EvidenceProf Blog

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

Friday, December 19, 2014

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

I've done nineteen posts


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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?

By way of review, Adnan claims that, on January 13th, he loaned Jay his car and cell phone at lunchtime and didn't get them back until after track practice at "five something." Jay claims that Adnan killed Hae after school, called him from a pay phone at Best Buy, and told him to meet him there. Adnan's cell phone records show that a call was made at 3:32 P.M. to a girl in Silver Spring named Nisha whom (1) Adnan was seeing; and (2) Jay didn't know. Jay claims that Adnan handed him his phone and that he talked to a girl from Silver Spring (Jay claims that he doesn't remember her name) on the afternoon of January 13th. Nisha also remembers a phone call in which Adnan handed Jay his cell phone to talk to her, but here's her recollection of the call from the first trial:

Ummm, it’s a little hard to recall, but I remember [Adnan] telling me that Jay invite- invited him over to a video store that he worked at. And, he basically well Adnan walked in with his cell phone and then like- he told me to speak with Jay and I was like ‘okay’ cause Jay wanted to say hi so I said hi to Jay. And that’s all I can really recall.  

Jay didn't start working at the video store until the end of January. This fact, along with other things I listed in my prior post, have led some to believe that The Nisha Call was a butt dial and that Jay is remembering a conversation that happened on a later date. But what if The Nisha Call was actually Jay's attempt to frame Adnan? 

Let's start with the premise that Nisha is correct about the call. This seems to be the likeliest version of events. Why is Jay likely wrong?: (1) Jay doesn't mention the Nisha Call during his first police interview; (2) when Jay does mention The Nisha Call, he claims it was "7-8, 10 minutes" when the call to Nisha on January 13th was actually 2:22; (3) Jay's claim about where he was when the call occurred doesn't match the cell tower ping; and (4) "Jay lies." Meanwhile, Nisha, a witness with no incentive to lie, is consistent about the call occurring while Jay was working at the video store in her testimony at both of Adnan's trials.

So, here's the theory: Some time after killing Hae, Jay looked at Adnan's cell phone, found a person he didn't know, and dialed her number. If she picked up, he'd hang up. If she didn't pick up, he'd let it ring for a few minutes. It's also possible that Jay accidentally dialed Nisha's number, realized he'd dialed it a few minutes later, and hatched a plan to implicate Adnan. Or it's possible that Jay accidentally dialed Nisha's number, Adnan noticed this in his call history when he got his phone back, Adnan asked Jay why he called Nisha, and the plan was hatched. The plan: make it look like Adnan was with Jay and his cell phone in the afternoon on January 13th so that Jay could frame Adnan for Hae's death (or at least cover his @ss if he ever became a suspect).

At first, these scenarios might seem implausible, but, again, assume that Nisha's accounting of the call with Jay is correct.

Adnan killed Hae

Was the call Nisha described likely to happen if, as Jay claimed, Adnan killed Hae and then threatened Jay, causing Jay to become terrified of Adnan? Let's look at it from Jay's perspective. You're terrified of Adnan because he killed his ex-girlfriend, but you invite him to hang out with you at your job and then ask to talk to his new girl. The same girl whom he called soon after killing Hae, leading to a casual conversation that had nothing to do with the murder.  That's weird. If I'm Jay, I want to stay far away from Adnan, and I want to know NOTHING about his new girl. 

Next, let's look at this from Adnan's perspective. You've killed Hae, and the only way you're likely to be caught is if the police can connect you to Jay (which, of course, is what actually happened). If I'm Adnan, I'm probably trying to keep my distance from Jay, and I'm certainly trying to avoid seeing him in public places. On the podcast, we're told that "Jay lies." What seems even clearer from the podcast is that "Jay talks." If Adnan killed Hae and got Jay's help in burying her, his best bet is to see Jay rarely and only in private places.

Jay killed Hae

On the other hand, was the call Nisha described likely to happen if Jay killed Hae? Let's look at it from Jay's perspective. You've set up The Nisha Call to frame Adnan or cover your @ss if the police suspect you. Now, you want the cherry on top. You invite Adnan to your job and ask to talk to Nisha. Now, you have a conversation in which Adnan handed you his cell phone to talk to Nisha. If you're Jay, you can now really sell the fact that Adnan was with you on the afternoon of January 13th and not at school. If Nisha says that the call happened at a later date, maybe she's mistaken. Maybe the police/prosecutor/jurors think you're mistaken. After all, you've been mistaken about A LOT. But maybe your explanation of The Nisha Call sticks. Maybe the police believe it. Maybe the prosecutor believes it. Maybe the jurors believe it. Amazingly, this appears to be exactly what happened. 

What's interesting about this is that it's not some amazing scheme by Jay, forcing us to believe that Jay is a criminal mastermind. It's a kind of harebrained scheme, and it's not especially well executed. But it works, even on Nisha. When asked at trial whether the 3:32 call could be the call with Jay, Nisha responds, "It could be, but I’m not sure."  

Next, let's look at it from Adnan's perspective. You have no idea who killed Hae. Jay invites you to the video store and asks to talk to Nisha. You think nothing of it and hand the phone to Jay.


I think we have four possible explanations for The Nisha Call.

First, Adnan does in fact call Nisha at 3:32 P.M. on January 13th and has Jay talk to her. To believe that Adnan handed Jay the phone to talk to Nisha, you have to believe that both Jay and Nisha are lying and/or mistaken about a lot of important details. This seems very implausible.

Second, Adnan does in fact call Nisha at 3:32 P.M. on January 13th but doesn't have Jay talk to her. Jay is mistaking his later call with Nisha at the video store with Adnan's call to her on January 13th. There are three big question marks here: (1) Why is Adnan calling Nisha soon after he killed Hae? (2) Assuming Adnan planned out the killing of Hae, isn't it stupid to call Hae at 3:32 P.M. when he knows he's going to claim that he didn't have his cell phone until after track practice at five something? (3) Why is Jay inviting Adnan to the video store and asking to talk to Nisha if he's scared of Adnan because he knows Adnan killed Hae? That said, this is the most plausible scenario for Adnan's guilt.

Third, The Nisha Call is a butt dial (and not a butt dial that Jay realizes and uses to frame Adnan). A butt dial doesn't necessarily prove that Jay or Adnan is guilty. Either could have the phone when the butt dial was made, and they could be alone or together when the butt dial is made. A 2:22 butt dial is very implausible but maybe not as implausible as we once thought, according to the final episode.

Fourth, Jay calls Nisha at 3:32 P.M. on January 13th as part of a plan to frame Adnan or cover his @ss if he becomes a suspect. Later, Jay asks Adnan to meet him at his job at the video store, asks to talk to Nisha, and later tells the police that Adnan called some girl from Silver Spring on January 13th and handed him the phone to talk with her. As with the second explanation, this has some flaws, but it's also difficult to imagine Jay inviting Adnan to his job and asking to talk to Nisha if Jay knows Adnan killed Hae and is scared of him. This is the most plausible scenario for Jay's guilt.

So, where does this leave me? Still firmly on the fence. But assuming that you think a 2:22 butt dial is very unlikely (1% chance? 2% 3% 5%), you're basically left with two viable options (1) Adnan called Nisha at 3:32 on January 13th, meaning he almost certainly killed Hae; or (2) Jay called Nisha at 3:32 on January 13th, meaning he was almost certainly using the call to  frame Adnan/cover his @ss. This takes me to the title of this post. The Nisha Call is either the most important evidence of Adnan's guilt OR the most important evidence of Adnan's innocence.


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So if Jay framed Adnand by calling Nisha. Who did he talk to for 2:22? It seems unreasonable he would let the phone ring for 2:22 and then hang up.

Posted by: Ravi | Jan 5, 2015 5:49:27 PM

In the 12th episode, Sarah Koenig notes that unanswered calls for an unreasonable amount of time would be billed to the caller back in 1999. Therefore, if an unanswered call was made to Nisha for 2:22 before it was hung up, it would register as a 2:22 call.

Posted by: Colin Miller | Jan 6, 2015 6:55:54 AM

Or what if Jay killed Hae and it was Hae herself who dialed the number from Adnan's phone, as it was stored as the first speed dial number, by mashing buttons for help during the 3-5 minutes she was being strangled and no one answered for 2:22? If you presume something along these lines happened, all roads lead to Jay. His story regarding Adnan is absolutely nonsensical. Anyway, that's my take.

Posted by: Erica | Jan 8, 2015 12:25:02 AM

The issue with the Nisha call being part of a plan by Jay to frame Adnan/cover his @ss is that he would have needed to know at the time that an unanswered call would show up on the call log. A fact that was not known to anybody at the trial (that's why the Nisha call was relied so heavily upon by Urick). And it appeared to be quite a mystery to the Serial staff as well (they went through old AT&T service agreements to find out). Otherwise "letting it ring for a few minutes" serves no purpose in Jay's "frame Adnan" scheme.

If instead he was assuming that any outgoing call would show up on the log (answered or not), then why would he ring Nisha for 2:22 ? After all, he is always taking the risk that Nisha would actually pick up and later remember that it was not Adnan, but only Jay/some unknown person she talked to. This would not only not help Jay, but could in fact hurt him.

So if his plan was instead to get somebody that only Adnan knew to actually ANSWER the phone (and then maybe immediately hang up) and Nisha did not answer (as is assumed by your post), he would most likely dial the next person in the address book that only Adnan knew (and so forth until somebody answered). Which he did not do.

Now of course, it is still possible that Jay only hatched the plan AFTER he - accidentally - called Nisha. This leaves us with two scenarios: he either noticed the call himself or Adnan noticed it in the call history/call log and brought it to his attention.

If we assume Adnan noticed it in his call history and asked Jay why he was calling Nisha, Jay would have to come up with an explanation. This assumes that Adnan cared enough that he would ask Jay about a call to Nisha - a person Adnan called frequently and whose number would not jump out at him from simply being in his call history (first person called with his new phone). This also assumes, of course, that he did not care about the calls to Jen, Phil or Patrick made earlier. Jay could have either waved it off ("nobody answered / it was a butt dial"), in which case he would have needed to know about unanswered calls showing up on the call log (see first paragraph), or he would have needed to come up with an innocuous explanation (i.e. "I dialed her by accident and said hi"). At this point you have to further assume that Adnan would not ask Nisha - a person he spoke to frequently around this time - something along the lines of "Hey, my friend Jay told me he talked to you earlier", since neither Adnan nor Nisha have a recollection of ever talking about this. Remember, Adnan supposedly cared enough about this call to ask Jay about it.
Which brings us to the main point of this paragraph, namely that Adnan has no recollection and no explanation for this most important call (remember Serial's: "Think of it as a headline - The Nisha call"). Even assuming he was not aware at the time how critical this call would become, it is safe to assume that he at least tried to refresh his memory after his arrest (early March 1999 at the latest) using his cell-phone logs. Of course, if Adnan only asked Jay about the Nisha call after he received his phone bill (early February), it is even more likely he would remember later.
In summary: For the "framing Adnan" theory to work either Jay knew that unanswered calls showed up in the call log or it is highly unlikely that Adnan brought the Nisha call to Jay's attention.

Which leaves us with the last scenario: Jay noticed the call himself after he accidentally dialed Nisha. In this scenario he either noticed the call immediately or only after some time. If he noticed it immediately after dialing, it begs the question why he would let it ring for 2:22 with nobody answering (unless his plan to "frame Adnan" came to him at that very moment, in which case the first paragraph also applies). If instead he only noticed after some time, he could not be sure whether a machine, a human or nobody answered. If he assumed nobody picked up the call, then the first paragraph applies again (at least for the "framing Adnan" theory to work).
So he would have to assume that either Nisha or an answering machine/voicemail actually picked up the call. In this scenario Jay was now under the impression that there was a call to Nisha/Nisha's voicemail. This, of course, provides even more of an incentive for Jay to get in contact with Nisha to find out whether she listened in on the accidental call/had a voicemail recording and/or arrange for a Nisha call together with Adnan.

To summarize: The only scenario in which the Nisha call is part of a scheme to "frame Adnan" is if Jay either knew that unanswered calls show up on a call log (something nobody else knew) or if the call was accidental. If it was accidental, we are back to butt-dial. All of this assumes, of course, that Nisha recalled/testified correctly and did not actually answer the call (as was assumed by your post).

In short: The Nisha call is not the most important evidence of Adnan's innocence.

Posted by: joe | Jan 8, 2015 7:09:21 PM

I was under the impression that this case was one of the first to introduce cell phone records as evidence in Maryland. It is 1999, Jay is young and has no phone of his own. Do you really think he would be savvy enough to intentionally plant a red herring in the future evidence file, or for that matter to even know he is leaving footprints throughout the day as he uses the phone? If he had this depth of understanding he may have been more circumspect on the calls made throughout the day, ore even obtained a "burner" phone.

Posted by: PJ | Jan 10, 2015 1:10:47 PM

Let's say that you've killed your friend's ex-girlfriend. You also happen to have your friend's car and cell phone at the time. You want plausible deniability should you ever become a suspect. What might you do? I think you might use your friend's cell phone to call someone only he knows. If someone picks up, you hang up. If it goes to an answering machine, you hang up when the answering machine picks up. If no one picks up, you eventually hang up.

Is this what happened? I have no idea. Is it any less likely than a butt dial? I don't know. Could The Nisha Call be Adnan calling Nisha after he killed Hae? Sure.

Also, PJ, I think this was the first case to use cell tower evidence in Maryland, not the first case to use cell phone records. I imagine that most people would have thought in 1999 that there would be a record made of call from a cell phone. Or maybe not.

Posted by: Colin Miller | Jan 11, 2015 9:51:00 AM

It appears you have not read my response to your post - probably because it was too long and could use some formatting. I apologize. It is difficult to format text in your blog's comment section. However, If I may respectfully ask you to read it as I have laid out why your original hypotheses would also require Jay to know that unanswered calls get logged - something nobody at the trial or later thought possible.

I want to point out that your assertion "You want plausible deniability should you ever become a suspect. What might you do? I think you might use your friend's cell phone to call someone only he knows. If someone picks up, you hang up. If it goes to an answering machine, you hang up when the answering machine picks up. If no one picks up, you eventually hang up." is not logically consistent.

If his aim for "plausible deniability" is that "someone only he knows" would actually ANSWER the phone (regardless of phone/machine), why would he give up after nobody answered. He would try to call somebody else that "only Adnan knows" until somebody answered. Which he did not do. If he did not require somebody to answer the phone, why let it ring for 2:22 ?

Posted by: joe | Jan 14, 2015 6:42:59 AM

I'm not sure that teenagers in 1999 would have been aware that cell phone records, towers, and so on could actually be used against them in this way.

It's common knowledge now, but I don't think it was back then.

Posted by: brgulker | Jan 26, 2015 7:39:29 AM

I would suggest looking into how long a phone would ring before it automatically hung up back in 1999 with ATandT. Seems to me if a phone rings long enough with no answer the line is cut off. If the 2:22 call is cut off then it because of the time allowed for a non-answered call you may have a pretty good argument.

Posted by: John | May 4, 2015 4:33:07 PM

The Nisha call is the LEAST important evidence. Jay had the phone for hours and used it non stop. Can you imagine Adnan being with him and not using HIS OWN PHONE in 1999? Also,if you habe someones phone for several hours, what are the chances that you WONT accidentally call one of his contacts?
The Nisha call is meaningless and I am sjocked that so much is made of it. Tue call log is clear that Jay jad the phone all day. He was the man with the phone. Adnan wasnt tagging along and letting him use his phone the whole time. it was also made clear by both Adnan and Jay that Adnan lent his car, not his phone. The phone was just there in yhe glove compatment cause he couldnt take ot to school. Ao if Adnan did not loan the phone, how is Jay making all these calls unless he is alone?

Posted by: anon | Jun 26, 2015 7:30:57 PM

The biggest confusion to me is regarding Jay and Adnan's relationship. Adnan says that they were acquaintances; Jay being his good friend's boyfriend, and he is adamant on a phone call with SK on Serial that he barely knows the guy. Yet it is also known that Adnan has given Jay rides in his car, visited him at his workplace, and even lent him his car (and cell phone). This is contradictory. Especially when we talk about Adnan visiting Jay at work in the weeks following Hae's murder. If Adnan is guilty, is he checking up on Jay? Making sure he isn't talking? Saying he was "invited" to the video store when he is talking to Nisha (per her testimony)? If Jay was an accomplice, like he testifies, why is he still hanging out with Adnan? Why is Adnan still hanging out with Jay, going to a porn store when he is 17 and not even "allowed" to date girls. I think most people would be walking in a separate direction from their murder accomplice, not maturing their relationship.
There isn't a lot of information about Adnan's social life during the time between the murder and the arrest. These are the pieces that really leave me scratching my head, especially when I channel my 17 year old self.
Adnan gets a brand new cell phone, he's so excited about it that he calls a friend, a girlfriend, and an ex-girlfriend the night he gets it, and puts in all his auto-dials. Then, the next day he leaves it with an "acquaintance" in his own car when he lends it out... seems fishy to me.
I don't think Jay is aware enough to organize any plan about the Nisha call. I don't think the towers or call records or any of that is going through his head, especially if he does not bring it up at the first police interview. The kid is terrible with directions, street names, time frames, can't even spell Adnan's name right (per a map he drew for the police). It's such a shame this trial rested on his words.

Posted by: nikki | Oct 26, 2015 3:31:18 AM

Adnan is not “checking up” on Jay to make sure he is not talking..just speculation but I think the two of them were in on this together the whole time and the plan was to be each other’s alibi. Adnan makes the Nisha call in order to establish that he WAS with Jay and not off killing Hae. Similar to stopping by Cathys house together etc. Things only begin to fall apart after the fact when Jay gets pressure from the police and has to flip on Adnan. Jay of course has the upper hand here since he is not the murderer and Adnan is forced to go with his “I don’t recall anything from that day” nonsense. Any alibi that Adnan could have used with Jay that day is gone. Jay does his best to mess around with the cops and involve himself as little as possible but in the end he has to tell the story like it is.
The two were absolutely closer friends than they lead on, and Adnan thought he could pull this off with Jay’s help but it backfired. Hence his “you’re pathetic” comment in the courtroom. There was no other ex boyfrfiend, school janitor, escaped serial kiiler..just Adnan and Jay. Why would Adnan never once accuse Jay of murdering Hae? Because he can’t. He has to stick with his no memory excuse and hope Jay’s testimony/timeline of events gets picked apart so badly over the next 15 years or that it loses all credibility with a jury.

Posted by: rmk | Nov 10, 2015 11:47:24 AM

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