EvidenceProf Blog

The Advocate: Court Reverses Sexual Abuse of a Minor Convictions Based on Presence of Victim Advocate

Federal Rule of Evidence 611(a) provides that

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:  

(1) make those procedures effective for determining the truth;  

(2) avoid wasting time; and  

(3) protect witnesses from harassment or undue embarrassment.

One interesting question that has arisen under Rule 611(a) is: when can a court allow for a victim advocate to stand near a vulnerable witness while she testifies at trial? The recent opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands in Commonwealth v. Santos does a good job compiling the varying approaches that different courts have taken, but I don't like the result it reached.

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The Serial Podcast: The Possible Legal Implications of Jay's Interview for Jay & Adnan

I've posted 25 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. The key witness in the prosecution's case, the only witness who really incriminated Adnan, was Jay Wilds. By the proscutor's own admission, Jay gave wildy inconsistent versions of the events that occurred on January 13th during his police interviews (here and here) and his trial testimony. But the prosecutor asked jurors at Adnan's trial to "look at the big picture" and told them that the main plot points in Jay's story had been consistent.

I took the prosecutor at his word until Rabia Chaudry posted some excerpts of Jay's testimony at trial, which showed that even Jay's testimony on key events varied over the course of his various accountings. This was troubling and led me to conclude that the prosecution's case was dead and that I would not use Jay's story or the prosecution's theory of the case as any type of starting point for determining Adnan's guilt or innocence. As I noted in that post, Jay's inconsistencies tore out the heart and ripped out the brain of the prosecution's case. 

Yesterday, The Intercept posted Part 1 of its exclusive interview with Jay Wilds. I said before that the prrosecution's case was dead. With this interview, Jay has now burned the corpse. So, what are the legal consequences of this interview for Jay and Adnan? I will address these issues in succession in this post.

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Confrontational: Supreme Court of Kansas Reverses Murder Convictions Due to Confrontation Clause Error

The Confrontation Clause provides that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.

From the language of this Clause, it should be pretty clear whom it protects, and, by implication, whom it doesn't protect. This was not the case, however, in State v. Smith-Parker, 2014 WL 7331577 (Kan. 2014).

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The Serial Podcast, Transcripts: The 2:36 Best Buy Call Was in the Opening Statement at the 1st Trial!

I've posted 24 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. Today brings a new component to the podcast as Rabia Chaudry, an attorney and the sister of Adnan's best friend, has started releasing the full trial transcripts from Adnan's trials. Today, she posted a document containing jury selection and opening statements from Adnan's first trial (which ended in a mistrial). With this release, we have our first bombshell. This is from prosecutor Kevin Urick's opening statement:

 

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Do Not Assume: Illinois Court Upholds DNA Contempt Order Based on Familial Hearsay Rule

Similar to its federal counterpart, Illinois Rule of Evidence 804(b)(4)(A) provides an exception to the rule against hearsay for

A statement [by an unavailable declarant] concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated....

Rule 804(b)(4)(A) is most often invoked is cases involving disputed inheritances, as was the case in Kaull v. Kaull, 2014 IL App (2d) 130175 (Ill.App.2d 2014).

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The Serial Podcast: Ineffective Assistance of Counsel in the Aggregate vs. Single Issue IAC

It's a sign of the popularity of the Serial Podcast that I got multiple e-mails on Christmas Eve about a podcast about that podcast. This particular podcast was one done by the UVA Innocence Project regarding the final episode of the Serial Podcast. Both of the people who e-mailed me directed me to 24:21 of the UVA podcast. In this portion of the podcast, Deidre Enright, the director of the UVA Innocence Project, said the following about Adnan Syed's trial counsel:

"But, most of our lawyers aren't...they're kind of asleep at the wheel, and she wasn't that. And so it's good that there's physical evidence because we could probably pick away at many things she did wrong but I don't think she'd be ineffective under Strickland."

I noted in my last post that it would be my final post on the Serial Podcast unless and until (1) the full trial transcripts are released and/or (2) something happens with Adnan's appeal. The UVA podcast relates to Adnan's appeal because they're the ones petitioning for DNA testing. That said, I still don't have the full trial transcripts, and the folks at UVA do. Given that, I'm not going to attempt to second guess the conclusion of Deidre Enright. She's clearly a brilliant legal mind, and she clearly knows what she's talking about. What I do want to do in this post, however, is lay out the two different ways that a defendant can prove the ineffective assistance of counsel.

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Mourning the Loss of Professor Jeremy Blumenthal

I was saddened to learn today that Jeremy Blumenthal, a professor at the Syracuse University College of Law, had passed away. I met Jeremy at the AALS Conference in 2011, where he was presenting his poster, Abortion Jurisprudence and Empirical Evidence. He was also one of the co-authors on Modern Scientific Evidence: The Law and Science of Expert Testimony. I didn't know Jeremy that well, but we corresponded a few times over the years, and he always seemed to be a nice, smart, and passionate person. I send my best condolences to his family and the Syracuse community.

-CM

Torture Memo: D.C. Court Finds Sufficient Evidence to Support FSIA "Terrorism Exception" in North Korea Case

The Foreign Sovereign Immunities Act (FSIA) provides that

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

That said, FSIA contains a "terrorism exception," which negates immunity in cases involving acts such as state-sponsored torture and extrajudicial killing. In Han Kim v. Democratic People's Republic of Korea, 2014 WL 7269560 (D.C. Cir. 2014), "the family of Reverend Dong Shik Kim sued the North Korean government alleging that it abducted him, confined him to a kwan-li-so—a political penal-labor colony—tortured him, and, ultimately, killed him." When North Korea failed to appear, the Kims asked for a default judgment because they had presented sufficient evidence that the "terrorism exception" applied. The district court denied the motion "because the Kims had failed to produce 'first-hand evidence' of what happened to the Reverend." What happened on appeal?

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The Turncoat Witness: Analyzing the Differences Between Federal & Ohio Rule of Evidence 607

Federal Rule of Evidence 607 provides that

Any party, including the party that called the witness, may attack the witness’s credibility.

On the other hand, Ohio Rule of Evidence 607 reads as follows:

(A) Who may impeach. The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.

(B) Impeachment: reasonable basis. A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact. 

In State v. McKinney, 2014 WL 7226330 (Ohio App. 6th 2014), the Court of Appeals of Ohio noted that "Evid.R. 607(A) clearly allows an attack on a witness' credibility although it restricts such attacks by the party calling the witness." As the language of Rule 607(A) makes clear, however, that's not really the case.

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A Legal Companion to the Serial Podcast

Over the past couple of months, I've posted 32 entries about the 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, on January 13, 1999. The purpose of these posts was to create a legal companion to the podcast so that listeners interested in the legal issues raised by the podcast would have some answers. This post collects and categorizes each of those posts.

Before getting to my compendium of posts, I would like to restate the limitations of this project. Each of my posts is reliant on publicly available sources: the Serial Podcast itself, the Brief of Appellee (the government's appellate brief), the Brief of Appellant (Adnan's appellate brief), the timeline of Adnan's case and appeals from a Maryland Judiciary Case search, and interviews, transcripts, and notes posted on Split The Moon (the blog maintained by Rabia Chaudry, an attorney and the sister of Adnan's best friend).

This creates a few issues. First, there could be errors in some of these documents. For instance, many have claimed that there are errors in the appellate briefs. Second, I only have access to certain interviews, transcripts, and notes presented on the Serial Podcast and Split The Moon. Moreover, I sometimes only have snippets of these interviews, transcripts, and notes. If and when the full trial transcripts become available, certain statements might be put in different contexts/lights, and other evidence might emerge that changes my opinions regarding guilt and innocence. Third, because of some gaps in evidence, I sometimes have to make certain assumptions, such as the assumptions about what happened when Jay questioned his plea deal and went before Judge McCurdy. These opinions are, of course, simply opinions and not statements of fact.

So, having laid out those caveats, here is my legal companion to the Serial Podcast.

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The Serial Podcast, Coda: The Death of the Prosecution's Case

"When you tease apart the State’s case, you can get tripped up on details like this. Which is maybe why prosecutor, Kevin Urick, addressed this head on in his opening statement to the jury. He told them, "look at the big picture." The main plot points in Jay’s story have been consistent. He tells them that consistently, Jay "has always given the same story about what the defendant did where. Consistently, he tells Jennifer a consistent story, he tells police a consistent story about the defendant, he tells consistently the defendant’s involvement, the defendant’s actions on that day. He has never wavered on that point." Sarah Koenig, quoting the prosecutor's opening statement from Adnan Syed's trial in the fifth episode of the Serial Podcast.  

In the last couple of days, I've noted how I don't think that the prosecution proved Adnan's guilt beyond a reasonable doubt but how I'm on the fence about whether Adnan murdered Hae Min Lee. Now, there is no fence. 

I've done twenty posts

(here, here, here, here, here, here, here, here, here, here, here, 

here, here, here, here, here, 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, on January 13, 1999. This will be my final post about the podcast unless and until (1) the full trial transcripts are released and/or (2) something happens with Adnan's appeal.

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The Serial Podcast, Followup: The Nisha Call -- The Most Important Evidence of Adnan's...Innocence?

I've done nineteen posts

(here, here, here, here, here, here, here, here, here, here

here, here, here, here, here, 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, on January 13, 1999. In a prior post, I (1) noted how The Nisha Call was possibly the most important confluence of evidence of Adnan's guilt presented at trial; and (2) suggested ways in which the defense could have attacked it at trial. But what if The Nisha Call is actually the most important evidence of Adnan's innocence?

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The Serial Podcast, Followup: Todd Berger on Adnan's Chance of Success on Appeal

I've done nineteen posts

(here, here, here, here, here, here, here, here, here, here

here, here, here, here, here, 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, on January 13, 1999. In a prior post, I assessed Adnan's chances of succeeding on a claim of ineffective assistance of counsel based upon his trial counsel not asking the prosecution about a plea bargain. This issue is important because it could very well be the only issue that the Court of Special Appeals of Maryland addresses if it gives Adnan leave to appeal. Unfortunately for Adnan, I concluded that he has very little chance of winning on this argument.

After posting this entry, I got an e-mail from Todd A. Berger, an Assistant Professor of Law and the Director of the Criminal Defense Clinic at the Syracuse University College of Law. He's actually written an article on this issue, and I have included his e-mail and article in this post.

 

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The Serial Podcast, Episode 12: My Most Logical Scenarios for the Death of Hae Min Lee

I've done eighteen posts

(here, here, here, here, here, here, here, here, here, 

here, here, here, here, here, 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, on January 13, 1999. This post is about the twelfth and final episode of Serial: "What We Know." The episode is about, you guessed it, what we know, with Koenig noting that "all speculation is equally speculative." Koenig then asks, "So instead of most likely, how about most logical?" Taking that lead, I present to you what I think are the two most logical scenarios, both of which originate from the same starting point.

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The Serial Podcast, Episode 12 Preview: I Know Exactly What the Jury Found Beyond a Reasonable Doubt

I've done seventeen posts

(here, here, here, here, here, here, here, here, here, here, here, here, here, 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 is a preview of the twelfth and final episode of Serial. If you look at the Serial Podcast website, there is not a title for the final episode yet, but there is an image: the first page of the verdict sheet from Adnan's trial. From this, I'm guessing that the last episode will ask viewers whether they agree with the jury's decision to find Adnan guilty beyond a reasonable doubt. But guilty of what? From the image, I can pretty confidently conclude that the jury had to reach a particular conclusion about exactly how the crime was committed.

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The Serial Podcast, Episode 11: Premeditation & Manual Strangulation in Maryland

I've done sixteen posts

(here, here, here, here, here, here, here, here, here, here, here, here, 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 is about the eleventh episode of the Serial Podcast: "Rumors." This episode deals with rumors about Adnan's character and includes three interviewees using the word "premeditation." 

Many people have asked me how the prosecution proved that Adnan acted with premeditation. I have two responses that I will flesh out in this post: First, the prosecution might not have needed to prove premeditation because there are two/three other ways they could have proven first-degree murder. Second, you might assume that the person who manually strangled Hae only acted with premeditation if he planned the killing days, hours, minutes, or, at a minimum, seconds before the fatal act. You would be wrong.

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The Serial Podcast, Episode 10: Was There Prosecutorial Misconduct With Jay's Plea Deal?

I've done sixteen posts

(here, here, here, here, here, here, here, here, here, here, here, 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 is about the tenth episode of the Serial Podcast: "The Best Defense is a Good Defense." This episode deals with the performance of Adnan's trial counsel: Cristina Gutierrez. This post, however, is mostly concerned with the performance of the prosecutor: Kevin Urick.

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Victim's Text Messages Excluded from Aaron Hernandez Trial; More Support for a New Hearsay Exception?

The Boston Globe reports that a trial court on Friday excluded from evidence the victim’s text messages in the murder prosecution of former NFL star Aaron Hernandez.  From the Globe:

“The texts that Odin Lloyd sent minutes before he was fatally shot cannot be shown to the jury during the first-degree murder trial of former New England Patriot Aaron Hernandez, a judge ruled Friday, dealing a blow to prosecutors....

Minutes before he was shot in the early morning hours of June 17, 2013, Lloyd texted his sister: ‘U saw who I was with ... NFL ... Just so U know.’”

Additional coverage comes from Michael McCann (@McCannSportsLaw) at Sports Illustrated, who has been closely following the case and views this ruling, in concert with others, as a serious problem for prosecutors.

The prosecutors argued that moments before his death, Lloyd was telling his sister he was (or recently had been) with Hernandez ("NFL").

I analyzed the admissibility of the text message exchange between Lloyd and his sister in a blog post this summer, forecasting that the Massachusetts prosecutors would not be able to introduce it into evidence because it was hearsay not falling within any exception - which appears to be the judge's ruling.*

What does this ruling say about the existing hearsay rules in an age of electronic communication?

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Will the Court Unseal the Grand Jury Records in the Eric Garner Case?

You may have heard that various entities, including the New York Civil Liberties Union, have moved to unseal the entire record of the Eric Garner grand jury proceedings. Here is a copy of the NYCLU's motion. So, what's the likelihood that  the record will be unsealed?

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The Serial Podcast, Episode 9: How the Defense Could Have & Should Have Destroyed the Prosecution During Closing

I've done fifteen posts

(here, here, here, here, here, here, here, here, here, here, 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 is about the ninth episode of the Serial Podcast: "To Be Suspected." This episode deals with "[n]ew information...about what maybe didn't happen on January 13, 1999." From that description, you might think that the episode tells us little about errors that defense counsel might have made at Adnan's trial. But, as I will note in this post, the episode might have led me to defense counsel's biggest blunder.

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