EvidenceProf Blog

Undiagnosed: Court of Appeals of Indiana Finds Statements to Doctor Inadmissible Under Medical Hearsay Exception

Yesterday, I was teaching my students Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

In response, a student wanted confirmation that the proponent of such a statement had to satisfy both subsections (A) AND (B). I responded that both subsections did in fact need to be satisfied, prompting a discussion of cases in which subsection (B) but not subsection (A) could be satisfied. I will provide an example of such a case in this post. I then, however, tried to think of a case in which subsection (A) but not subsection (B) could be satisfied. In other words, could there ever be a case in which a patient makes a statement that is reasonably pertinent to diagnosis or treatment but that is not describing medical history, symptoms, sensations, or their inception or cause? I don't know.

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Woodlawn Only Had 8 Full School Days From December 24, 1998-January 24, 1999

Krista had provided me with the following Woodlawn schedule from late 1998-early 1999. I've filled in a few facts that we know, such as Woodlawn's wrestling match against Randallstown on January 5, 1999. As we learn more facts, we might be able to flesh out this schedule even more. This schedule is interesting because we have several people who have memories of seeing Hae Min Lee and/or Adnan Syed on certain days, and this schedule shows the days when these encounters could (and couldn't) have occurred:

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The Possible Significance of the Missing Ignition Collar in Hae Min Lee's Nissan Sentra

From the list of the list of Photo Exhibits of State in the trial of Adnan Syed for murdering Hae Min Lee:

As you can see, the second photograph described on this page is a "Close-up of Sentra ignition - ***ignition collar missing." So, what is an ignition collar, and what significance could the fact that it was missing have with regard to the death of Hae Min Lee?

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Sequestered in Memphis: Can Trial Counsel Be Excluded From the Courtroom in Ineffective Assistance Cases?

Similar to its federal counterpart, Tennessee Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

So, pursuant to this rule, may a criminal defendant move to exclude his trial attorney from the courtroom when he has brought a claim alleging the he received the ineffective assistance of counsel? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Tennessee in Page v. McAllister, 2015 WL 1298652 (E.D.Tenn. 2015).

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Federal Lawsuit Includes Claims Against Baltimore Criminalist for Mischaracterizing Gunshot Residue Evidence

On Monday, Sabein Burgess filed a lawsuit in the United States District Court for the District of Maryland against several defendants, including Daniel Van Gelder. Van Gelder, you might recall, is the Criminalist who performed a fracture analysis of the windshield wiper lever from the Nissan Sentra belonging to Hae Min Lee. In 2014, Burgess had his 1995 conviction for murdering Michelle Dyson reversed based upon a sworn affidavit by Charles Dorsey, who admitted to shooting Dyson. But, if Dorsey killed Dyson, how was Burgess convicted? 

According to Burgess, he came home to find Dyson shot and cradled her body. At trial, Van Gelder testified that Burgess's hands were swabbed for gunshot residue and that "'[e]ither [Burgess] fired the gun or his hand was right close to the gun.'" Van Gelder "dismissed defense suggestions that the residue on Burgess's hands had transferred from Dyson as he cradled her."

Burgess's lawsuit contends that there were two serious problems with this testimony.

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Ontario Court of Justice Extends Spousal Privilege to Common Law Partnerships

Back in 2013, I wrote about a Kentucky case in which a woman sought to invoke Kentucky's spousal privileges because she was in a same-sex civil union. As support for her claim, the woman cited a Vermont case reaching such a conclusion, but the court rejected her argument, concluding that, "at a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married." 

Conversely, late last month, the Ontario Court of Justice, reached the opposite conclusion in R. v. Lomond.

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Some Quick Thoughts on Adnan Syed's Brief of Appellant

Today, Adnan Syed filed his Brief of Appellant to the Court of Special Appeals of Maryland, seeking a new trial based upon the claim that he received the ineffective assistance of counsel (IAC). When I started writing about this case, the only live IAC claim was Adnan's claim that his trial counsel was ineffective based on failing to ask the State about a possible plea bargain despite his repeated requests.  At the time, I gave an interview to vox.com in which I noted that Adnan was almost certain to be unsuccessful on this claim; I then followed up that interview with a blog post in which I went into more detail regarding why I thought this IAC claim would be unsuccessful. Quite simply, the law was not on Adnan's side.

But then, in January, Asia McClain came forward with a new affidavit in which she stated that she stood by her claim that she saw Adnan in the library on January 13, 1999 and that she was dissuaded from testifying at Adnan's PCR hearing by one of the prosecutors at Adnan's initial trial(s). This led to Adnan filing a Supplement to his application for leave to appeal and the resuscitation of Adnan's claim that his trial counsel was ineffective based on her failure to contact Asia McClain as a potential alibi witness. With this claim revived, I now reached the conclusion that Adnan's appeal would be successful. Quite simply, this time, the law was on Adnan's side.

In particular, there was a Court of Appeals of Maryland case, In re Parris W., 770 A.2d 202 (Md. 2001), in which Maryland's highest court found that the constructive failure of an attorney to call alibi witnesses constituted the ineffective assistance of counsel. Moreover, the court in Parris W. cited several cases from across the country, all of which stood for the proposition that failure to contact an alibi witness constituted the ineffective assistance of counsel. Many of these cases are cited in Adnan's appellate brief, including Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), a case involving the same courts that handled Adnan's trial and appeal.

Some further research led me to find 50 cases from around the country in which courts deemed the failure to contact or investigate a potential alibi witness to be unreasonable or potentially unreasonable under circumstances similar to the circumstances in Adnan's case. Conversely, I found no cases in which the opposite conclusion was reached. I am now up to 70 such cases, which are listed below the fold. It will be interesting to see if the State is able to find any cases reaching the opposite conclusion when it files its own brief next month.

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Woodlawn's 1998/1999 Schedule & Its Bearing on the Statements & Testimony by Debbie

Courtesy of Krista, here is the Woodlawn High School schedule from 1998-1999:

According to Krista, this was the schedule for every student at Woodlawn, and the afternoon announcements were either right before or right after the final bell at 2:15 P.M. So, what does this schedule tell us about the statements and testimony of Debbie?

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Taking Shorthand: Court of Appeals of North Carolina Finds No Problem With Lay Opinion Testimony in Rape Trial

Similar to its federal counterpart, North Carolina Rule of Evidence 701 provides that

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

That said, North Carolina courts "have long recognized that Rule 701 does not render 'shorthand statement[s] of fact' inadmissible." So, what exactly is a shorthand statement of fact? Let's take a look at the recent opinion of the Court of Appeals of North Carolina in State v. Pace, 2015 WL 1198474 (N.C.App. 2015).

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Krista Comments on Adnan Asking Hae Min Lee For a Ride on January 13, 1999

One of the most objective figures with a connection to the death of Hae Min Lee is Krista, a friend to both Lee and Adnan Syed, who was convicted of Lee's murder in 2000. Krista gave a statement to detectives on March 1, 1999, the day after Adnan was arrested. Later, she testified at Adnan's first and second trials. Finally, a snippet of Sarah Koenig's interview with her was played in the second episode of the Serial Podcast. As would be the case for anyone in any of these types of circumstances, Krista didn't have complete control over how her thoughts were communicated or contextualized. Given her objectivity and importance to trying to understand the horrible tragedy that occurred on January 13, 1999, I thought it made sense to provide a forum for Krista to be able to fully and fairly explain her position about what she remembers from that day. What follows has been approved by Krista herself:

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The Areas of My Expertise: North Carolina Court Precludes Expert Testimony in Jonathan Broyhill Trial

According to ABC 11,

Judge Paul C. Ridgeway ruled Tuesday that the defense cannot call a prison psychiatrist to testify in the Jonathan Broyhill trial.

Broyhill is charged with first-degree murder in the death of Democratic Party strategist Jamie Hahn and attempted murder for attacking her husband Nation when he intervened in April 2013.

The defense wanted to call the psychiatrist as a "fact witness" to testify about the medications Broyhill takes and the reason, but the prosecution objected - saying it was a ploy to call an expert witness to talk about Broyhill's mental state.

Under the North Carolina rules of evidence, both sides must announce if they plan to call expert witnesses before a trial starts.

So, what are the relevant rules, and what was the defense trying to do?

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Krista's Sketch of the Woodlawn Campus & Commentary About Various Locations On It

Yesterday, I posted an entry which included relevant portions of Becky's police statement and testimony from the trial of Adnan Syed for murdering Hae Min Lee. As I noted in that post, if you believe some combination of Becky's statement and testimony, you believe that, at about 2:20 P.M. on January 13, 1999, when Becky was walking toward the guidance counselor's office, (1) Adnan and Lee were walking in opposite directions when Lee told Adnan that she couldn't give him a ride because she had "something else to do"/"somewhere" she had to go; and (2) Lee then proceeded to the door that led to where her car was parked.* So, could this explanation of events be consistent with Lee proceeding to her Sentra and Adnan proceeding to the library, where he might have run into Asia McClain? Here is a map of the Woodlawn campus drawn by Krista, a friend of both Adnan and Lee (Krista's Disclaimer: This is a rough sketch not drawn to scale. Also, the top of the sketch is south while the bottom of the sketch is north):

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The Bizarre Myth of the Inadmissibility of the Durst Confession

The arrest of Robert Durst for killing Susan Berman and the near simultaneous airing of his confession-like musings on the finale of HBO’s “The Jinx” have set the blogosphere abuzz about the potential inadmissibility of the confession. 

To repair some of the damage to the good name of Evidence law, I thought I would do a quick (citation free) post highlighting the near certain admissibility of the confession.

(1) Hearsay

People suggesting that the confession is somehow barred by the hearsay rules are advertising that they apparently never took an Evidence class or litigated a case.  It is a statement of a party, and would be offered by the opposing party, so no hearsay problem.  This is a terrible argument for excluding the confession, but a good way to smoke out weak legal analysts.  Next.

(2) Authentication

The recording would need to be authenticated.  That’s at least an objection the defense can make with a straight face.  The basic idea is that the recording is not relevant if it is not, in fact, what it purports to be:  i.e., a recording of Robert Durst talking to himself in the bathroom after the interview.

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The Real Article: 4th Circuit Allows Lay Authentication of Letter in Latin Kings Trial

Federal Rule of Evidence 901(a) states that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Furthermore, Federal Rule of Evidence 901(b) provides illustrations of particular ways in which a party can satisfy this authentication requirement; specifically, Federal Rule of Evidence 901(b)(2) states that the authentication requirement can be satisfied through

A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

Importantly, Rule 901(b)(2) allows for non-expert authentication, as was the case in United States v. Cornell, 2015 WL 1137153 (4th Cir. 2015).

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Reassessing Hae Min Lee's Timeline on January 13, 1999

Last week, I posted an entry about the murder window for the death of Hae Min Lee based upon the evidence that the prosecution presented at the trial of Adnan Syed for murdering her. Recent revelations have now led me to reconsider the actual timeline for January 13, 1999, the day that Lee disappeared. After the Serial Podcast aired, most people probably believed that Lee did or was planning to do the following after school on January 13th:

1. At about 2:20 P.M., Lee told Adnan in front of Becky that she couldn't give him a ride because she had "something else to do."

2. Lee talked with Inez Butler-Hendricks at the concession stand sometime between 2:15 and 2:25 P.M.*

3. Lee talked with Summer in the gym area for at least 10 minutes starting between 2:30 and 2:45 P.M. (so, ending between 2:40 and 2:55 P.M. or later).

4. Lee possibly talked with Debbie at around 3:00/sometime between 2:45 and 3:15.

5. Lee was supposed to pick up her cousin at 3:15ish and then drop her off.

6. Lee planned to drop off a note to her new boyfriend Don and possibly talk with him ("Sorry I couldn't stay. I have to go to a wrestling match at Randallstown High.").

7. Lee planned to go to the Randallstown wrestling match (and possibly planned to get back to Woodlawn to catch the bus to the wrestling match). This could have been at 5:00 P.M. or earlier or later.

8. Lee planned to work at LensCrafters from 6:00-10:00 P.M.

9. Lee planned to see Don after her work shift ended.

Now, after recent revelations, we have reason to believe that Woodlawn High School had no wrestling match on January 13, 1999 and that Woodlawn's wrestling match at Randallstown was on January 5, 1999. That leaves us with the following things that Lee likely did or was planning to do after school on January 13, 1999:

1. At about 2:20 P.M., Lee told Adnan in front of Becky that she couldn't give him a ride because she had "something else to do" AND/OR told Becky that she had to leave because "she had to be somewhere after school."**

2. Lee was supposed to pick up her cousin at 3:15ish and then drop her off.

3. Lee planned to work at LensCrafters from 6:00-10:00 P.M.

4. Lee planned to see Don after her work shift ended.

So, how did I trim the original timeline, and what does this all mean?

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The Autopsy Posts: It's Exceedingly Unlikely the Stains on the T-Shirt in the Sentra Were From a Pulmonary Edema

 

From Prosecutor Kathleen Murphy's Closing Argument (pages 51-52)

This is my eleventh post about autopsies following my first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth posts. There were ostensibly three pieces of evidence that Hae Min Lee was attacked in her Nissan Sentra. The first piece of evidence was the "broken" windshield wiper or turn signal lever, which I will again address in my post about conclusion #4. The second piece of evidence was used to be Hae's note to Don about having to attend the Randallstown wrestling match, which was found in the trunk of her Sentra; in the absence of evidence to the contrary, however, the note has now been debunked* as a note written on January 13, 1999, the day of Hae's disappearance, making it irrelevant for this purpose..

That leaves the third piece of evidence: the bloody t-shirt.

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"The Right to Remain Armed"

For those interested in the Second and Fourth Amendments, my latest article, The Right to Remain Armed, is now available for (free) download on SSRN at this link.

Here is the abstract:

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could radically transform American policing. Evidence of handgun possession – whether from a tip or observation – is increasingly an inadequate justification for a Fourth Amendment stop; officers will struggle to articulate legal grounds for temporarily disarming citizens during face-to-face encounters; and the promise of gun detecting technology as an alternative to invasive investigative techniques, such as pretextual arrests and frisks, may be squelched. Whether observers view these implications as beneficial, disastrous or something in between, one thing is clear: courts, policymakers and academics must begin to address the dramatic Fourth Amendment implications of an expanding Second Amendment “right to remain armed.”

The Autopsy Posts: It's Exceedingly Unlikely Hae Min Lee's Hemorrhages Were Caused By Punches Thrown in Her Sentra

I wonder if there was any investigation done to find a weapon used to hit her with? You would think the defense attorney would have hired a P.I. or a forensic expert.

The above was the very first response I got when I started soliciting expert opinions about the lividity evidence in the death of Hae Min Lee. The question was based upon the autopsy report for Lee, which indicated that she had a right occipital subgaleal hemorrhage as well as a right temporalis muscle hemorrhage. The experts I've heard from are all in agreement that such hemorrhaging likely was not the result of punches and almost certainly not the result of punches thrown from inside the cozy confines of the 1998 Nissan Sentra. This has allowed me to draw my third conclusion:

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.

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And No Religion Too?: 11th Circuit Find No Error in Testimony About Witness's Job as Chaplain

Federal Rule of Evidence 610 provides that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Under Rule 610, a party can't use evidence of a witness's religion to bolster (e.g., "he's a good Christian") or impeach (e.g., "he's a lying atheist) a witness's credibility. In its recent opinion in United States v. Davis, 2015 WL 925544 (11th Cir. 2015), the Eleventh Circuit addressed the following question: "[D]oes Federal Rule of Evidence 610, which excludes evidence of a witness's "religious beliefs or opinions...to attack or support the witness's credibility,” bar evidence that a witness's job is city and police-department chaplain, even when neither side argues that this affects credibility?"

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My New Article: Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights

Today, I posted my new article, Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights, on SSRN. Here is the abstract:

Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission.

The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before pressed into an unfamiliar environment in which they face possible isolation and coercion. This article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is “imminent.” It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.

-CM