Friday, November 28, 2014
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.
Use of Adnan's Religion at Trial
Here's a portion of the second episode:
Remember the setup for this crime that the State laid out was that Adnan was betraying everything he held dear for this girl. As a good Muslim he was not supposed to be dating and so he was sacrificing his religion and lying to his family all just so he could be with her and it twisted him up inside. And Hae’s diary seems to be where they found some evidence for that. In fact they had a friend of Hae’s, Debbie Warren, read excerpts from it on the witness stand. “I like him, no I love him.” She read at trial, dated May 15. “It just all the things that stand in the middle. His religion and Muslim customs are the main things. It irks me to know that I’m against his religion. He called me a devil a few times. I know he was only joking, but it’s somewhat true.” And then there’s this, which wasn’t read at trial but is from July when Adnan went to an Islamic conference in Texas with his dad. This is the most distressed Hae gets on the topic. When I read it, I thought “whoa. This does not look so good for Adnan.” “I keep crying over the phone because I miss him so much,” she writes.
Was this type of evidence properly admitted at trial? There is one rule of evidence that explicitly deals with religion: Maryland Rule of Evidence 5-610, which states that
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced, except that such evidence may be admissible to show interest or bias.
So, for instance, the prosecution could not argue to a jury that a witness was lacking in credibility as a witness because he was an atheist. Moreover, an attorney couldn't use the fact that a witness was a "good Christian man" to prove that he was a credible witness.
Technically, Rule 5-610 only deals with witness credibility, but sometimes courts blur the lines. For instance, in United States v. Darui, 545 F.Supp.2d 108 (D.D.C. 2008), the court precluded the defendant from using evidence that a witness for the prosecution was a member of a radical sect of Islam that believed in polygamy. In reaching its conclusion, the court noted that "Federal Rule of Evidence 610 clearly mandates that '[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible' to show 'the witness' credibility is impaired or enhanced.'"
I don't see how a belief in polygamy damages a witness's credibility, but it is certainly character evidence that could bias the jury against him, which is why the court easily could have excluded evidence of this belief under Federal Rule of Evidence 404, the counterpart to Maryland Rule of Evidence 5-404. Indeed, I blogged about a case in which a court used this reasoning to preclude an attorney from trying to use an Imam's religion to prove that he was an extremist/hatemongerer and not a moderate figure. Rule 404 precludes such character assassinations, but Rule 404(b) does allow for character evidence to be introduced for permissible purposes, such as proving motive or knowledge/ability.
So, how did the prosecution use evidence of Adnan's religion at trial? As far as I can tell from the podcast, the prosecution did not impugn Adnan's character/credibility. And this seems to be the case because you could substitute any religion for Adnan's Muslim faith, and the prosecution's argument would be the same. Imagine if Adnan were Catholic and Hae were Jewish. The prosecution could make the same argument that Adnan had to lie to his parents and sacrifice his religion to be with Hae, increasing his motive to kill her after she broke up with him (although, as the podcast notes, it is not clear how broken up Adnan was about the breakup). Unless the prosecution pointed to something specific about Adnan's Muslim faith to attack his character, it was probably fine under Rules 610 and 404.
Indeed, some courts have specifically noted that evidence of a witness's religion is specifically admissible to prove motive under Rule 610. See, e.g., Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006) ("Ohio law permits questions concerning religion to show bias and motive...."). Thus, my conclusion is that the prosecution probably made fair use of Adnan's religion at trial.
Adnan's Training as an EMT
The second episode notes that "[t]he State would argue that because he was an EMT Adnan would have known how to strangle someone, and would have had the training to revive them if he wished." This takes us back to Rule 404(b). As noted, Rule 404 precludes the admission of generalized propensity character evidence. Under this rule, the prosecution couldn't use a defendant's prior battery conviction to prove, "Once a batterer, always a batterer." But assume that a defendant charged with shooting someone from long range used to be an Army Sniper. The prosecution could use evidence of the defendant's training as a sniper to prove that he possessed the ability to shoot someone from long range.
Before admitting this evidence, however, the prosecution would need to prove that the evidence is relevant (probative of some material issue at trial) and that, under Rule 403, its probative value is not substantially outweighed by the danger of unfair prejudice. Obviously, this sniper evidence would be relevant to prove the defendant could have pulled off the long shot, and its admissibility would likely hinge on the uniqueness of the defendant's ability. If the defendant shot the victim from 100 feet, the evidence would have significant probative value because most people could not pull of this shot. But if the defendant shot the victim from 10 feet away, the evidence would have much less probative value, and the evidence would likely be inadmissible because of the worry that the jury would misuse the evidence.
As an example, consider the opinion of the United States Court of Appeals of the District of Columbia in United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999). In Watson, the defendant was arrested while possessing the key to a Subaru that contained cocaine. Even though he didn't own the Subaru, the defendant was charged with possession with intent to distribute. At trial, the prosecution introduced the defendant's seven year old conviction for possession with intent to distribute cocaine. The appellate court eventually reversed the defendant's conviction on other grounds and had this to say about the admissibility of the prior conviction on retrial:
[T]he admission of Watson's 1988 drug trafficking conviction under Rule 403 undoubtedly presents a close question. As Watson points out, in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the Supreme Court emphasized the appropriateness of the contextual approach in considering the probative value of prejudicial evidence under Rule 403....Even assuming...Watson's prior drug involvement was of a similar type or conducted in a similar place, its relevance to intent and knowledge is limited to establishing that Watson knows how to sell drugs. The prior conviction is inadmissible to prove the contested issue, namely, possession. Yet the prejudicial effect of the evidence is strong because it invites the jury to infer that Watson has a propensity for drug offenses and therefore the drugs and paraphernalia found in the Subaru must be his....At a new trial, the district court can consider anew its Rule 403 balancing....
I think this is a fair analysis. Evidence of a prior possession with intent to distribute conviction isn't as probative of knowledge/ability to sell drugs as is prior training as a sniper in a long range shooting trial. That said, I think there would be quite a bit of a learning curve if I decided today that I wanted to become a drug dealer.
Now, let's look back at Adnan's trial. First, the prosecution argued that Adnan's training as an EMT meant that he could revive someone who had been choked if he wanted. I assume this is true, but I don't see the relevance of this argument. The State's theory of the case was that Adnan fatally choked Hae, not that he failed to revive her after someone else choked her. Was the State trying to claim that Adnan could have revived Hae after he choked her? If so, I don't see the point because of the State's second argument.
That second argument was that Adnan's training as an EMT meant that he knew how to choke someone, or, more specifically, that he knew how to fatally choke someone. But if Adnan knew how to fatally choke someone, there wouldn't have been any chance of revival.
Now, this is course begs the question of whether an EMT knows how to fatally choke someone with much more precision that the average person. At this point, I'll say that I have no idea whether this is true or not. Maybe someone who is an EMT can weigh in on the issue (and I certianly hope that the prosecution at Adnan's trial had some type of expert testimony before commenting on Adnan's training as an EMT). But I'll say that my guess is that an EMT receives no training on the proper technique for choking. Moreover, to the extent that there is such training so that an EMT can learn how to revive a choking patient, I'm sure that it's not much more than what I could learn from a quick internet search.
And of course, the comment on Adnan's EMT training presupposes that the medical examiner concluded that the choking of Hae was done with special precision. I'm reminded of the initial speculation that Jack the Ripper must have had special medical training based on the way that he mutilated his victims as well as the more modern response that this conjecture was likely inaccurate. My own conjecture here is that evidence of Adnan's EMT training was likely inadmissible to prove his special knowledge of how to choke someone.
Update 12/1/14: A reader on the Serial Subreddit notes the following:
Flight/transport nurse with Paramedic training.
There are different levels of EMT. As a high school student, Adnan would have been an EMT Basic. Becoming an EMT-paramedic takes at least a year of pretty intense school and full time training. (there is also an intermediate level EMT in some states, but that level doesn't change the argument)
A basic EMT can't do very much practice wise and they aren't trained in anything that you could argue would give them advanced knowledge in anatomy and physiology . An EMT B isn't suddenly going to become Dexter because he's learned how to board and collar somebody or splint a fracture.