Friday, November 21, 2014
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.
The first of these issues is the admission of the entirety of the victim's 62 page diary at trial. That diary contained entries dealing with the victim's relationship with Adnan and its aftermath, such as
I did it. Me and Adnan are officially on recess week or time out. I don't know what's going to happen to us. Although I'm in love with him, I don't know about him. He actually suggests that what we have is like, not love. I heard the doubt in his voice. Although he couldn't pick up mine, I felt the same way. I like him. No, I love him. It's just all the things that stand in the middle, his religion and Muslim customs all are in the way. It irks me to know that I am against his religion. He called me a devil a few times. I knew he was only joking, but it's somewhat true. I hate that. It's like making him choose between me and his religion.
Unfortunately for Adnan, defense counsel did not initially object to admission of the diary at trial. Instead, she only objected when the prosecution later asked a witness to read several entries from the diary. In his appeal from conviction, Adnan tried to claim that these later objections preserved the issue for appellate review, but his brief really seems resigned to the fact that he needs to rely on the appellate court to use its discretion and find plain error.
That's too bad because it seems as if Adnan had a good argument that the diary was inadmissible in whole or in part. In their briefs, both the defense and the government note that the diary is admissible, if at all, under Maryland Rule of Evidence 5-803(b)(3). In its brief, the government notes that Rule 5-803(b)(3) provides an exception to the rule against hearsay for
[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition...(emphasis added).
The government then contends that the diary was admissible under this exception to prove "that that she and Syed were involved in an emotional relationship."
This is what I would call "creative lawyering." You see, the government didn't cite Rule 5-803(b)(3) in its entirety. In full, Maryland Rule of Evidence 5-803(b)(3) provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or the declarant's future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will (my emphasis added).
And this is where the government's argument falls apart. The porton of the Rule that it omitted makes quite clear that the exception does not allow for the admission of statements to prove past acts, such as the relationship between the victim and Adnan.
Besides, it is apparent that the government was not using the diary to prove the relationship but instead to inflame the passions of the jurors. The government basically acknowledges this in its brief, noting that
Syed asserts that the fact that the break up between Syed and Hae Lee was over religion, and that Hae had been dated another man was uncontested at trial....Whether the issue was uncontested is of no moment. The question is whether the admission of the evidence was relevant....Thus, the diary was properly admitted at trial.
This is of course manifestly untrue because a judge can still exclude evidence based upon unfair prejudice, and a proper defense objection likely would have led, at a minimum, to most of the diary being deemed inadmissible. But, as noted, no such motion was made.
On appeal, the government also contended the diary was admissible to prove the victim's state of mind after her breakup with Adnan. On the other hand, defense correctly noted that the victim's state of mind
was irrelevant to the commission of the crime. (It was only appellant's state of mind that was relevant.) Further, any probative value of the statements as to the victim's state of mind would be outweighed by the extremely prejudicial nature of the evidence. Accordingly, the trial court erred in admitting the disputed testimony.
This make complete sense. Entries in a defendant's diary (e.g., I want my ex dead) would be admissible at his murder prosecution because they would tend to show his state of mind, which is relevant to motive, intent etc. In a battery case in which the defendant claims self-defense, entries in the diary of either the defendant or the victim would be admissible to show motive/intent on the one hand and reasonable apprehension on the other. But in a case in which a defendant is on trial for murdering the victim, entries in the victim's diary regarding her state of mind have no relevance to any issue at trial and are thus inadmissible.
I don't think I've ever read a case in which diary entries were deemed non-assertive and this nonhearsay. But I think most courts would find that diary entries are nontestimonial, meaning that the Confrontation Clause is not implicated. See, e.g., State v. Kaufman, 711 S.E.2d 607 (West. Va. 2011).
Posted by: Colin Miller | Nov 21, 2014 10:17:09 AM
If the defendant's circumstances (and thus state of mind) are relevant, and the diary helps illuminate his state of mind, doesn't the diary also become relevant? Either way, I think you're right that it was not offered to prove Hae's then-existing condition.
Posted by: F Stanley | Nov 24, 2014 5:37:57 PM
This gets to my second blog post: http://lawprofessors.typepad.com/evidenceprof/2014/11/on-friday-i-posted-afirst-entryabouttheserial-podcast-in-whichsarah-koeniginvestigatesthe-1999-prosecution-of-17-year-old-s.html
The state of mind exception can only be used to prove the declarant's state of mind. So, because Hae wrote the diary, it could only be used, if at all, to prove her state of mind, not Adnan's state of mind.
Posted by: Colin Miller | Nov 24, 2014 5:42:40 PM
I am curious whether the prosecution or defense attempted to subpoena the ISP records to determine whether Adnan was in fact logged into his email at the library, as he surmised. Could it be argued that defense was ineffective if no attempts were made to access this information? Likewise, do you think the prosecution had an independent duty to seek this information under the Brady rule?
Posted by: MJ | Nov 29, 2014 12:24:39 AM
MJ, I don't know whether there was any attempt to subpoena the ISP records. Under Brady, there is no independent duty on the prosecution to seek out exculpatory information.
Posted by: Colin Miller | Nov 29, 2014 4:39:59 AM
Thank you. I was wondering, on a re-listen of episode 2, how in the heck the diary was even admissible. Sounds like it was not. I appreciate the analysis.
Posted by: Dineen Wasylik | Dec 8, 2014 1:02:36 PM
Check your 1st paragraph. Adnan turned 18 in May of 1998, many months before the murder took place. He was 18, not 17 on the day of the crime.
Posted by: Chris Swenson | Dec 19, 2014 8:00:49 AM
Reminds me of Madeline Smith case. There the victim's diary was kept out as hearsay. The counter argument is that she did not intend her diary entries to be read (non-assertive). How does Confrontation figure in?
Maybe I don't understand the facts.
Posted by: Rick underwood | Nov 21, 2014 9:36:32 AM