EvidenceProf Blog

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

Wednesday, November 24, 2021

Clemency for Nikki Addimando

On September 28, 2017, Nikki Addimando fatally shot her boyfriend Christopher Grover. There is significant evidence that Chris was physically and sexually abusing Nikki and that she feared for her life when she fatally shot him:

In 2017, Addimando was a stay-at-home mom-of-two living in Poughkeepsie, New York with her partner, gymnastics coach Christopher Grover. On the night of September 27th, she shot Grover to death in their home in what she described as the culmination of years of physical and sexual torture. A gun-wielding Grover had threatened to kill her and then himself, Addimando told authorities, and when he momentarily dropped the weapon, she grabbed it and shot him in self-defense.

For years, Addimando had told friends, healthcare providers, and even the police that she was being abused. Her injuries—many photographed and documented by professionals—were horrifying, and included bruises, black eyes, and genital burns resulting from, she said, Grover assaulting her with a spoon heated over the stove. A victim assistance program Addimando turned to for support had assessed that she was in the category of victims at highest risk of being murdered by her partner. Grover’s phone had been used to search for the phrase, “​​Will police know if ahe [sic] was asleep when I shoot her?” just before he died, supporting Addimando’s claim that her life was in immediate danger on that particular evening.

Addimando 2

Nikki and her kids

The day before Nikki shot Chris, Child Protective Services (CPS) had come to their apartment. A woman named Lizabeth, a social worker whose kids went to the gym where Chris and Nikki worked, was talking with her friend about the gym, and the friend 

started going on, and she said, well, we’re all worried about Nikki. And then I was like, oh, you’re talking about Chris. Chris, the head coach Chris. And I was like, you know, very much in disbelief. And I can remember her saying that people were afraid that it was getting worse, that there were bruises that often were seen on her on a regular basis. And she said, you know, I told my friends I was going to ask you because you’re a social worker, what to do. And I said, well, why is no one called CPS like why? There’s kids in the home? Why is no one you know, called Child Protective Services? And she said, I think you know, they’re scared to, they don’t know if they should.

I provided pro bono assistance to Nikki's defense team, including reviewing all of her jailhouse phone calls to determine whether they contained anything incriminatory. They did not. And yet, at trial, the prosecution portrayed Nikki as a black widow who wanted Chris dead and who had self-inflicted her own injuries. In 2019, the jury found Nikki guilty of second-degree murder, and Judge Edward McLoughlin sentenced her to 19 years in prison.

“It’s clear you’ve been abused by other men,” McLoughlin told Nikki. She may have “reluctantly consented” to “intimate acts you were very uncomfortable with,” he said. “Clearly someone who would make the choices you did is a broken person.…When you boil it all down, it comes to this, you didn’t have to kill him.”

In 2019, however, New York enacted the Domestic Violence Survivors Justice Act (DVSJA), which expanded the situations in which judges can consider domestic violence survivors’ abuse when determining appropriate sentences for those who commit offenses. Judge McLoughlin found that the DVSJA did not apply to Nikki, concluding that Nikki should have left if she was indeed being abused. An appellate court disagreed, concluding that

Judge McLoughlin's opinion was based on an arcane belief/suggestion that the defendant could have avoided the murder by withdrawing from her apartment; and

The evidence...included a detailed history of repeated sexual, physical, and psychological abuse by Grover against the defendant, expert testimony regarding the impact of that abuse on the defendant, and the defendant's testimony regarding the events prior to the subject shooting, established that the abuse was a significant contributing factor to the defendant's criminal behavior.

The court thus reduced her sentence from 19 years to 7.5 years. That's not good enough. I am 100% convinced that Nikki is innocent and was abused by both Chris and the criminal justice system. You can learn more about her case at the website We Stand With Nikki and the top notch podcast, "Believe Her."

And you can help. Nikki has applied for clemency with New York Governor Kathy Hochul. Here is a Google Docs form you can fill out in a few minutes asking Governor Hochul to grant Nikki clemency.

I have included two photos after the jump documenting some of the abuse Nikki suffered.


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November 24, 2021 | Permalink | Comments (0)

Tuesday, November 16, 2021

Court of Appeals of Mississippi Interprets Disclosure Portion of Mississippi Learned Treatise Exception

Mississippi Rule of Evidence 803(18) provides an exception to the rule against hearsay for

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit. A treatise used in direct examination must be disclosed to an opposing party without charge in discovery.

So, does it matter that the Rule uses the word "disclosed" instead of "produced" in the last sentence? According to the recent opinion of the Court of Appeals of Mississippi in Fonville v. Zeid, 2021 WL 4165947 (Miss.App. 2021), the answer is "yes."

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November 16, 2021 | Permalink | Comments (1)

Monday, November 15, 2021

Superior Court of Pennsylvania Distinguished Between Inadmissible Character Evidence & Admissible Habit Evidence

Similar to its federal counterpart, Pennsylvania 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 there was an eyewitness.

There's a fuzzy line between inadmissible propensity character evidence and admissible character evidence, a line explored by the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Byrd, 2021 WL 3088754 (Pa.Super. 2021).

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November 15, 2021 | Permalink | Comments (1)

Saturday, November 13, 2021

Court of Appeals of Mississippi Finds Victim's Question "Why Did You Shoot Me?" Admissible as a Dying Declaration

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In 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.

So, would a victim's question "Why did you shoot me?" be admissible under this dying declaration exception if the defendant claims self-defense? This was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Dille v. State, 2021 WL 3732274 (Miss.App. 2021).

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November 13, 2021 | Permalink | Comments (1)

Friday, November 12, 2021

Sixth Circuit Finds Trial Court Improperly Allowed Bank Manager to ID Bank Robber

Federal Rule of Evidence 701 provides 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.

Opinion testimony by an eyewitness identifying the perpetrator would typically be admissible under Rule 701. But that was not the case in United States v. Howell, 2021 WL 5177103 (6th Cir. 2021).

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November 12, 2021 | Permalink | Comments (0)

Sunday, October 31, 2021

Eastern District of California Denies Request to Appoint Court Expert in Eighth Amendment Case

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

Rule 706(a) thus allows a court to appoint an expert witness. But Rule 706(a) rarely requires a court to appoint an expert witness. An example can be found in the recent opinion of the United States District Court for the Eastern District of California in Wilkins v. Barber, 2021 WL 4992664 (E.D. Cal. 2021).

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October 31, 2021 | Permalink | Comments (0)

Friday, October 22, 2021

Court of Appeals of North Carolina Finds Rule 701 Violation But Upholds Convictions

Similar to its federal counterpart, North Carolina Rule of Evidence 701 provides that

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

So, under Rule 701, can a detective testify that he found the defendant's alleged accomplice to be credible when she implicated herself and the defendant in a crime? That was the question addressed by the Court of Appeals of North Carolina in its recent opinion in State v. Best, 2021 WL 4859815 (N.C.App. 2021).

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October 22, 2021 | Permalink | Comments (0)

Monday, October 18, 2021

Southern District of Ohio Finds Work Product Privilege Waived for Documents Used to Refresh Witness's Recollection

Federal Rule of Evidence 612 provides that

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

So, if a witness uses documents for a testimonial purpose, can the party who refreshed her recollection through those documents assert the work product privilege? That was the question addressed by the United States District Court for the Southern District of Ohio in its recent opinion in J&R Passmore, LLC, et al. v. Rice Drilling D, LLC, et al., 2021 WL 4810150 (S.D. Ohio 2021).

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October 18, 2021 | Permalink | Comments (1)

Friday, October 1, 2021

Western District of Wisconsin Finds Insurance Evidence Admissible Despite Rule 411

Federal Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

As the Rule makes clear, evidence of liability insurance case be admissible for purposes "such as proving a witness’s bias or prejudice or proving agency, ownership, or control." In other words, while purposes such as "proving agency, ownership, or control" are illustrative, not exhaustive. For an example of another permissible purpose, consider the recent opinion of the United States District Court for the Western District of Wisconsin in Burress and Burress v. Mr. G & G Trucking, LLC, et al., 2021 WL 4472799 (W.D. Wis. 2021).

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October 1, 2021 | Permalink | Comments (0)

Thursday, September 30, 2021

Tenth Circuit Finds That Judge's Statement to Jury That Contradicted Defendant's Testimony Violated Rule 605

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 605 covers not only literal testimony but also the functional equivalent of testimony. One such example can be found in the recent opinion of the Tenth Circuit in United States v. Andasola, 2021 WL 4166671 (10th Cir. 2021).

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September 30, 2021 | Permalink | Comments (0)

Saturday, September 18, 2021

Supreme Court of Wyoming Finds Statements on Bodycam Footage Were Admissible as Excited Utterances

Similar to its federal counterpart, Wyoming 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 caused by the event or condition.

As the recent opinion of the Supreme Court of Wyoming in Jackson v. State, 492 P.3d 911 (Wyo. 2021), makes clear, the court applies a five factor test for determining whether a statement qualified as an "excited utterance" under this exception.

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September 18, 2021 | Permalink | Comments (1)

Tuesday, September 14, 2021

The Proposed Amendment to Federal Rule of Evidence 702

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the third in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 702, which currently 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.

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September 14, 2021 | Permalink | Comments (0)

Wednesday, September 8, 2021

The Proposed Amendment to Federal Rule of Evidence 615

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the second in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 615, which currently 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.

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September 8, 2021 | Permalink | Comments (3)

Wednesday, September 1, 2021

Proposed Amendment Would Expand Rule of Completeness

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. In the next three posts, I will cover these proposed amendments. The first is a proposed amendment to Federal Rule of Evidence 106 (the rule of completeness), which currently states 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.

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September 1, 2021 | Permalink | Comments (2)

Saturday, August 28, 2021

Supreme Court of Arizona Eliminates Peremptory Challenges

The Supreme Court of Arizona has taken the landmark step of eliminating peremptory challenges from jury selection in both civil and criminal cases. So, what does this mean, and why did the court do it?

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August 28, 2021 | Permalink | Comments (1)

Friday, August 27, 2021

My New Article: "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause"

I have posted the working draft of my new article, "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause" (forthcoming, George Washington Law Review), on SSRN. Here is the abstract:

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. While the number of CIUs has increased, most jurisdictions still do not have such a unit, and several CIUs exist in states that, like Missouri, lack enabling legislation.

Conversely, it has perhaps never been easier for prosecutors to commence criminal proceedings that culminate in wrongful convictions. The Fifth Amendment Grand Jury Clause provides that no person shall be subjected to a trial for felony charges unless there is a grand jury presentment or indictment. The grand jury’s historical mission was “to clear the innocent, no less than to bring to trial those who may be guilty,” and yet grand juries now return indictments in approximately 99% of cases. Meanwhile, the use of presentments waned in the wake of the Civil War and was effectively declared dead in the criminal charging context in 1946. Historically, however, grand jury presentments were used not only to accuse wrongdoers of criminal behavior but also to call attention to issues of public concern. With the demise of presentments in the criminal charging context, this other historical function of the grand jury has largely fallen into disuse.

This Article advances the original thesis that there is a dormant Grand Jury Clause that prosecutors can use to revive the common law power of presentment and fulfill their responsibility to rectify wrongful convictions. Under this dormant Grand Jury Clause, a prosecutor who believes her office previously secured a wrongful conviction can take the case to a grand jury. If the grand jury agrees with the prosecutor, it can submit a wrongful conviction presentment to a judge, who can vacate the conviction under the inherent power of the court. By doing so, prosecutors can restore some of the glory of the common law grand jury and create a powerful new tool to right wrongs.

Any feedback is welcome and appreciated.


August 27, 2021 | Permalink | Comments (2)

Wednesday, August 25, 2021

Western District of Louisiana Notes That Lay Witnesses May Be Able to Testify About Force-of-Impact in Car Crash Cases

Federal Rule of Evidence 701 provides 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.

Rule 701 was amended in 2000, and the Advisory Committee's Note to that 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.

So, could a lay witness testify about force-of-impact in a car crash case?

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August 25, 2021 | Permalink | Comments (0)

Sunday, August 22, 2021

Sixth Circuit Finds No Brady Violation in Murder Appeal Despite State's Failure to Disclose That Its Key Eyewitness Said Defendant Was NOT the Shooter on Night of Shooting

Pursuant to Brady v. Maryland, the prosecution has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defense. So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect? Those were the questions addressed by the Sixth Circuit in its opinion Friday in McNeill v. Bagley, 2021 WL 3701386 (6th Cir. 20201).

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August 22, 2021 | Permalink | Comments (0)

Wednesday, August 18, 2021

Eighth Circuit Grants Qualified Immunity to Officer Who Handcuffed, Frisked & Pointed His Gun at Innocent 12 & 14 Year-Old Boys Walking From Grandparents' House

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

[T]he Springdale Police received a tip that a woman with outstanding arrest warrants was staying in the house of a suspected gang member. During a stakeout to find that woman, an officer saw multiple people leave in a Chevy Cobalt, including two men—one smaller than the other. Another officer tried to stop the Cobalt. But the driver fled and eventually crashed the car. Four people ran from the scene: two went south and two north. Dispatch instructed officers to set up a perimeter around the site to stop the fleeing suspects.
Officer Marzolf responded to the dispatch call. As he approached an intersection near the crash site with his blue lights flashing, dispatch told him that when the police last encountered one of the four fleeing suspects he had a gun.
Soon after, Officer Marzolf saw two people (later identified as W.Y. and S.Y.) walking slowly toward him within the perimeter wearing hoodies and light-colored pants. One was taller than the other. Officer Marzolf turned on his headlights and angled his car toward the boys. He stopped and said, “Hey, what are you guys doing?” W.Y., the taller and older boy, responded by speaking and pointing past Officer Marzolf. The dash cam video does not convey his response. Officer Marzolf then said, “Hey, stop, stop, turn away, turn away from me.” The boys did so with their arms at their sides. Then, Officer Marzolf entered the video frame with his gun pointed at the boys.
Officer Marzolf then asked, “What are your names?” He next pulled out his flashlight and pointed it at the boys’ backs. One of the boys said his name multiple times. Officer Marzolf confirmed the name and kept his gun trained on the boys.
Then, the boys’ mother, Casondra Pollreis, walked up and said, “Officer, officer, may I have a word with you?” While she said more, her exact words are unclear from the recording. Officer Marzolf then spoke into his radio: “45 Springdale, I've got [W.Y.] in front of me, I've got two juvenile individuals, dark hoodies and pants.” Sergeant Kirmer responded, “OK, detain both of those.” After confirming with Officer Marzolf that one was taller and the other was short and skinny, Sergeant Kirmer repeated, “Hold on to them please.”
Officer Marzolf walked up to the boys with his gun pointed at them and told them to get on the ground. They complied. He then said, “Put your hands out.” They complied. Pollreis walked toward Officer Marzolf and asked what happened. Officer Marzolf told her to step back multiple times. She said, “They're my boys.” He then stepped toward her with his gun still pointed at the boys and said, “I am serious get back.” He drew his taser, pointed it at her, and ordered her to go back to her house. She asked, “Are you serious? They're twelve and fourteen years old.” Officer Marzolf responded, “And I'm looking for two kids about this age right now, so get back to your house.” An upset Pollreis then exclaimed, “Oh, my god. You're OK guys, I promise.”
Officer Marzolf continued to stand over the boys for nearly two minutes with his gun pointed at them. During those two minutes, he asked the boys for identification and requested backup.
The boys’ stepfather then approached and said, “Officer...can I have a word with you?” Officer Marzolf declined. The stepfather stated, “Those are my kids,” and Officer Marzolf responded, “OK.” The stepfather explained, “We just left [Pollreis's] parents’ right there. When you guys passed with your lights on, they were walking behind my car. I also have witnesses if you want me to call them.” Officer Marzolf responded, “That's fine, I just need to find out who these kids are right now.” The boys’ stepfather stated their names.
Another officer, Adrian Ruiz, arrived at the scene. At the same time, W.Y. reached back to adjust his shirt or belt and Officer Marzolf yelled, “Hey, keep your hands out!” Both officers walked toward the boys with their guns pointed at them. While Officer Ruiz continued to point his gun at the boys, Officer Marzolf holstered his weapon and handcuffed W.Y. Officer Ruiz handcuffed S.Y. Officer Marzolf then told dispatch, “I've got black hoodies and khaki pants and jeans.” Officer Ruiz said, “Black hoodie, and a white backpack....”
Sergeant Franklin, the officer in charge, arrived next. He immediately asked the boys if they ran from the police. The boys said no and explained: “We were at our grandparents...and we just started walking home.” When Sergeant Franklin asked their names, they told him. Officer Marzolf then frisked W.Y. and searched his pant pockets for weapons. Sergeant Franklin asked Officer Marzolf if they were running. Officer Marzolf replied, “No, they were just walking, sir.” Sergeant Franklin responded, “OK. So these guys probably aren't them?” And Officer Marzolf said, “Probably not. I mean we had both parents come out.”
The boys’ grandparents then walked up and identified the boys to the officers. At that time, Officer Ruiz searched S.Y.’s backpack. After speaking with the grandparents, Sergeant Franklin ordered the officers to remove the handcuffs and let the boys go.

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August 18, 2021 | Permalink | Comments (1)

Sunday, August 15, 2021

Sixth Circuit Finds Prosecutor Had No Duty to Learn About Department of Corrections Mental Health Records For State's Witness

Pursuant to Brady v. Maryland, the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defense. Moreover, Kyles v. Whitley stands for the proposition that an"individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." So, does that duty to learn include a duty to learn about mental health records kept by a department of corrections concerning a key witness for the prosecution? That was the question addressed by the Sixth Circuit in its recent opinion in Hall v. Mays, 2021 WL 3355480 (6th Cir. 2021).

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August 15, 2021 | Permalink | Comments (0)