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.
Saturday, June 15, 2019
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.
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.
Thursday, June 6, 2019
On March 8th, the Court of Appeals of Maryland issued an opinion denying Adnan Syed a new trial, finding that (1) he had waived his claim that trial counsel was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) he had failed to prove the prejudice prong of his claim that trial counsel was ineffective based on failure to contact alibi witness Asia McClain. So now, almost three months later, how much of an impact is the court's opinion having in Maryland?
Wednesday, June 5, 2019
Judge Threatens to Hold Attorney in Contempt for Trying to Make an Offer of Proof of Her Client's Actual Innocence
The offer of proof is a core part of the American justice system. So, what is an offer of proof? It's proof of what a witness would say or what a piece of evidence would show despite (1) that witness/evidence being unavailable; or (2) the judge deeming the evidence or the witness's testimony inadmissible. Indeed, in this latter scenario, a party typically needs to make an offer of proof to preserve the issue for appellate review. According to Federal Rule of Evidence 103(a)(2),
A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:...
if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
So, why in the world would a judge threaten to hold an attorney in contempt for seeking to make an offer of proof regarding a witness who could prove the actual innocence of her client? That was the question addressed by the Supreme Court of Indiana in its recent opinion in Bedolla v. State, 2019 WL 2264236 (Ind. 2019).
Thursday, May 30, 2019
Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for dying declarations. Specifically, it provides an exception,
[i]n a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
As the recent opinion of the Court of Appeal, Second District, Division 8, California in People v. Ramirez, 4 Cal.App.5th 823 (Cal.App. 2019), makes clear, however, California's dying declarations exception is broader.
Saturday, May 25, 2019
On May 23rd, the Supreme Court adopted the Daubert test for the admission of expert evidence in In re Amendments to the Florida Evidence Code. Just two years ago, that same court had rejected the Daubert by a close 16-14 vote. So, what does the change mean?
Wednesday, May 22, 2019
Yesterday, we got the great news that Judge Barbara McDermott had declared Terrance Lewis innocent, leading to his release today. Given this terrific, and surprising, turn of events, I wanted to do an update on the status of all of the cases we've covered on Undisclosed.
Saturday, May 18, 2019
Sixth Circuit Awards New Trial Based Upon Prosecutor's Questions/Comments About the Defendant's Worship of Jesus Malverde Statue
Federal Rule of Evidence 610 states that
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
This is a Rule that very rarely comes into play...but it was one of the grounds for a new trial in this week's opinion of the Sixth Circuit in United States v. Acosta, 2019 WL 2120168 (6th Cir. 2019)
Monday, May 13, 2019
Eighth Circuit Finds No Problem With the Admissions of Photos/Video of a Defendant's Unrelated Arrest Weeks Before the Crime Charged
Assume that a defendant is charged with robbery and related crimes.
The store’s surveillance video captured the incident. The man was wearing a black ski mask and sunglasses, so his face was hidden. The robber also donned a black jacket with red and white trim, a red hooded sweatshirt, red shoes with one white shoelace and one red shoelace, and latex gloves.
Assume that the defendant had been arrested a few weeks before the robbery for an unrelated charge and was "wearing a jacket and shoes that matched the jacket and shoes worn by the person that committed the robbery." Should the prosecution be able to introduce video/photos of the defendant at jail from his prior arrest? That was the question addressed by the Eighth Circuit in its recent opinion in United States v. Conner, 2019 WL 2039858 (8th Cir. 2019).
Friday, May 10, 2019
On Wednesday, Senators Dan Sullivan and Dick Durbin introduced the Due Process Protection Act: S.1380 - A bill to amend the Federal Rules of Criminal Procedure to remind prosecutors of their obligations under Supreme Court case law. The language of the bill isn't available yet, but a press release contains this statement by Senator Sullivan:
Our Constitution and Supreme Court have long established fundamental, commonsense protections for citizens facing prosecution – including the evidence disclosure obligation outlined in the case, Brady v Maryland....Unfortunately, this obligation is sometimes ignored to the detriment of our entire criminal justice system and inherent notions of fair play. Alaskans are keenly aware of this kind of miscarriage of justice, which was rampant in the high-profile prosecution of the late Senator Ted Stevens, a case that was dismissed following egregious due process violations. Our legislation is flexible and narrowly tailored to ensure that prosecutors abide by their constitutional obligations, and can be held accountable if they do not.
Thursday, May 2, 2019
Court of Special Appeals of Maryland Finds Ineffective Assistance of Counsel Based on Failure to Request an Alibi Instruction
Yesterday, the Court of Special Appeals of Maryland issued an opinion in a kidnapping/murder case in which the defendant claimed that he received the ineffective assistance of counsel in connection with an alibi. The primary evidence against the defendant was a witness who did not see the kidnapping/murder but who claimed to know all the details of the crime in a story that changed over various tellings. This case was not the Adnan Syed case, but Adnan's case might have ramifications for this case...because the defendant was granted a new trial.
Wednesday, May 1, 2019
Court of Appeals of South Carolina Finds Wrongfully Convicted Defendants Don't Have a Constitutional Right to Compensation
Recently, the Court of Appeals of South Carolina issued its opinion in Palmer v. State. That opinion answered a simple question: Does a wrongfully convicted defendant have a Constitutional right to compensation for his years of imprisonment? And, according to the court, the answer to that question is "no."
Tuesday, April 30, 2019
Court of Appeals of Minnesota Finds Courts Can and Often Must Infer Causation Under "Forfeiture by Wrongdoing" Hearsay Exception
A statement offered against a party who wrongfully caused or acquiesced in wrongfully causing the declarant's unavailability as a witness and did so intending that result.
In effect, this is a witness tampering rule, and the Minnesota courts have held that the proponent of evidence under this hearsay exception must prove four elements
(1) that the declarant-witness is unavailable; (2) that the defendant engaged in wrongful conduct; (3) that the wrongful conduct procured the unavailability of the witness; and (4) that the defendant intended to procure the unavailability of the witness.
So, what happens when the proponent of evidence under this "forfeiture by wrongdoing" exception has direct evidence to establish (1), (2), and (4), but not (3)? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Shaka, 2019 WL 1890550 (Minn.App. 2019).
Friday, April 19, 2019
Thursday, April 11, 2019
Breaking Down the Innocence Network/MacArthur Justice Center Amici Curiae Brief in the Adnan Syed Case
In Tuesday's post, I noted that three amici curiae ("friends of the court") briefs were filed in support of the Motion for Reconsideration in the Adnan Syed case. In this post, I will summarize the argument made in the amici curiae brief submitted by The Innocence Network and the MacArthur Justice Center.
Wednesday, April 10, 2019
In yesterday's post, I noted that three amici curiae ("friends of the court") briefs were filed in support of the Motion for Reconsideration in the Adnan Syed case. In this post, I will summarize the argument made in the amici curiae brief submitted by the National Association of Criminal Defense Lawyers (NACDL).
Tuesday, April 9, 2019
In yesterday's post, I focused upon the fourth argument advanced in the Motion for Reconsideration to the Court of Appeals of Maryland in the Adnan Syed case. Today, there was some interesting news that has bearing upon the first argument made in that Motion: Three amici curiae ("friends of the court") briefs were filed in support of the Motion. In the next three posts, I will summarize the arguments made in these briefs.
Monday, April 8, 2019
Today, the defense filed its Motion for Reconsideration to the Court of Appeals of Maryland in the Adnan Syed case. In this first post on the Motion, I will (1) explain how the Motion will be handled; and (2) describe (what I find to be) the Motion's most compelling argument.
Tuesday, April 2, 2019
In Sunday's fourth (and final) episode of HBO's "The Case Against Adnan Syed," it was noted that the HBO team was able to talk with Jay Wilds in January 2019. Among other things, he told them the following:
So, is this statement credible, and, if so, what does it mean?