EvidenceProf Blog

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

Friday, February 27, 2015

The Autopsy Posts: There Were No "Broken Edges" on the Windshield Wiper Lever in Hae Min Lee's Sentra

This is my eighth post about autopsies following my firstsecondthirdfourthfifthsixth, and seventh posts. As with my last post, this post is more of a table setter for posts on conclusions 3-5. In particular, it is a detailed analysis of everything I know about the supposedly broken windshield wiper lever/selector switch in Hae Min Lee's 1998 Nissan Sentra. My conclusion? There was no broken windshield wiper lever or selector switch. But that's not merely my conclusion. It was the conclusion of Criminalist Daniel Van Gelder. You can read Van Gelder's entire report by clicking here: Download Windshield Wiper Analysis. Here's the relevant portion: 

Screen Shot 2015-02-26 at 9.29.23 PM

Continue reading

February 27, 2015 | Permalink | Comments (39) | TrackBack (0)

Thursday, February 26, 2015

Impeachable Offenses?: WDNY Deems Trespassing & Attempted Petit Larceny Convictions Inadmissible

Federal Rule of Evidence 609(a) provides that

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, when does a conviction qualify for admission under Rule 609(a)(2). Specifically, does a trespassing conviction meet the Rule 609(a)(2) standard? What about a conviction for attempted petit larceny? Let's take a look at the recent opinion of the United States District Court for the Western District of New York in United States v. Vickers, 2015 WL 751228 (W.D.N.Y. 2015).

Continue reading

February 26, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

The Autopsy Posts: The Prosecution Claimed (Conclusively) That Hae Was Strangled in the Passenger Seat

This is my seventh post about autopsies following my firstsecondthirdfourthfifth, and sixth posts. This post is simply a preview post for posts on conclusions 3-5. I am writing it because I realized that I was wrong about what the State argued about the strangulation of Hae Min Lee at trial. My assumption was that the State claimed Hae was in the driver's seat when Adnan Syed strangled her. That assumption was incorrect. Here is an excerpt from pages 50-51 of prosecutor Kathleen Murphy's closing argument at Adnan's second trial:

Screen Shot 2015-02-25 at 10.40.14 AM

 

Continue reading

February 25, 2015 | Permalink | Comments (15) | TrackBack (0)

Tuesday, February 24, 2015

The Autopsy Posts: Vascular Strangulation, Unconsciousness & the Unlikelihood that Hae Min Lee Spoke

Um [Adnan] told me he thought [Hae] was trying to say something while he was strangling her. Um he told me that she kicked like ah knocked off the ah windshield wiper thing in the car and that was it. Jay's first recorded interview 

While we're at the cliff, we're standing over looking a whole bunch of stuff at this cliff, you know. [Adnan] starts ah, telling me about how it was when he killed [Hae]. How ah, he said he ah, wrapped his hands around her and her throat and she ah, started kicking him, and he said he looked up to make sure nobody was looking in the car at him.  And ah, he said she, he was worried about her scratching him, getting her, his skin underneath her fingernails. And that ah, she was trying to say something. He said that he thinks that she was trying to say that she was sorry, but that's what she deserved and ah, that she had broken his heart. Jay's second recorded interview

This is my sixth post about autopsies following my firstsecondthirdfourth, and fifth post posts. Once again I will be looking at the autopsy report for Hae Min Lee. As I've previously noted, "based upon information I have now received from an assistant medical examiner and a pathology resident who has completed extensive rotations in forensics," the conclusion can be drawn that

2. It is highly unlikely that Lee spoke or even came close to speech if she were being fatally strangled.

So, how can this conclusion be drawn?

Continue reading

February 24, 2015 | Permalink | Comments (5) | TrackBack (0)

Monday, February 23, 2015

Return to Sender?: Court of Appeals of Indiana Allows Authentication of E-mails, Texts Though Circumstantial Evidence

Last fall, my student (Charles White) and I published, The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, in the inaugural edition of the Temple Law Review Online. The essay argued that the authentication bar should be raised for electronic evidence based upon the concerns regarding reliability and fabrication that surround it. Exhibit A for the essay could be the recent opinion of the Court of Appeals of Indiana in Harsley v. State, 2015 WL 691701 (Ind.App. 2015).

Continue reading

February 23, 2015 | Permalink | Comments (2) | TrackBack (0)

Friday, February 20, 2015

Rigor Mortis & What it Might be Able to Tell Us About When a Body Was Moved After Death

In response to my posts about livor mortis, I've gotten a good number of questions about rigor mortis, the stiffening of the body after death because of a loss of Adenosine Triphosphate (ATP) from the body's muscles.

ATP
Adenosine Triphosphate

Specifically, the question I have been asked is whether the positioning of a body can give an indication of how much time elapsed after death before the body was put into that position. In this post, I will provide a basic introduction to rigor mortis and discuss how it can be relevant for this very purpose.

Continue reading

February 20, 2015 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 19, 2015

Fatti Maschil, Parole Femine: Will Maryland Adopt Version of Sexual Character Evidence Rule?

Federal Rule of Evidence 404(b) states in pertinent part that

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

That said, Federal Rules of Evidence 413-415, passed in 1994, allow for the admission of prior acts of sexual assault and child molestation to be admitted against a civil or criminal defendant in a case involving similar behavior. After a constitutional amendment was passed in Missouri last year, 12 states have adopted state counterparts to these federal rules. Will Maryland soon make it a baker's dozen?

Continue reading

February 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

The Autopsy Posts: Blunt Force Injuries to the Head and Unconsciousness

This is my fifth post about autopsies following my firstsecondthird, and fourth posts. Once again I will be looking at the autopsy report for Hae Min Lee. As I noted on Monday, the autopsy report stated that "[t]here were focal and poorly delineated right occipital subgaleal and right temporalis muscle hemorrhage." As I also noted, "based upon information I have now received from an assistant medical examiner and a pathology resident who has completed extensive rotations in forensics," the conclusion can be drawn that

1. Given the severity of the blunt force injuries, it is likely that Lee was at least stunned, and the injuries are certainly consistent with Lee being knocked unconscious.

So, how can this conclusion be drawn?

Continue reading

February 18, 2015 | Permalink | Comments (5) | TrackBack (0)

Tuesday, February 17, 2015

Which Lie Did I Tell?: Should Polygraph Tests Replace Preliminary Hearings?

It is well established that, except in New Mexico, polygraph evidence is inadmissible to prove the guilt (or innocence) of a criminal defendant. That said, polygraphs are starting to play a larger role in the American criminal justice system. Last summer, I posted an entry about the Supreme Court of South Carolina upholding a waiver in a plea agreement that stated that the

petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then "the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including...disposition of charges through plea or trial...and impeachment."...Further, section 7 provide[d] in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that "the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral...."

Late last month, a polygraph test almost played a similarly prominent role in the prosecution of a Pennsylvania man.

Continue reading

February 17, 2015 | Permalink | Comments (2) | TrackBack (0)

Monday, February 16, 2015

The Autopsy Posts: An Introductory Post Concerning Blunt Force Injuries

This is my fourth post about autopsies following my firstsecond, and third posts. Once again I will be looking at the autopsy report for Hae Min Lee. In my first and second posts, I noted how certain findings in the autopsy were consistent with the Assistant Medical Examiner's conclusion that the cause of Lee's death was strangulation. In this post, however, I want to focus on other injuries suffered by Lee. According to the autopsy report,

"Blunt force injuries to the right back and right side of the head were also present." 

Specifically,

"There were focal and poorly delineated right occipital subgaleal and right temporalis muscle hemorrhage."

The Assistant Medical Examiner testified that these injuries were caused while Lee was still alive. According to the key witness for the prosecution, Adnan Syed strangled Lee while she was in the driver's seat of her 1998 Nissan Sentra, with Lee kicking at Syed and trying to say something like "I'm sorry" while she was being strangled. That same witness made no mention of Adnan otherwise striking Lee or using a weapon.

Now, based upon information I have now received from an assistant medical examiner and a pathology resident who has completed extensive rotations in forensics, five conclusions can be drawn from the available evidence:

1. Given the severity of the blunt force injuries, it is likely that Lee was at least stunned, and the injuries are certainly consistent with Lee being knocked unconscious.

2. It is highly unlikely that Lee spoke or even came close to speech if she were being fatally strangled.

3. It’s possible that the blunt force injuries could have been caused by punches, but it is likelier that they were caused by a weapon or Lee's head striking some fixed object.

4. If Lee were in the driver’s seat of the Sentra while being strangled, it is highly unlikely that she could have kicked at her assailant.

5. It is highly unlikely that the blunt force injuries to Lee's head could have been caused by an attack on her while she was in the driver’s seat of her Sentra.

In today's post, I will lay out the basics of the blunt force injuries uncovered in the autopsy. In successive posts, I will then explain conclusions 1-5.

Continue reading

February 16, 2015 | Permalink | Comments (15) | TrackBack (0)

Friday, February 13, 2015

Fixed Lividity/Livor Mortis: A Medical Examiner Weighs in

This is my sixth in a series of post about livor mortis/fixed lividity (first postsecond postthird postfourth postfifth post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death (e.g., in the trunk of a Sentra) and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death (e.g., a right side burial in Leakin Park) and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the trunk of the Sentra was probably about 52 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side, which was consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side but inconsistent with the body's fixed frontal lividity.

In my last post, I shared information that I received from (1) pathology residents who have completed extensive rotations in forensics; and (2) a former forensic medical investigator. In this post, I will share information I received from an assistant medical examiner. This information is largely consistent with the information I've already posted. On Monday, I will do a follow-up post that might even more fundamentally change the way that everyone is looking at this case.

Continue reading

February 13, 2015 | Permalink | Comments (5) | TrackBack (0)

Thursday, February 12, 2015

The Autopsy Posts: Acid Phosphatase as Evidence of Recent Sexual Activity or Decomposition

This is my third post about autopsies following my first and second posts. Once again I will be looking at the autopsy report for Hae Min Lee. In relevant part, it states:

MICROSCOPIC EXAMINATION

ANAL, ORAL AND VAGINAL SWABS: Negative for spermatozoa....

VAGINAL SWAB: Acid Phosphatase 136 U/L [units per liter]

ORAL SWAB: Acid Phosphatase 107 U/L

ANAL SWAB: Acid Phosphatase 22 U/L

According to many sites,

Acid phosphatase is an enzyme secreted by the prostate gland that is present in large amounts in seminal fluid. It is not unique to the prostate and can be found in other biological fluids including vaginal secretions. It is therefore considered a presumptive chemical test for the presence of semen and semen must be confirmed by other means (sperm detection or PSA).

In other words, when a victim's body has certain units per liter of acid phosphatase, it can be indicative of recent sexual activity because the enzyme is present in large amounts in seminal fluid. Therefore, one might speculate that Lee had engaged in recent sexual activity before her death. That said, the anal, oral, and vaginal swabs of her body were negative for spermatozoa. This takes us to the alternate explanation for the presence of elevated levels of acid phosphatase and why we can rule the enzyme out as evidence of recent sexual activity.

Continue reading

February 12, 2015 | Permalink | Comments (3) | TrackBack (0)

Wednesday, February 11, 2015

Signed, Sealed, Delivered: The Different Prison Mail Policies of Different States

As a result of yesterday's post, I started doing some research into the prison mail reading policies in various states. If you followed the Casey Anthony trial, you might recall that there was a big data dump (500+ pages) of all of the letters that Anthony sent and received while in prison. Anthony, of course, was in Florida, and the Florida Department of Corrections website states that

All routine mail sent to an inmate is opened, examined, and read by designated department staff.

In yesterday's post, I was discussing Maryland, and Maryland actually has a policy that is much more protective of an inmate's privacy. According to the Maryland Department of Corrections,

Incoming non-legal mail will be opened and inspected for contraband.

Incoming or outgoing mail will not be read or rejected unless there is probable cause to believe the contents are a threat to the order and security of the facility or that the mail is being used for illegal activity. The Director or designee may order the mail to be opened and inspected.

So, what are the prison mail policies in some other states?

Continue reading

February 11, 2015 | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 10, 2015

Undiscovered: The Broadening of the Defense's Discovery Obligations in Maryland

Discovery in a criminal case is the process by which the prosecution is forced to turn over certain evidence to the defense and vice versa. "In 2008, the rules governing discovery in Maryland were revised and the scope of discovery broadened." 8 Maryland Practice: DUI Handbook § 5:7 (2014 ed.). In particular, criminal defendants in Maryland are now required to disclose much more than they were required to disclose pre-2008.

Continue reading

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Monitoring Social Media: The New Face of Criminal Investigations

A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.

From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.

“After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.

In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.”

February 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

Fixed Lividity/Livor Mortis: The Experts Weigh in on a Side Burial in the 7:00 Hour

This is my fifth in a series of posts about livor mortis/fixed lividity (first postsecond postthird postfourth post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the trunk of the Sentra was probably about 52 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Yesterday, I posted information about the Assistant Medical Examiner who performed the autopsy on Lee, which I thought tended to show that she would have supported both of my claims. Today, I have information from (1) pathology residents who have completed extensive rotations in forensics; and (2) a former forensic medical investigator. I think that both sources of information tend to corroborate my claims.

Continue reading

February 6, 2015 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 5, 2015

Livor Mortis/Fixed Lividity: Why the ME Would Have Said a Side Burial of Hae in the 7:00 Hour Was Impossible

This is my fourth in a series of posts about livor mortis/fixed lividity (first postsecond postthird post). I've made two claims: (1) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

These claims have particular relevance for the case discussed in the Serial Podcast: the death of Hae Min Lee. The State's contention was that the 5'8" Lee was strangled by Adnan Syed, placed in the trunk of her 1998 Nissan Sentra for about five hours, and then buried in Leakin Park. The State's key witness said on at least one occasion that Lee was "pretzeled up" in the trunk (ostensibly on her side), which would seem to have to be the case because the rear passenger compartment of a 1998 Sentra was 48 inches wide. When Lee's body was discovered in Leakin Park weeks later, it was on its right side and had fixed frontal lividity, which was also consistent with the key witness's testimony on at least one occasion that Lee was buried on her right side.

Based on prior information I'd read and received, I already felt strongly about both of my claims. I also felt strongly that if Adnan's trial attorney had pressed the doctor who prepared the autopsy report for Lee on these two issues, she would have given responses that would have hugely helped the defense. But you never know. Well, now I do. Part of this is based upon a particular case from that doctor's past, which I will discuss today. Part of this is the responses I've gotten from people who know their forensic pathology, which I will discuss tomorrow.

Continue reading

February 5, 2015 | Permalink | Comments (18) | TrackBack (0)

Wednesday, February 4, 2015

The Autopsy Posts, Take 2: Focal Hemorrhaging of the Strap Muscles & Strangulation

This is my second post about autopsies following my first post yesterday. As with my first post, this post will deal with how a medical examiner determines that a victim died as the result of strangulation. Once again I will be looking at the autopsy report for Hae Min Lee. In relevant part, it states:

Dissection of the neck revealed multiple focal hemorrhages on the superior (proximal) segments of the strap muscles involving the sternohyoid and the sternothyroid muscles....

I. Strangulation

A. Hemorrhage at the superior segment of the neck strap muscles. 

So, how do these findings support a conclusion that the victim died as the result of strangulation?

Continue reading

February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

The Autopsy Posts: Manual Strangulation & Petechial Hemorrhaging in the Face/Eyes

Today, Rabia Chaudry released the autopsy report for Hae Min Lee, whose death was the subject of the Serial Podcast. Obviously, this is pretty gruesome/disturbing material, so read it at your own risk.

So, what does the autopsy tell us about Lee's death? What does any autopsy tell us about anyone's death? What is the history of the autopsy? This will be a first in a series of posts about autopsies in general and this specific autopsy. Let's start with one particular entry on Lee's autopsy report:

I. Strangulation....

E. Petechial hemorrhage of the lower left palpebral conjunctiva

So, what is a "[p]etechial hemorrhage of the lower left palpebral conjunctiva," and how did it tend to support a finding that Lee was strangled?

Continue reading

February 3, 2015 | Permalink | Comments (2) | TrackBack (0)

Monday, February 2, 2015

Second Lividity/Dual Lividity & Moving a Body During Partially Fixed Lividity

This is the third in a series of posts about livor mortis/fixed lividity (first postsecond post). Livor mortis is the settling of blood in the lower (dependent) portion of the body, and fixed lividity is the point at which the blood becomes permanently settled. In my second post, I made two claims: (1) it is unlikely that a body could be buried on its side about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity; and (2) it is unlikely that a body could be on its side for about five hours after death and exhibit solely anterior (frontal) lividity with no lateral (side) lividity.

After receiving some correspondence from experts, I now feel even better about my first claim. I noted in my prior posts that it usually takes a minimum of six to eight hours for lividity to become fixed and that it sometimes takes up to twelve hours or more. Factors that could lead to lividity becoming fixed earlier would be hotter temperatures and/or victims with certain pre-existing medical conditions. Absent either of those conditions, it would be extremely rare for lividity to become completely fixed in under six hours. In colder temperatures, fixed lividity in under six hours would be even less likely.

I haven't, however, been able to get anything in the way of corroboration (or contradiction) with regard to my second claim. I'm clear on one thing: If a body were on its side for about five hours after death before being put face down, there absolutely could be some lateral (side) lividity in addition to anterior (frontal) lividity. This is known as a few things: a "mixed" pattern of lividity, second lividity, or dual lividity. 

This post will serve two purposes. First, it's a call for information from any readers with expertise in forensic pathology or related fields. If you have such expertise, I would love to know how likely it is that there would be a "mixed" pattern of lividity in such a case, assuming that this can be quantified to some extent (e.g., very likely, likely, possible, not very likely, etc.). Second, it contains various pieces of information that I've found about moving a body when lividity has become partially fixed.

Continue reading

February 2, 2015 | Permalink | Comments (1) | TrackBack (0)