing;" or (3) Defendant left a voicemail on Victim's cell phone the next day, saying, "Just kidding about that whole killing thing." Under any of these three scenarios, the rule of completeness would say that fairness requires that the defense could introduce the exculpatory statement at the same time as the inculpatory statement rather than having to wait to introduce it (during cross-examination or the defense case).

But now, assume a fourth scenario, in which Defendant tells Victim the next day in front of Friend, "Just kidding about the whole killing thing." What does the rule of completeness tell us about this scenario.

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July 27, 2019 | Permalink | Comments (0)

Friday, July 12, 2019

Carolina Academic Press Releases Expert Evidence by Andrew Jurs

Carolina Academic Press has released Expert Evidence by Andrew Jurs.

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Expert evidence serves as the highly contextual core of litigation, and this textbook has been designed to bring a practice-oriented lens to the issue. The book begins with materials breaking down the central rules of evidence and civil procedure constraining presentation of experts, then moves into application of those rules to various common disciplines in criminal and civil litigation.

Throughout the book, students will engage with real-world writing exercises to apply the rules in context, to sharpen analytical skills, and to prepare for their transition to practice. As the student progresses into the subject-specific materials, each section raises significant questions about the underlying reliability of each discipline but also demonstrate an analytical framework to serve as a template for future encounters with unfamiliar disciplines.

There is a set of 127 PowerPoint slides available upon adoption of this book. Click here to view a sample presentation. If you are a professor using this book for a course, please contact Beth Hall at bhall@cap-press.com to request your slides.

July 12, 2019 | Permalink | Comments (3)

Tuesday, July 9, 2019


LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching. We may consider applications from persons who specialize in other areas as additional needs arise.

We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Clinical Legal Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred.

We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing.  A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester.  The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum.  Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing.

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.       


Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:

Melissa T. Lonegrass and Christina M. Sautter

Co-Chairs, Faculty Appointments Committee

c/o Pam Hancock (or by email to phancock@lsu.edu)

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, Louisiana 70803-0106

July 9, 2019 | Permalink | Comments (1)

Saturday, July 6, 2019

Court of Appeals of New York Finds Brady Violation After Prosecutor Places Crime Scene Video in "Irrelevant" Box & Doesn't Disclose It

A defendant is charged with second degree murder based on a shooting outside an apartment building. In closing argument, defense counsel says:

“Where is that video surveillance? Wouldn't you think, ladies and gentlemen, that if there was video camera surveillance at 48 St. Paul's Place, that would be very important, that possibly could show what it was that took place; don't you think it would have shown who actually shot [the victim]? We don't have that video.”

The prosecutor then responds:

“[Y]ou heard from [defense counsel] that there are video cameras inside 48 St. Paul's Place; inside the lobby, okay. Common sense, ladies and gentlemen, you saw that the police recovered video footage from [defendant's apartment building], ... which is around the corner in the direction of flight that the defendant went. Isn't it common sense that they went to the building where the actual event took place in front of? And isn't it common sense that you would have seen that video if there had been a video?”

"In fact, there was a video from a surveillance camera in the lobby and the prosecutor had reviewed it before the trial." Brady violation? According to the recent opinion of the Court of Appeals of New York in People v. Ulett, 2019 WL 2583106 (N.Y. 2019).

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July 6, 2019 | Permalink | Comments (2)

Saturday, June 29, 2019

Court of Appeals of Arizona Finds Juvenile Sex Adjudications Are Admissible Under the State's Unique Rule 404(c)

Federal Rule of Evidence 404 and most state counterparts contain two subsections: (a) and (b). Arizona's version of Rule 404 has a subsection (c). In pertinent part, Arizona Rule of Evidence 404(c) states that

In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party's alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. In such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an inference therefrom, may also be admitted.*

In its recent opinion in State v. Rose, 441 P.3d 999 (Ariz.App. 2019) the Court of Appeals of Arizona, Division 2 answered an interesting question under this rule.

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June 29, 2019 | Permalink | Comments (0)

Sunday, June 16, 2019

Proposed Comment to Virginia Rules of Professional Conduct Would Require Prosecutors to Specifically Identify Exculpatory Evidence

Imagine that Defendant Dan is charged with murder. During his preparation for trial, Prosecutor Peters learns that Alternate Suspect Samuels was investigated by police. This investigation of Samuels is seen in four pages of documents from the police department, and Peters has 1,500 pages of discovery, including the Samuels documents, he will have to turn over to Public Defender Parker. In most jurisdictions, a prosecutor like Peters could "bury the lede" by including the Samuels documents in the middle of he 1,500 pages of discovery and hope that an overburdened public defender like Parker doesn't spot the needle in the haystack. But, if a proposed comment to Virginia Rules of Professional Conduct passes, that could all change.

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June 16, 2019 | Permalink | Comments (2)

Saturday, June 15, 2019

The Federal Rules of Evidence & Discovery in Tax Cases

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.

In turn, various other Federal Rules supply the discovery requirements connected with expert testimony. For example, Federal Rules of Criminal Procedure 16(a)(1)(F) and 16(a)(1)(G) provide the discovery requirements in federal criminal cases. Meanwhile, as the recent opinion of the United States Tax Court in Skolnick v. Commissioner of Internal Revenue makes clear, Tax Rule 143 governs discovery in federal tax cases.

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June 15, 2019 | Permalink | Comments (0)

Saturday, June 8, 2019

Looking at the Circuit Split Over Whether One or Two Prosecution Case Agents Can be Immunized From Witness Sequestration Under Rule 615(b)

Federal Rule of Evidence 615 states 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 purpose of this witness sequestration rule is to prevent later witnesses from hearing the testimony of earlier witnesses and perhaps consciously or unconsciously tailoring their testimony to the testimony of earlier witnesses. For example, assume that there are two eyewitnesses to a murder: Ed and Fred. Assume that Fred recalls the murderer wearing a green shirt and is in the courtroom when Ed testifies that the murderer was wearing a blue shirt. When Fred later testifies, he could consciously choose to testify that the murderer wore a blue shirt so that his testimony matches Ed's testimony. Alternatively, Ed's testimony could corrupt Fred's memory and cause him to testify about a blue shirt because that is now what he "remembers."

This is why Rule 615 allows a party to move to sequester most witnesses. As you can see, though, there are four exceptions. But there is a clear circuit split under the second exception.

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June 8, 2019 | Permalink | Comments (0)