EvidenceProf Blog

Fixed Lividity vs. a Mixed Pattern of Lividity & the Positioning of a Body After Death

Livor mortis, according to the Assistant State Medical Examiner, "is where there is a gravitational settling of the blood in the dependent portions of the body. In other words, if the body when it dies is lying on its back you will see the liver which is a sort of purple/reddish discoloration of the skin on the posterior portion." Hughes v. State, 437 A.2d 559, 565 n.4 (Del. 1981).

In this post, I will follow up on my post from yesterday on fixed lividity/livor mortis by discussing some additional cases and distinguishing "fixed lividity" from a "mixed" pattern of lividity.

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Fixed Lividity/Livor Mortis & What It Means About a Body's Burial

I've been getting some questions about the concept of fixed lividity/livor mortis so I thought that I'd do a quick introductory post on the matter.

When blood settles to the bottom, it stays there. After it's there for a long time, the pattern becomes "fixed," i.e., when you press your finger into the skin, the skin doesn't blanch much. Try this on your hand right now...push your finger deep into the skin. The skin will blanch (turn white) as the blood moves away from the pressure. If the lividity pattern is fixed or close to fixed, the blood won't want to move, so the skin won't blanch much. Whether or not the pattern is fixed helps us to determine how long you've been dead.

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Liar, Liar: Will Kansas Now Allow For Polygraph Evidence to be Admitted?

According to State v. Shively, 999 P.2d 952, 957 (Kan. 2000).

In most states polygraph evidence is either per se inadmissible in trials or is only admissible by stipulation, see United States v. Scheffer, 523 U.S. 303, 311, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), and State v. Porter, 241 Conn. 57, 124-25, 698 A.2d 739 (1997), cert. denied 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). Polygraph evidence has long been inadmissible in criminal trials in Kansas absent a stipulation by the parties. See State v. Lassley, 218 Kan. 758, 760, 545 P.2d 383 (1976).

But is that all about to change in the Sunflower State?

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Police Body Camera Videos as Evidence

The Washington Post published this interesting piece yesterday about the use of police body camera video as evidence in court, a phenomenon that will become increasingly common as more and more police agencies adopt body cameras.

Overall this appears to be a positive development, but there will be growing pains as departments develop protocols to preserve and produce camera footage during discovery.  For an earlier post noting the growing pains with respect to open records request, see here.

Indeed, the Post article quotes the DC US Attorney, stating:

“Our biggest concern with respect to this issue is that in order for body cameras to work effectively in the courtroom, it will be imperative for the city to devote significant resources to effectively preserve, process and produce the extraordinary volume of recordings generated by the cameras so that the government can uphold its obligations to provide these materials to criminal defendants.”

Lots of evidentiary implications as well. 

For example, doesn't the conspicuous  presence of a police body camera make a citizen's otherwise spontaneous utterance more likely to be deemed "testimonial" and therefore inadmissible under the Confrontation Clause?

 

Ineffective Assistance of Counsel & the Suspended/Disbarred Attorney

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an ineffective assistance of counsel claim by establishing (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice, i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Under Strickland's first prong,

a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

It is well established that the disbarment or suspension of an attorney after he represents a client does not per se lead to a finding of unreasonableness under Strickland's first prong unless the disbarment or suspension was causally related to his representation of the client. See, e.g., Padgett v. United States, 302 F.Supp.2d 593, 603 (D.S.C. 2004). But, is the presumption of reasonableness  removed or maybe even flipped if a client's attorney is subsequently suspended or disbarred based upon relatively contemporaneous misconduct? Let's take a look at the opinion of the Ninth Circuit in United States v. Soto-Lopez, 475 Fed.Appx. 144 (9th Cir. 2012).

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Should Judges Participate in Plea Negotiations?: Comparing Judge Rakoff's Proposal to My Own

Today, the New York Times published an op-ed by JaneAnne Murray, a Practitioner in Residence at the University of Minnesota School of Law, entitled, "Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty." I can't say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it's the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).

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On Your Side?: Delaware Court Deems Report by Nationwide Expert Inadmissible in Car Accident Case

Delaware Rule of Evidence 702 provides that

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Sometimes, a court precludes an expert from testifying because he's not qualified to offer opinions on a matter. For instance, a court would not allow an attorney or even a dermatologist to offer opinion testimony about the cause of a victim's death. 

Other times, a court precludes an expert from testifying because anyone would be qualified to offer opinions about a matter. This is what happened in the recent case of Knott v. Covert, 2015 WL 196730 (Del.Supr. 2015).

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Time Sensitive: Court of Appeals of Ohio Affirms Admission of Excited Utterance in Domestic Violence Case

Similar to its federal counterpart, Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Typically, this "excited utterance" exception is satisfied through evidence that a specific period of time passed between the startling event/condition and the declarant's statement (e.g., the declarant called or sent a text message 5 minutes after seeing a shooting). But, as the recent opinion of the Court of Appeals of Ohio, Eighth District, noted in its recent opinion in Cleveland v. Amoroso, 2015 WL 178418 (Ohio App. 8th 2015), circumstantial evidence of the passage of time often suffices.

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The Serial Podcast, One Last Thing: Reassessing Adnan's Shot at a New Trial Based on Asia McClain

[See Updates Below]

I've posted 31 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. I said my last post would be my final post on the case until the court opinion granting Adnan a new trial. But then, I learned that Asia McClain signed an affidavit, in which she claimed that Kevin Urick (one of the prosecutors at Adnan's trials in 1999 and 2000) misled her into not testifying at Adnan's postconviction proceeding (and, by implication, mischaracterized what she said to him when he testified at the proceeding). This affidavit is mentioned in an article/interview today in The Blaze. It is also the basis for Adnan's Supplement to Application for Leave to Appeal the Denial of Post-Conviction Relief and Request for Remand (Download Supplement to Application for Leave to Appeal). This affidavit could potentially have a significant impact on Adnan's chances for relief at both the state and federal levels, so I thought I'd do one final post to update my prior post.

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Pass Interference: AZ Court Grants New Trial Based on Prosecutorial Interference w/Defense Witness Testimony Through No Testimony Clauses

The Compulsory Process Clause of the Sixth Amendment provides that

In all criminal prosecutions, the accused shall enjoy the right....to have compulsory process for obtaining witnesses in his favor....

So, let's say that the prosecution enters into plea agreements with two potential defense witnesses. Furthermore,

Both plea agreements included the following "special term": "Defendant agrees that he/she has no exculpatory information as to any codefendant(s)." Each agreement also provided that the defendant waived all double jeopardy and statute of limitations claims, so that "[i]f the defendant fail[ed] to comply with any of the provisions or conditions of th[e] plea agreement at any time before or after sentencing," the agreement would "become void," and the state would be "free to prosecute the defendant for all charges."

Would such provisions violate the defendant's right to compulsory process? In an opinion of first impression, the Court of Appeals of Arizona, Division 2, answered this question in the affirmative in State v. Sanchez-Equihua, 326 P.3d 321 (Ariz.App. Div. 2 2014).

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Battle Creek Battle: Court of Appeals of Michigan Reverses Murder Conviction Based on Prejudicial Gang Testimony by Expert

According to an article in the Battle Creek Enquirer,

A Battle Creek murder conviction, overturned last month, will be appealed.

Calhoun County Prosecutor David Gilbert said Friday his office is preparing an application to appeal the case of Kaleb Hampton to the Michigan Supreme Court.

Why was the conviction reversed? According to the article.

in a 16-page opinion in December a three-judge panel of the Michigan Court of Appeals agreed that testimony about gang membership and Hampton’s alleged membership tainted the jury and exceeded what was permissible.

After reading the opinion of the Court of Appeals, I think that the reversal of Hampton's conviction will stand.

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The Serial Podcast, Final Post: Why I'm Now Convinced That Adnan Will Get a New Trial

I've posted 30 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. This will be my final post about the case until the court opinion granting him a new trial. Yes, that's right. I'm now convinced that Adnan will be released from prison. Maybe not today, maybe not tomorrow, maybe not soon, but (possibly) for the rest of his life.

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The Serial Podcast: What I Think Adnan's Attorney Told Him About Asia & How it Could Lead to a New Trial

I've posted 29 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. One of the issues that Adnan raised in his Petition for Post-Conviction Relief was that his trial counsel, Cristina Gutierrez, was ineffective in failing to contact/call Asia McClain as an alibi witness. Asia wrote Adnan two letters indicating that she saw Adnan at the Woodlawn Library of January 13, 1999. According to Adnan, he gave these letters to Gutierrez but was later told by her that "they didn’t check out (Asia had the wrong date or something)." In this post, I will explain why I think that this is exactly what Adnan was told and how it could lead to him getting a new trial.

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Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

From the Institute for Law teaching:

Engaging the Entire Class:
Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning

Register and pay online
(through UCLA website)

"Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" is a one-day conference being presented by the UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) in Los Angeles, California on February 28, 2015.

Conference Structure

The conference will include an opening and closing led by ILTL Co-Directors and Consultants, and five workshop sessions. Each workshop session will be presented by a teacher featured in What the Best Law Teachers Do.

  
 

Workshop presenters include:

• Patti Alleva, University of North Dakota
• Steven Friedland, Elon University
• Steven K. Homer, University of New Mexico
• Nancy Levit, University of Missouri-Kansas City
• Hiroshi Motomura, UCLA

By the end of the conference, participants will have concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions.

Who Should Attend

This conference is for all law faculty (full-time and adjunct) who want to learn about enhancing participation and inclusion in law school.

Conference Schedule

All Sessions will take place at the UCLA School of Law on Saturday, February 28, 2015.

• 8:00-8:40 a.m.: Registration and Continental Breakfast
• 8:40-9:00 a.m.: Welcome and Opening
• 9:00-10:00 a.m.: Workshop 1
• 10:00-10:20 a.m.: Break
• 10:20-11:20 a.m.: Workshop 2
• 11:20-11:40 a.m.: Break
• 11:40 a.m.-12:40 p.m.: Workshop 3
• 12:40-1:30 p.m.: Lunch
• 1:30-2:30 p.m.: Workshop 4
• 2:30-2:50 p.m.: Break
• 2:50-3:50 p.m.: Workshop 5
• 3:50-4:10 p.m.: Break
• 4:10-4:30 p.m.: Closing
• 4:30 p.m.: Adjourn

Registration Fee

Through February 12, 2015

• $250 - General Attendance
• $100 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
• $0 - UCLA Law full/part-time faculty (registration required)

After February 12, 2015

• Registration is on-site only
• $300 - General Attendance
• $300 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
• $0 - UCLA Law full/part-time faculty (registration required)

Registration fee includes:

• all materials, and
• breakfast, lunch, and snacks.

Location

Conference activities will be held at UCLA School of Law, 385 Charles E. Young Drive East, 1242 Law Building, Los Angeles, California 90095 (Directions and Maps).

Transportation

Participants are responsible for their own travel arrangements to the conference.

Lodging

A block of rooms has been reserved until January 25, 2015 for the nights of February 27 and February 28 at:

• UCLA Guest House
  330 Charles E. Young Dr. East
  Los Angeles, CA 90095
  $177.00: queen bed
  $182.00: queen bed with kitchenette
  $182.00: queen bed with twin bed

Make reservations by calling the hotel directly at (310) 825-2923 and mentioning that you are participating in the UCLA School of Law's "Institute for Law Teaching and Learning Conference at UCLA".

Please note: UCLA Guest House offers complimentary continental breakfast each morning but is not a full-food service hotel - meaning that they do not provide the service of ordering food via room service, and there is not a lobby restaurant. There are, however, many restaurants in Westwood Village, which is less than a 15 minute walk from the hotel. Also: On-site parking at the Guest House is free, but limited, on a first-come, first-served basis. If the hotel parking lot is full, the Guest House sells parking passes for the closest UCLA parking structure number 3.

Register and pay online
(through UCLA website)

Dropped Call: IL Court Finds Brady Violation Based on Failure to Disclose Key Evidence About Cell Phone

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held the the government violates the Due Process Clause by failing to turn over material exculpatory evidence to the defendant in a timely fashion. The Court defined "material exculpatory evidence" as evidence that creates a reasonable probability of a different outcome at trial. Importantly, the Court held that there is a Brady violation even if the failure to timely disclose this evidence was not done in bad faith. It was this last point that allowed an Illinois court to reverse a man's convictions for possessing between 2,000 and 5,000 grams of marijuana.

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Go Directly to Jail: George Zimmerman & Florida's Special Domestic Violence Arrest Law

On Friday the infamous George Zimmerman was arrested after allegedly throwing a bottle of wine at his girlfriend. Did he need to be arrested? Approximately 21 states and the District of Columbia have mandatory arrest policies in cases where there is probable cause or reasonable suspicion of certain types of domestic violence. In any of these jurisdictions, the responding officers likely would have needed to arrest Zimmerman. Florida, however, does not have a mandatory arrest policy, but it does have a special arrest policy in domestic violence cases. Section 901.15(7) of the Florida Statutes provides that

A law enforcement officer may arrest a person without a warrant when...[t]here is probable cause to believe that the person has committed an act of domestic violence, as defined in s. 741.28, or dating violence, as provided in s. 784.046. The decision to arrest shall not require consent of the victim or consideration of the relationship of the parties. It is the public policy of this state to strongly discourage arrest and charges of both parties for domestic violence or dating violence on each other and to encourage training of law enforcement and prosecutors in these areas. A law enforcement officer who acts in good faith and exercises due care in making an arrest under this subsection, under s. 741.31(4) or s. 784.047, or pursuant to a foreign order of protection accorded full faith and credit pursuant to s. 741.315, is immune from civil liability that otherwise might result by reason of his or her action.

In other words, in cases in which there is probable cause of domestic or dating violence, police officers  (even without an arrest warrant) may arrest a suspect regardless of whether the victim consents to the arrest and regardless of the relationship between the parties (e.g., dating vs. married). Furthermore, a police officer arresting a suspect in good faith in such a case is immunized from a civil lawsuit for wrongful arrest or some related tort. I find it interesting that Section 901.15(7) discourages the arrest of both of the parties to the domestic/dating violence. I assume that this discouragement is in place so that a victim is not deterred from contacting police based upon fear that she herself might be arrested.

-CM

Do Ask, Don't Tell: Significant Change Made to Military's Rape Shield Rule

Military Rule of Evidence 412, the military's rape shield rule, reads as follows:

Rule 412. Nonconsensual sexual offenses; relevance of victim’s behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in sections (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions. In a proceeding under this chapter, the following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and III-15

(3) evidence the exclusion of which would adversely affect the integrity or fairness of the proceeding.

So, let's say that a military judge deems evidence of a serviceperson's sexual history or predisposition admissible under this rape shield rule. What can the serviceperson do? 

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The Serial Podcast: The Possible Legal Implications of Kevin Urick's Interview for Adnan

I've posted 28 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. Yesterday, Kevin Urick, one of the prosecutors at Adnan's trial, gave an Interview to The Intercept. For purposes of this post, here is the relevant portion of that interview:

[Kevin Urick]: I think the judge in the post-conviction trial does a very good job of pointing out that in the letters to Syed, she is very vague and indifferent about what she’s doing. The difficulty comes from Syed. In all his statements about his whereabouts the day of the case he says that he was at the school from 2:15pm to 3:30pm. He never once, in any statement, at any time, made any reference about being in the public library. His defense was that he was at the school from 2:30 to 3:30. So [Asia McClain’s] reporting seeing him at the pubic library contradicts what he says he was doing. The letters were also sent in March of 2000, two months after Syed was charged.  

Asia contacted me before the post-conviction hearing, she got my number and called me and expressed to me a great deal of concern about whether or not she would have to testify at the post-conviction hearing. She told me she was under a lot of pressure from Adnan’s family and to get them off her back she wrote him a couple letters. The implication was she was trying to appease them and she didn’t want to have to stick by it at that time. And I testified to that when I appeared in the post-conviction hearing.

My takeaway? If Urick's testimony at the post-conviction hearing was similar to this statement in his interview, Adnan has a great shot at a new trial.

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Do Not Assume: Court of Appeals of North Carolina Upholds DNA Testing of Discarded Cigarette Butt

On March 5, 2010, a victim was raped in Raleigh, North Carolina. Jason Williford soon became a suspect.

On 15 April 2010, RPD Officer Gary L. Davis...parked his unmarked vehicle in a parking lot directly adjacent to defendant’s multi-unit apartment building while defendant was shopping at a nearby grocery store. When defendant returned, Officer Davis observed defendant smoking a cigarette as he exited his vehicle. Defendant then finished the cigarette and dropped the butt onto the ground in the parking lot. Shortly thereafter, RPD Officer Paul Dorsey...entered the parking lot. Officer Dorsey approached defendant and spoke to him in order to distract him while Officer Davis retrieved the cigarette butt. After securing the butt, the officers left the apartment building.

Subsequent DNA testing revealed that defendant’s DNA was a match for the DNA collected from the rape kit....

Was this proper? According to yesterday's opinion by the Court of Appeals of North Carolina in State v. Williford, the answer is "yes."

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The Serial Podcast, Transcripts: The Judge's Denial of a Motion for Jurors to Visit the Best Buy

I've posted 27 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. We are now getting portions of the transcripts from Adnan's second trial, the trial that resulted in his conviction. Here's the transcript for day one, and here's the transcript from day two. The day two transcript is interesting for a number of reasons. One of these reasons is that it reveals how easily the State's case could have been destroyed.

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