What Maryland's New "Fair Likelihood" Test Means for Adnan's Appeal?

In the reopened postconviction proceedings in the Adnan Syed case, Judge Welch is deciding whether there was ineffective assistance of counsel and/or a Brady violation. With an IAC claim, the judge needs to determine whether effective performance by defense counsel would have created the reasonable probability of a different outcome of a new outcome at trial. See, e.g., Denisyuk v. State, 30 A.3d 914 (Md. 2011). Similarly, with a Brady claim, the judge needs to determine whether proper disclosure of exculpatory evidence by the State would have created the reasonable probability of a different outcome at trial. So, what exactly is a "reasonable probability"? Interestingly enough, the Court of Appeals of Maryland just clarified this definition last week.

In Rowhouses, Inc. v. Smith, issued March 25, 2016, Maryland's highest court had to determine whether the trial court properly granted the defendant's motion for summary judgment in a case involving alleged illness based upon lead-based paint. In answering this question, the court had to decide whether the lead-based paint was a reasonably probable source of those illnesses.

Before getting to that question, the court tinkered with the definition of "reasonable probability." It began by citing to the explanation of the phrase in the Brady context:

In the context of an alleged Brady violation, and, specifically, whether evidence was material even if helpful and even if suppressed, in Adams v. State, 165 Md. App. 352, 435-36, 885 A.2d 833, 881-82 (2005), writing for the Court of Special Appeals, Judge Moylan explained that a reasonable probability is not synonymous with more likely than not and that more likely than not is the higher standard:

An obvious weakness of the term of art “reasonable probability” is that the unwary reader may readily confuse it with the informal and commonplace notion of “probability.” To the untutored ear, probability sounds like something that is more likely true than not. As we have analyzed at length, however,...“reasonable probability” implies no such thing....The Court speaks in terms of the familiar, and perhaps familiarly deceptive, formulation: whether there is a “reasonable probability” of a different outcome if the evidence withheld had been disclosed. The Court rightly cautions that the standard intended by these words does not require defendants to show that a different outcome would have been more likely than not with the suppressed evidence....[T]he continued use of the term “probability” raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding standard, “more likely than not.”

From this, the court was able to educe that a "reasonable probability" is a probability that is below 50.01%, i.e., "less than more likely than not, which is a higher standard to meet." The court then "further examine[d] the definition of 'reasonable probability.'"

-Black’s Law Dictionary (10th ed. 2014) defines “probability,” in pertinent part, as “[s]omething that is likely; what is likely[.]”

-Similarly, Merriam-Webster defines “probable” as “likely to be or become true[.]”

“Likely,” in turn, means “[a]pparently true...; probable” and “[s]howing a strong tendency; reasonably expected[.]”

“Reasonable,” on the other hand, means “[f]air, proper, or moderate under the circumstances[.]”

-Similarly, Merriam-Webster defines “reasonable” as “not extreme or excessive” and “moderate, fair[.]” (emphases added).

Combining these definitions, the court concluded

that a “reasonable probability” is a fair likelihood that something is true. In the context of lead-based paint cases, that means that the subject property is a reasonable probable source of a plaintiff’s lead exposure where there is a fair likelihood that the subject property contained lead-based paint and was a source of the lead exposure. 

So, if a "reasonable probability" is a "fair likelihood" that is less than 50.01%, what is it more than? According to the court,

[A] “reasonable probability” is more than a mere “possibility.”...Merriam-Webster defines “possibility” as “a chance that something might exist, happen, or be true[.]”...Thus, something that is possible is less probable than something that is reasonably probable; a possibility is a mere chance that something might be true, as opposed to a fair likelihood that something is true. Establishing a possibility requires a lower quantum of proof or evidence (the showing of a chance, not necessarily a fair likelihood) than establishing a reasonable probability. In that regard, a “reasonable probability” is a higher standard than a “possibility.”

Therefore, "reading these definitions together makes it evident that a reasonable probability is less than more likely than not, but more than a possibility." 

But what is a possibility? Interestingly, the Court of Appeals set the bar pretty low: "In the context of lead-based paint cases, any property in which a plaintiff has resided or visited could be a possible source of the plaintiff’s lead exposure." In other words, anything is possible unless it's impossible. But how much more does it take to prove a reasonable probability? We'll see.

-CM