The Serial Podcast, Episode 3: Evidentiary Issues Related to Mr. S's Indecent Exposure(s) & Failed Polygraph

I've done six posts (here, here [now updated], here [now updated], here, here, and here [now updated]) 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 third episode of the Serial Podcast: "Leakin Park." This episode deals with Mr. S, the man who discovered Hae's body in Leakin Park. In turn, this post deals with two issues: (1) the admissibility of evidence that Mr. S apparently had prior convictions for indecent exposure; and (2) the discoverability of the fact that Mr. S failed an initial polygraph exam about his discovery.

Admissibility of Indecent Expsoure Convictions

According to the episode, Mr. S has

indecent exposure charges, to borrow a phrase from Adnan’s defense attorney, under circumstances that 'bizarre' doesn’t even begin to define. Mr. S is arrested May of ‘94 for running about naked in residential neighborhood. Two years later, March of ‘96, he’s spotted wearing a hoodie, sunglasses, white sneakers, and nothing else. The officer writes, "the southwestern district has received numerous calls for service in the past three years to this area for the same incident, same description." Past three years! The officer chases down Mr. S onto I-95. Mr. S jumps some chain link fences, the kind with razor wire at the top, ends up in the hospital. It gets worse. Or better depending whether you enjoy police reports as much as I do. December 7, 1998, so barely two months before Mr. S finds Hae’s body there’s this. At around noon, during what I have to imagine is what Mr. S’s lunch break, a lady named Margaret is driving along and here’s the report "black male dashed out in front of my car and began shaking his body in a up and down motion. The male had on no clothes. His penis was exposed as he faced my vehicle, shaking." And this lady, Margaret, is a police officer. In uniform! She chases him, but he runs down into the metro stop. Margaret finds his work clothes in a pile and takes them which means unless Mr. S has a second outfit stashed someplace, he’s riding back to work in the altogether.

This begs two questions: 1. Was Mr. S actually convicted of indecent exposure? 2. Was Mr. S called at trial? Let's assume that the answer to both of these questions is "yes." This begs the third question of whether the defense could have used Mr. S's indecent exposure conviction(s) to impeach him. Maryland Rule of Evidence 5-609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.

So, is indecent exposure an infamous crime or another crime relevant to a witness's credibility? If Adnan were being prosecuted in Texas, which allows for impeachment based upon convictions for crimes of moral turpitude, Mr. S's indecent exposure conviction(s) likely would have been admissible. See, e.g., Smith v. State, 439 S.W.3d 451 (Tex.App. 1st [Hous. 2014) (upholding the admission of a witness's indecent exposure conviction). In Maryland, however, the Maryland Court of Appeals has consistently held since its opinion in Ricketts v. State, 436 A.2d 906 (Md. 1981),

that, for purposes of impeachment, indecent exposure is not an infamous crime, a crime of moral turpitude, a felony, nor a crime involving dishonesty or deceit. Further, we hold, it is a lesser crime for which the proscribed conduct includes such a wide variety of behavior that the factfinder would be unable to make a reasoned judgment as to whether the offense affects the defendant's credibility; it is inadmissible for purposes of impeachment.

I find it odd that Maryland courts do not regard indecent exposure as a crime of moral turpitude, but that's of no moment. The clear conclusion is that Adnan could not have used Mr. S's indecent exposure conviction(s) to impeach him.

Could Adnan have used the convictions to establish Mr. S as an alternate suspect? In a prior post, I noted how the State (perhaps erroneously) used Maryland Rule of Evidence 5-404(b) to admit Adnan's training as an EMT to prove that he had special knowledge of how to fatally strangle someone. Rule 5-404(b) allows a party to use a witness's prior acts, training, etc. to prove permissible purposes such as knowledge or modus operandi. Typically, it is the prosecution relying on the Rule to prove the defendant's guilt. 

But sometimes, the defendant uses the Rule to try to establish an alternate suspect. Such evidence is known as "reverse 404(b) evidence" because it is the opposite of how the Rule is typically used. See, e.g, Gray v. State, 769 A.2d 192 (Md.App. 2001). In the third episode, however, Koenig notes that there was no evidence that Hae was sexually assaulted or that there was anything of a sexual nature connected to her crime. Therefore, it is difficult to see how Mr. S's conviction(s) would have any relevance to Adnan's trial.

So, was there any way that Adnan could have used Mr. S's indecent exposure(s) at trial? Possibly. Maryland Rule of Evidence 5-608(b) provides that

The court may permit any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred. The conduct may not be proved by extrinsic evidence.

Remember how Mr. S exposed himself in front of a police officer named Margaret, she chased him, and she eventually found his work clothes in a pile? In the podcast, Sarah Koenig notes that

The same day he flashes Margaret, so December 7, 1998, Mr. S files his own police report. "There’s been a theft," he says, from his car. Someone has taken his cell phone, his money, his keys, his work clothes. But you and I, we know who has all of it. Officer Margaret. 

That's a false police report by Mr. S and certainly something that defense counsel could have inquired into during cross-examination of Mr. S at trial, regardless of whether Mr. S was ever convicted of indecent exposure. It's right there in Rule 5-608(b). But it's a pretty minor issue in the grand scheme of things.

Mr. S Failing a Polygraph Exam

According to the podcast,

The same day they interview [Mr. S] on tape, February 18, they also give him a polygraph test, which he fails. Deception indicated was the conclusion. But the tester also said Mr. S seemed to be nervous cuz apparently he had an important meeting with a realtor that day. His wife was expecting him to pick her up. So the tester recommends a do over. About a week later, they give him another polygraph. This time with different questions. For instance, "Do you know if that girl you found died because she was hit with a tire iron?" I guess that’s a thing. This time the result is: no deception indicated. He passes. And very quickly, Mr. S fades from their view.

So, what was Mr. S asked during these polygraph exams? Rabia Chaudry, an attorney and the older sister of Adnan's best friend, posted them on her blog:

First Polygraph Exam

First Polygraph Results

Second Polygraph Exam & Results

Now, Ms. Chaudry raises some interesting questions on her blog: Why did the questions change between polygraph exams? During the second polygraph exam, why wasn't Mr. S asked whether he was withholding any information? During the second polygraph exam, why wasn't Mr. S asked whether he had anything to do with the girl's death?

Of course, at this point, you may be asking your own question: Why does any of this matter? Polygraph evidence is generally inadmissible except in New Mexico. And polygraphs are primarily inadmissible because they test stress, not honesty. Therefore, when the person being tested in stressed, which seems to be the case with Mr. S during the first polygraph exam, the results can be inaccurate. Typically, this stress comes from being accused of a crime, which is often referred to as white coat syndrome.

The interesting thing with Mr. S, though, is that his stress apparently did not come from being a suspect but instead came from an upcoming meeting with a realtor. Why is this interesting? Well, a polygraph doesn't just test a person's reactions to questions in a vacuum. The polygraph examiner establishes a baseline of the subject's vitals and then compares that baseline to the subject's vitals when asked particular questions. If the deviation in vitals in response to a particular question is significant enough, the polygraph examiner notes that he detects deception in the subject's response. Therefore, we might have more reason to believe that Mr. S was being deceptive than is the case with the typical subject/suspect, who is calm until he is hit with the tough questions.

That side note aside, Mr. S's first failed polygraph was clearly inadmissible at Adnan's trial in Maryland. But was the fact that Mr. S failed the first polygraph test something that the State had to disclose to Adnan? In a prior post, I noted how the prosecution possibly violated the Brady doctrine by failing to timely disclose some details regarding Jay's plea deal. The Brady doctrine states that the prosecution violates the Due Process Clause when it fails to timely disclose material exculpatory evidence to the defendant. But can inadmissible evidence such as a failed polygraph test form the basis for a Brady violation?

This is where things get difficult for Adnan. The Supreme Court addressed this very issue in Wood v. Bartholomew. In Wood, the defendant was charged with a murder at a laundromat, and his brother Rodney was given a polygraph test.

The examiner...asked Rodney whether he had assisted his brother in the robbery and whether at any time he and his brother were in the laundromat together. Rodney responded in the negative to both questions, and the examiner concluded that the responses to the questions indicated deception. Neither examination was disclosed to the defense.

The Supreme Court found no issue with nondisclosure, but its reasoning was unclear. At some points, the Court implied that the failed polygraph test did not have to be disclosed because it was inadmissible. At other points, the Court implied that the failed polygraph test was immaterial because of the strong evidence of the defendant's guilt and because the test did not tend to exonerate him. 

Some courts in the wake of Wood have held that the failure to disclose inadmissible evidence such as a failed polygraph test can never form the basis for a Brady violation. Other courts, however, have held that even inadmissible evidence could form the basis for a Brady violation if it could have led to admissible evidence being discovered. See, e.g, United States v. Gil, 297 F.3d 93, 105 (2nd Cir. 2002). As far as I can tell, Maryland courts have never ruled on the issue.

So, what's Adnan's best argument under Brady? I don't think (m)any people suspect that Mr. S actually killed Hae. But in the episode, I think Sarah Koenig does a good job of hinting at the possible relevance of Mr. S. The circumstances of his "accidental" discovery of Hae seem suspicious, meaning that he might have seen Hae being murdered or, more likely, he might have been told where she was buried. In his first polygraph exam, Mr. S failed questions about whether he was withholding any information regarding Hae's death and whether he had been to the murder scene before. So, defense counsel's argument would be that if the State disclosed this first failed polygraph, they would have followed up with Mr. S, who could have given them information/leads about the real killer.

Does that make the evidence "material" under Brady? I'm guessing that the answer is still "no." Defense counsel's argument would be far too speculative. And of course all of this assume that the prosecution in fact did not disclose Mr. S's failed polygraph. In the end, I'm guessing that all of the evidentiary issues related to Mr. S are like Mr. S himself: an interesting diversion in the death of Hae but not something that actually has much importance to the case.

-CM