The Serial Podcast, Episode 4: How the Defense Could Have Used Jay's Police Statements at Trial

I've done seven posts (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 fourth episode of the Serial Podcast: "Inconsistencies."  This episode deals with inconsistencies in the different versions of events relayed by Jay, the key witness for the prosecution. In turn, this post deals with the admissibility of these different accountings at trial.

Why was Jay the key witness for the prosecution? As I noted in a prior post, according to Jay's testimony at trial,

(1) Adnan told [Jay] that he was going to kill Hae;

(2) Adnan left his cell phone with [Jay] and told him that he would call him after he killed Hae;

(3) Adnan called [Jay], said he'd killed Hae, and told [Jay] to meet him in a Best Buy parking lot;

(4) they met in the parking lot, and Adnan showed him Hae's body in the trunk of her car;

(5) Adnan drove Hae's car to Lincoln [Leakin] Park while [Jay] drove his own car to the park;

(6) [Jay] helped Adnan dig a hole to bury Hae's body; and

(7) at Adnan's request, [Jay] drove him back to his high school so that he could be seen."

But that wasn't the only accounting of events given by Jay. He gave two recorded statements to police on February 28, 1999 and March 15, 1999. Rabia Chaudry, an attorney and the mother [sister] of Adnan's best friend, has actually posted the transcripts of these interviews on her blog. During the second of these interviews, Jay also drew this map of the Best Buy Parking Lot:

Jay also gave other, unrecorded statements to police. For instance, on March 18, 1999, he did a ride around with police officers, and one of the officers handwrote an itinerary detailing the gist of what Jay said.

So, to what extent were Jay's other statements admissible at trial?

Unrecorded Statements

Similar to its federal counterpart, Maryland Rule of Evidence 5-801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In turn, like its federal counterpart, Maryland Rule of Evidence 5-802 states that "[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible."

Any unrecorded statement made by Jay is hearsay, meaning that defense counsel could not introduce it at trial to prove the truth of the matter asserted. These unrecorded statements, however, would be admissible under Maryland Rule of Evidence 5-613, which reads as follows:

(a) Examining Witness Concerning Prior Statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.

So, what does this Rule mean? It means that defense counsel could use Jay's unrecorded prior inconsistent statements at trial to impeach him, i.e., to call into question his credibility. Let's use an example: In the police itinerary to the March 18th ride around, Jay said that, after Adnan murdered Hae, the two of them went to Patapsco State Park to discuss the murder. At trial, Jay made no mention of any trip to Patapsco State Park. 

So, how could defense counsel use this prior inconsistent statement at trial? During cross-examination of Jay, defense counsel could hold three copies of the police itinerary in her hand and say, "Jay, isn't it true that you told police officers on March 18th that you went with Adnan to Patapsco State Park on the day of the murder?"

First, assume Jay says, "I never said that." At this point, defense counsel could give copies of the police itinerary to the prosecutor and Jay and ask him, "Jay, here's a copy of the police itinerary from your March 18th ride around. It says right here that you said Adnan and you went to Patapsco State Park on the day of the murder. Do you deny making that statement?" If Jay again denies making the statement, defense counsel could move under Rule 5-613(b) to have the police itinerary admitted as an exhibit that the jury could consider during deliberations.

Second, assume that Jay either initially or after being confronted with the itinerary admits to making the statement. Under Rule 5-613(b), the itinerary would not be admissible as an exhibit. But defense counsel could ask Jay, "Why did you tell police that you went to Patapsco State Park with Adnan on the day of the murder if that wasn't the truth?"

As noted, though, in either case, Jay's prior statement is only admissible to impeach him, not to prove the truth of the matter asserted. So, what does that mean? Defense counsel would likely reference this statement during her closing argument. And because the statement is only admissible to impeach, defense counsel could merely argue, "On March 18th, Jay told police that he went to Patapsco State Park with Adnan on the day of the murder. He has now said at trial that Adnan and he never went to Patapsco State Park on the day of the murder. This is inconsistency #X and yet again shows that Jay in unreliable as a witness."

Defense counsel could not, however, say the following during her closing argument: "On March 18th, Jay told police that he went to Patapsco State Park with Adnan on the day of the murder. Think about the timeline that the prosecutor has presented to you during trial. You are entitled to take Jay's statement as proof that Adnan and he actually went to Patapsco State Park on the day of the murder, and that makes it impossible that the events occurred on that day in a manner that was consistent with the State's timeline." 

That's the key point regarding any unrecorded statements. They are only admissible to call into question Jay's credibility as a witness; they are not admissible to prove the truth of the matter asserted at trial and directly refute the State's timeline/version of events.

Recorded Police Interviews

There's an interesting difference between federal law and Maryland law on this issue. Federal Rule of Evidence 801(d)(1)(A) indicates that

A statement that meets the following conditions is not hearsay: (1)...The declarant testifies and is subject to cross-examination about a prior statement, and the statement:  (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

Meanwhile, a statement that was not given under penalty of perjury is hearsay and is only admissible to impeach the witness under Federal Rule of Evidence 613.

Now, let's turn to the Maryland Rules of Evidence, which applied at Adnan's trial. At the time of Adnan's trial(s), Maryland Rule of Evidence 5-802.1(a) provided that

The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:

(a) A statement that is inconsistent with the declarant's testimony, if the statement was

(1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(2) reduced to writing and signed by the declarant; or

(3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement.

As noted, Jay gave two recorded statements to police on February 28, 1999 and March 15, 1999. Again, you can review the transcripts for yourself. These transcripts would thus be defined as nonhearsay under Rule 5-802.1(a)(3). And what this means is that these statements would be admissible both to impeach Jay and to prove the truth of the matter asserted in those statements. So, what is the practical significance of this Rule at trial?

In addition to posting transcripts of Jay's police interviews on her blog, Rabia Chaudry also noted that she prepared a 60 page spreadsheet showing inconsistencies between the two statements.

Here is an example of one of those inconsistencies:

As you can see, in statement one, Jay says he got the call to pick up Adnan from track practice at about 6:45 P.M. In the second statement, that call comes at about 5:45 P.M. In statement one, Jay and Adnan go to McDonald's. In the second statement, there's no trip to McDonald's. What happened between statement one and statement two? Police showed Jay the cell tower pings, which (possibly) indicate the general location of Adnan's cell phone on the day of the murder.

So, where does this all leave us? If I'm defense counsel, here's what I do pursuant to Rule 5-802.1(a)(3) in my closing argument: "The prosecution has given you a timeline of events on the day of the murder based upon Jay's testimony. They tell you that he was consistent with that timeline on the witness stand, even when subjected to cross-examination. And that's what they have to do. If you're not completely sold on that timeline, that's reasonable doubt. If you think that certain events on that timeline wouldn't or couldn't have happened, that's reasonable doubt. If you think there's any chance that the story Jay told you at trial isn't true, that's reasonable doubt.

So, where's your reasonable doubt? Before testifying at trial, Jay gave two recorded statements to police. You will have those statements with you in the deliberation room. Under the Maryland Rules of Evidence, those statements are just as legitimate and entitled to just as much weight as the statements that Jay gave on the witness stand. In fact, I would contend to you that they are more legitimate and entitled to more weight. They were given much closer in time to the crime charged. The first of these statements was given before the police showed Jay the cell tower information that would allow him to conform his testimony to that data. Both of these statements were given before Jay was able to work with the State in ironing out any inconsistencies in his testimony.

When you go back to deliberate, I have every confidence that you will find reasonable doubt with regard to the timeline Jay laid out to you on the witness stand. But if you do reach the point where you think that you believe his timeline beyond a reasonable doubt, I ask one thing of you. Compare that timeline with the timelines in his two statements to police. Note the inconsistencies. Note that those statements are entitled to just as much consideration as his testimony at trial. When you're done, ask yourself whether you still believe in guilt beyond a reasonable doubt."

Final Thoughts

Two final thoughts. On her blog, Rabia Chaudry also posted a recorded police interview with Jennifer Pusateri, another witness for the prosecution. Any inconsistent statements in this interview would also be admissible nonhearsay under Rule 5-802.1(a)(3). Second, Adnan actually had a first trial that ended in a mistrial after a few days due to a juror overhearing a judge calling defense counsel a liar. Any inconsistent testimony from that trial would also be admissible nonhearsay under Rule 5-802.1(a)(3).

-CM