Wednesday, December 2, 2015
I was taking another look at the alibi notice that Cristina Gutierrez filed for Adnan. Here is the introductory comment on that notice:
What's interesting is that this comment makes clear that this isn't solely an alibi notice; instead, it is also a notice of habit witnesses, which makes the failure of the defense team to contact most of these witnesses even less defensible.
Federal Rule of Evidence 406 provides that
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Maryland has a counterpart to this federal rule: Maryland Rule of Evidence 5-406. This Rule was used in a Maryland case I've cited before -- Ware v. State -- to establish the defendant's habit of carrying a gun, which the jury could use as circumstantial evidence that the defendant carried a gun on the day in question.
Federal Rule of Evidence 406 and state counterparts can also be used to establish that a defendant was likely at a particular location on a specific day based upon a habit of being at that location. See, e.g., Hooker v. State, 716 So.2d 1104, 1111 (Miss. 1998) (approving the use of habit evidence establishing the defendant's "habit of parking at a particular area beside the road late at night").
It seems clear, at a minimum, that Gutierrez intended to do the same with the track and Mosque witnesses listed in the alibi notice. It also seems clear that those witnesses could have been very helpful to the defense. For instance, when Will was interviewed by Sarah on Serial, he made it clear that there were consequences if you were either late or absent for track practice:
Sarah Koenig: And what would happen if you were really late, or you skipped or-- was there any consequences?
Will: Yeah, actually if you didn’t have a family emergency, you had to run extra. 400’s. Extra running the next day.
Now, of course, it was Ramadan on January 13th, so Adnan didn't have to run, but no one has ever said that Ramadan could be used as an excuse for showing up late to practice...or not showing up at all. As such, Will, even assuming that he weren't an alibi witness, could have been a valuable habit witness, especially given the fact that he was a sprinter who would have practiced with Adnan on a daily basis. Based upon the failures of the defense team, he couldn't be used as either.