EvidenceProf Blog

The Serial Podcast, Episode 2: Did the Prosecution Properly Admit Evidence of Adnan's Religion & EMT Training?

I've done five posts (here, here, here, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post deals with the second episode of the Serial Podcast: "The Breakup." A good deal of the episode deals with portions of Hae's diary, and I dealt with the (in)admissibility of that diary in this post. There were, however, two other portions of this second episode that dealt with interesting evidentiary issues: the prosecution's use of Adnan's religion and his training as an EMT at trial.

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The Allen Charge or: Why You Don't Want Your Trial to End Just Before the Holidays

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday?

This was from a post I did on Christmas day two years ago, and it dealt with a case in which previously deadlocked jurors reached a verdict just after an Allen charge and just before that holiday. Today's post deals with a similar verdict just after three Allen charges and just before Thanksgiving...and a nasty storm.

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Beast of Burden: Probable Cause vs. Preponderance of the Evidence in Ferguson

I was just watching CNN, and Chris Cuomo was talking to Paul Callan about a possible civil suit against Police Officer Darren Wilson. This prompted a discussion of the different burdens of proof at a grand jury hearing (probable cause) and a civil trial (preponderance of the evidence). Callan claimed that the burdens of proof were the same or at least virtually identical. Cuomo claimed that probable cause is a lower burden of proof than preponderance of the evidence. So, why was right?

Cuomo. Preponderance of the evidence is more likely than not, i.e., 50.1%. If Michael Brown's family sued Darren Wilson for wrongful death, they would have to prove that it was more likely than not that Wilson was liable. Meanwhile, "[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence, and has been defined as "'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion'" of the fact to be proved." People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001); see also State v. Pledger, 896 P.2d 1226 (Utah 1995) ("The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.").

Indeed, check out this excerpt from U.S. v. Agriprocessors, Inc., 2009 WL 595562 (N.D.Iowa 2009):  

The government's cross-examination of Ms. Kuehn was highly effective in that it exposed flaws in her reasoning, as well as her deep unfamiliarity with the federal grand jury process. For example, Ms. Kuehn did not even know how to define probable cause, the quantum of evidence a grand jury must possess to validly return an indictment against a target of an investigation. Ms. Kuehn erroneously equated the probable cause standard with the preponderance of the evidence standard.

-CM

The Serial Podcast, Episode 1: Did Adnan Receive the Ineffective Assistance of Counsel?

I've done four preliminary posts (here, here, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. Now, I will turn to the podcasts themselves. The first podcast is The Alibi, and it deals in large part with defense counsel's failure to investigate an alibi witness. Adnan eventually brings a claim that he received the ineffective assistance of counsel due to this failure to investigate the alibi witness. The judge denies Adnan's claim. Was this proper?

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The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?

Update: 12/4/14: For those coming to this post after listening to the 10th Episode of Serial, once you've read this post, you can check out this post for further thoughts on the issue. 

This is my fourth post on the Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. My prior posts dealt the admission of Hae's diary (diary post), a letter from Hae to Adnan (letter post), and a note Adnan allegedly wrote on the back of that letter (note post). In this post, I will address an alleged Brady violation by the prosecution in connection with its key witness.

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The Serial Podcast, Take 3: The Notes on the Back of Hae Min Lee's Letter

Earlier today, I posted my second entry about the Serial Podcast, in which Sarah Koenig investigates the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. In that post, I noted that the trial court likely erred in allowing the prosecution to admit a letter written by Hae to Adnan. As I noted, that letter stated,

....I'm really getting annoyed that this situation is going the way it is....Your life is NOT going to end. You'll move on and I'll move on. But, apparently, you don't respect my decision....I NEVER wanted to end this like this, so hostile and cold....Hate me if you will. But you should remember that I could never hate you. 

As I also noted, Adnan and his classmate Aisha Pittman also allegedly exchanged notes during class on the back of that letter. And while Adnan claimed on appeal that the trial court erred by admitting Hae's letter, he apparently didn't argue that his own note(s) on the back of the note should have been deemed inadmissible. According to the government's brief,

Pittman testified that the handwriting in pen on the back was Syed's, and that the handwriting in pencil was hers. (1/28/00,243). Written in pen on the back was "I am going to kill." (1/28/00,248). Pittman testified that phrase was not on the back of the letter when she was writing notes back and forth to Syed. (1/28/00, 253). On appeal, Syed does not challenge the admissibility of the back of the letter. Syed's complaint is as to the writings by the victim, Hae Lee.

I can see why Adnan wouldn't object to admission on appeal. Assuming that the government was able to authenticate  the note under Maryland Rule of Evidence 5-901(b) (prove that Adnan wrote it), it would be admissible as a statement of a party-opponent under Maryland Rule of Evidence 5-803(a)(1).

Update 12/1/14: Here are the notes on the back of Hae's letter:

-CM

EvidenceProf Makes the ABA Journal's Blawg 100

Every year, the ABA Journal comes out with its Blawg 100, its list of the top 100 law blogs. I'm proud to say that EvidenceProf made the cut for the first time this year. Here's our entry:

NEW: Every weekday, law professors—primarily the University of South Carolina's Colin Miller—post on the very latest rulings regarding the admissibility of evidence in criminal cases and what sorts of lines of questioning should be permitted at criminal trials. He also notes differences between the federal rules of evidence and the rules of various states. Occasionally, he will comment on whether he thinks courts have reached the right outcomes in these evidence cases or note fishy behavior by prosecutors.

Thanks to the ABA Journal and to all our readers.

-CM

Credibility Proxies: Final Thoughts

In this series of posts I’ve outlined a number of credibility proxies currently in use in the justice system.  In order to assist them in the search for truth, fact-finders may learn of witnesses’ prior acts from shoplifting to prostitution to the possession of illegal drugs.  At the same time, they are often not told that a witness has violence in his or her past.  

Courts often offer scant explanation for why certain crimes are or are not related to credibility.  They suggest that credibility is related to deliberate violation of basic standards, to scheming, to taking for oneself at the expense of others.  They contrast these notions with acting on provocation or out of passion, which they posit has little to do with a person’s credibility. 

The series of posts has tried to find coherence in the doctrine, but what stands out is that these explanations do not add up to much.  The courts have maintained a status quo in which many crimes are admissible on the question of credibility but in which precedent has far more power in predicting which crimes will be admissible than does principle. 

Accepting, for the moment, that proxies are useful in assisting the fact-finder to make accurate credibility determinations, it is hard to justify informing the fact-finder about prostitution but not about assault.  Similarly, having serious traffic violations in ones’ past seems like it might be just as relevant to truthfulness as jumping a subway turnstile.  Also perplexing is the idea that a jury will glean something informative about the defendant’s credibility from being told that he or she committed a crime in the x degree without any of the context, such as information about the circumstances or even the type of crime.  There is no data that I can find to explain or justify this type of line drawing.  Nor does intuition about what seems more relevant to credibility get me very far in an effort to understand it.

 What might best explain the contours of credibility proxy doctrine is history.  As I have explored in other work on moral turpitude as a legal standard, the shape of that standard had to do with beliefs about moral rectitude that were widely held in the early nineteenth century. The honor code at the time when our evidentiary rules were first becoming entrenched condemned deceptive business practices and dishonesty in men and lack of chastity in women. Violent behavior, in contrast, was treated more forgivingly. Credibility proxy doctrine evolved in tandem with the moral turpitude standard (which itself is still in place in the evidentiary codes of California and Texas).  Both modern moral turpitude jurisprudence and modern credibility proxies to a large extent mimic a nineteenth-century system of values. 

Using proxies that don’t correlate with data or common sense distinctions seems to raise a red flag about what we are doing with credibility proxies.  As others have pointed out, admitting prior felonies has a disproportionate impact on minority communities while not necessarily offering much useful information, given the frequency with which defendants plead guilty to charges arrived at through negotiation rather than because they best align with the underlying conduct (see an excellent recent article by Anna Roberts for more on this).  While women are far more likely to have prostitution convictions, men are more likely to have been convicted of violent crimes (or any crime, for that matter).  If we aren’t bringing ourselves closer to the truth with these proxies, then are we instead amplifying and entrenching certain social hierarchies? 

One solution to this quagmire is to eliminate the line-drawing altogether and use something akin to Minnesota’s “whole person” doctrine.  If anything is relevant to credibility because the fact-finder needs to see the whole person, then the only question is one of balance.  Would the information would be more probative than prejudicial?  Where do we want the scales to tip?  Of course, placing total discression in the hands of the trial judge has perils of its own, not to mention opening the door to a limitless store of prior acts that it could - and no doubt would - be argued are relevant to impeachment.

More radical, but possibly more effective if we believe that lies are context-specific (and therefore prior lies have little predictive power in new situations), is the idea of eliminating credibility proxies altogether.  We could continue to use evidence of bias and prior inconsistent statements to impeach but preclude the possibility of introducing other credibility-related evidence. This would change a number of incentives, removing a major impediment to defendants testifying in their own defense while also creating a more efficient trial practice by eliminating a whole category of evidence and a basis for numerous appeals.

-JSK

The Serial Podcast, Take 2: The Erroneous Admission of Hae Min Lee's Letter About Adnan Syed's State of Mind

On Friday, I posted a first entry about the Serial Podcast, in which Sarah Koenig investigates the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. In that post, I noted how Adnan's trial counsel seriously erred by failing to object in whole or in part to the admission of Hae's diary, which the prosecution introduced under Maryland Rule of Evidence 5-803(b)(3) to prove the nature of their relationship and how Hae felt in its aftermath. There were three ways that defense counsel could have objected to this evidence: (1) Hae's state of mind was irrelevant to any material issue at trial, cf., Jenks v. Naples Community Hospital, Inc., 829 F.Supp.2d 1235, 1248 (M.D.Flas. 2011); (2) the diary was merely cumulative of other evidence already in the record, see, e.g., People v. Fisher, 476 N.W.2d 889 (Mich. 1991) (Boyle and Riley, J., dissenting); and (3) the prosecution was using the diary to prove past facts, not present feeling, see, e.g., Crawford v. State, 770 N.E.2d 775, 780-81 (Ind. 2002). For a good example of a similar case in which diary entries of an ex-wife were deemed inadmissible in her husband's prosecution for her murder, you can take a look at the Supreme Court of Delaware's decision in Capano v. State, 781 A.2d 556 (Del. 2001).

In today's post, I'm going to address another evidentiary issue raised by Adnan in his direct appeal of his conviction to the Maryland Special Court of Appeals. According to Adnan's brief, 

At trial, the State introduced a letter from Hae to Appellant, on the back of which Appellant and one of his classmates, Aisha Pittman, allegedly exchanged notes during a high  school class....The letter constituted inadmissible hearsay  which did not fall under any exception to the hearsay rule. In it, Hae told Appellant of her feelings about the break up, and about her perceptions and opinions as to Appellant's feelings  about the break up.  

....I'm really getting annoyed that this situation is going the way it is....Your life is NOT going to end. You'll move on and I'll move on. But, apparently, you don't respect my decision....I NEVER wanted to end this like this, so hostile and cold....Hate me if you will. But you should remember that I could never hate you.  

So, was this letter properly admitted?

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If You Only Read One Law Review Article About Judicial Notice this Holiday Season...

Trial by Google: Judicial Notice in the Information Age is now in print.  The piece provides an analytical framework for thinking about judicial notice in the Internet era.  Get your *free* copy here courtesy of the Northwestern University Law Review.

The Serial Podcast & the Admission of Hae Min Lee's 62 Page Diary at Adnan Syed's Murder Trial

Today, my colleague Claire Raj told me about the Serial Podcast. According to iTunes, "Serial is a new podcast from the creators of This American Life, hosted by Sarah Koenig. Serial unfolds one story - a true story - over the course of a whole season." The first season is dealing with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. I haven't yet listened to the podcast, but I'm looking forward to it. I imagine it will be in the same vein as "The Staircase," which aired the Sundance Channel and also dealt with a murder prosecution. At this point, before listening to the podcast, I thought that I would do a few posts about some of the evidentiary issues at Adnan's murder trial.

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Who's Scared of Fitbit?

A couple people sent me links to this story in the Atlantic.  The story reports that a plaintiff in Canada is planning to introduce evidence from Fitbit (a wearable activity tracking device) “to show that her activity levels [after an injury] are still lower than the baseline for someone of her age and profession to show that she deserves compensation.”

The story places this in a narrative of the increasing pressure technology is placing on privacy.  But as the story candidly notes, it doesn’t really fit that narrative since the plaintiff is offering the evidence of her own Fitbit data.  And even if it were the defendant offering the Fitbit data to show that a plaintiff had not been injured, I am not sure it makes sense to assume that such uses of technology are ominous or even particularly unsettling.

First some legal pieces.

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Credibility Proxies: Drugs

One remaining category of crime that has a long history as a credibility proxy is drug offenses.  These offenses, like speeding, fall at the boundary between crimes of impulse (violent crimes) and crimes involving schemes that contravene social mores (like theft and prostitution).  Drug offenses have been labeled “victimless crimes” in the sense that there is no clear victim as there is in a violent attack or robbery.  While that label is controversial and often inaccurate, it offers an insight for thinking about the use of prior drug convictions as a credibility proxy. In many drug cases there is no element of taking from another for one’s personal advantage, which was identified by the Colorado Supreme Court in Segovia as a major reason why the crime of shoplifting was relevant to credibility.

Despite having no obvious element of misrepresentation or false statement, no clear victim whose property has been misappropriated through scheming, and decreasing social opprobrium, particularly when the crime involves possession of a small amount of a banned substance (see the NYC police dept’s recent decision not to make arrests of people found with small amounts of marijuana), drug offenses are per se admissible as credibility proxies in certain jurisdictions. 

Courts in the District of Columbia, for example, have long insisted that prior convictions for “possession of narcotics” involve dishonesty and false statement within the meaning of the D.C. Code of Evidence. 

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Online Confrontation Clause Symposium

Just came across this Symposium in the Michigan Law Review Online:  “Crawford v. Washington: A Ten Year Retrospective”

Click on the link above to choose among contributions from:

                Richard D. Friedman

                Jeffrey L. Fisher

                George Fisher

                Deborah Tuerkheimer

I haven't read it yet, but am looking forward to doing so...

Credibility Proxies: Speeding

In light of the taxonomy of credibility proxies outlined in the previous posts in this series, one might predict that speeding and other traffic violations would not be admissible as credibility proxies.  Many, many people speed, suggesting that it does not violate social norms to the same degree that theft and prostitution do.  Moreover, like violence, traffic violations don’t have a particularly clear connection to lying other than through the general idea that people who violate laws are more likely to lie.  

The case law bears out this intuition.  As one Ohio appellate court wrote in 2012, “A ‘rule of thumb’ thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category.” State v. Hubbs, 2012 WL 5830616. 

Another appellate court, this one in Michigan, allowed a rape conviction to stand even though the trial court had refused to hear impeachment evidence relating to the victim’s criminal record before even learning what type of prior conviction was involved.  Invoking some of the same doctrinal vagaries in this area that I have attempted to explore in this series of posts, the trial court had explained, “it’s just a silly rule that you can impeach a person who's been hold up [sic] for shoplifting but you can't impeach them if they raped or murdered somebody.”  On appeal, the court found the lower court’s error in not even considering the type of prior conviction harmless in part because the prior conviction had been for unlawful use of a motor vehicle. People v. Brooks, No. 287948, 2010 WL 3238922 (Mich. Ct. App. Aug. 17, 2010).  It seems a safe assumption that the appellate court felt the conviction would have been excluded anyway.

 What is interesting about this insistence that motor vehicle violations do not relate to credibility and are thus not appropriate credibility proxies is that there is evidence to the contrary.

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No More Gay Panic in California: California Becomes 1st State to Abolish Gay Panic Defense

I'm a bit late to the party on this one, but, apparently, California has become the first state to legislatively ban the "gay panic" or "trans panic" defense. A defendant is guilty of murder when he kills another person with malice aforethought, but murder can be reduced to voluntary manslaughter if there was (1) sufficient legal provocation; and (2) lack of time to cool off (heat of passion). Some defendants, such as Brandon McInerny, have been able to claim that learning about the gender or sexual orientation of their victim constitutes sufficient legal provocation.

Last month, however, the California legislature passed Assembly Bill 2501, which provides in relevant part that

that for purposes of determining sudden quarrel or heat of passion, the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.

This reminds me a good deal of California abolishing the diminished capacity defense in the wake of the assassination of Harvey Milk. It will be interesting to see whether other states follow suit.

-CM

No Fear Cavalier: Jesse Matthew & the Insanity Defense in Virginia

If you've been following the news recently, it's been hard to avoid storied about Jesse Matthew, who allegedly (1) kidnapped and killed UVA student Hannah Graham,  (2)possibly did the same to Virginia Tech student Morgan Harrington, and (3) committed abduction, sexual assault, and attempted murder in 2005. Matthew has been indicted in connection with his alleged crimes in 2005, and, according to an article on newsplex.com,

Jim Camblos—Jesse Matthew's attorney—has asked a judge for a mental evaluation of Matthew. According to longtime forensic psychologist Jeffery Fracher, the probability of an insanity plea actually holding in court is slim, since Virginia has strict guidelines for labeling a defendant as legally insane.

So, what are the exact rules regarding the insanity defense in Virginia?

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Life Sentence: Supreme Court of South Carolina Finds Juvenile LWOP Sentences Violated Eighth Amendment

This January, I had the chance to moot John Blume's oral argument to the Supreme Court of South Carolina in Aiken v. Byars. Aiken was a class action brought be 28 juveniles sentenced to life imprisonment without the possibility of parole before the opinion of the United States Supreme Court in Miller v. Alabama. In Miller, of course, the Supreme Court held that mandatory life-without-parole sentences for juveniles violates the Eighth Amendment."

The questions in Aiken were thus (1) whether Miller applies retroactively; and (2) whether the sentencing hearings for the 28 juveniles complied with Miller. Today, the Supreme Court of South Carolina concluded that Miller does apply retroactively and that the sentencing hearings in for these 28 juveniles did not comply with Miller. Why? According to the court,

All were sentenced to life without parole according to existing sentencing procedures, which made no distinction between defendants whose crimes were committed as an adult and those whose crimes were committed as a juvenile. In most of the sentencing hearings but not all—defense counsel mentioned the age of the defendant at the time of the crime, and in some cases, there was a brief discussion of the defendant's life prior to commission of the crime.

The South Carolina Supremes held that this was not good enough and thus held that "any individual affected by our holding may file a motion for resentencing within one year from the filing of this opinion in the court of general sessions where he or she was originally sentenced."

-CM

Credibility Proxies: Sanitized Convictions

No discussion of credibility proxies would be complete without the sanitized conviction.  In the context of the strained efforts courts make to explain why certain crimes are related to credibility while others aren’t, it may seem odd that some jurisdictions require that impeachment be done with de-contextualized convictions.  After grappling behind closed doors with whether an underlying conviction is relevant to a witness’s truthfulness, courts in these jurisdictions may ultimately require that the jury learn only of the existence of the conviction and nothing about it’s substance.

Last month, New Jersey’s appellate division reversed a defendant’s conviction for aggravated assault and remanded for a new trial due to prosecutorial misconduct, State v. Rivera, 437 N.J.Super 434.  One of the problems, according to the court, was the fact that the prosecutor elicited the defendant’s prior conviction for resisting arrest with force in order to impeach his credibility with the jury.  New Jersey precedent holds that in case where a defendant’s prior conviction is similar to the offense charged, the prior conviction may be introduced but the jury should learn only degree of the crime and the date of the offense.  Any evidence of the specific prior crime will be excluded.  

In Rivera, the trial judge had ruled in camera that the defendant’s prior conviction for third-degree resisting arrest could be introduced to impeach his credibility, but that it must be sanitized (presumably because resisting arrest could be interpreted as a violent act and Rivera was on trial for assault – incidentally, NJ does not follow the theory that violence is not relevant to credibility).  The prosecutor, thus, was only permitted to elicit the fact that Rivera had a prior third degree conviction and the date of that conviction. 

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Mediating Confidentiality: 7th Circuit Finds Mediation Privilege Applies in Priest Sexual Abuse Case

Pursuant to Wis. Stat. § 904.085(3)(a),

Except as provided under sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding. Any communication that is not admissible in evidence or not subject to discovery or compulsory process under this paragraph is not a public record under subch. II of ch. 19.

That said, Wis. Stat. § 904.085(4)(e) provides that

In an action or proceeding distinct from the dispute whose settlement is attempted through mediation, the court may admit evidence otherwise barred by this section if, after an in camera hearing, it determines that admission is necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.

So, assume that a plaintiff and defendant settle a sexual abuse claim and that the defendant later files for bankruptcy. Is that bankruptcy action a distinct action, meaning that § 904.085(4)(e)'s exception to Wisconsin's mediation potentially applies? Let's take a look at the recent opinion of the Seventh Circuit in Doe v. Archdiocese of Milwaukee, 2014 WL 5671155 (7th Cir. 2014).

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