EvidenceProf Blog

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

Friday, April 1, 2016

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.



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There is a reasonable probability I was not able to follow this blog. Lol

Posted by: Laura Johnson | Apr 1, 2016 1:25:58 PM

To me, this is the most interesting type of legal discourse. I am so glad this issue is being hashed out.

Probability does indeed have two definitions. The first, outlined above, is usually preceded with only the definite article "the" as in "The probability," where it can be synonymous with "near certainty."

Used in a sentence "When you are down 9-1 in the 9th inning, losing is the probability."

The second usage, which is usually preceded by a descriptive adjective (as in "decent probability," "low probability," or "high probability"). In this situation, the word itself simply denotes that you are referring to a statistical chance--the value of that statistical chance is defined ENTIRELY by the preceding qualifying adjective.

It seems clear then that "reasonable probability" falls into the latter category. Therefore, the word we need to be assessing (or rather, the judges who decide this stuff should be assessing) is the word "reasonable."

At this point it becomes tricky. There are many different definitions of the word "reasonable" based on context. I imagine you would use the definition most often used with either numbers or quantities. A "reasonable" amount of a quantity then must not be so small as to be negligible.

I don't, for example, have a reasonable amount of probability of winning the lottery for us to be talking about it. There isn't a reasonable likelihood that Bigfoot will come assault me in my home, at least not enough to warrant buying an anti-Bigfoot alarm system.

However, if I was told there's a 5% chance I have a specific type of cancer, then my doctor and I would certainly discuss whether I should get the expensive diagnostic test to find out. This is because 5% is a reasonable enough probability to warrant being sure-- given that the consequence on the table (having undiagnosed cancer) is so dire.

So does reasonable require assessing not just the % probability, but ALSO the potential negative consequence of getting it wrong? I think these are the two factors that should be included into whether
f(x) = reasonable?

At least, if I were the judges deciding this, that's where I would start.

Posted by: Paul | Apr 1, 2016 2:03:10 PM

I imagine Judge Welch thinking he is finished with his ruling, and then decisions such as this -- and others that you've commented on recently -- come out. Does he stop and rethink and revise? I wondering when we might ever get to done?

Posted by: streetwriter | Apr 1, 2016 3:17:15 PM

Are humans any good at assessing probability? Try this problem. You've got three closed doors, with a prize behind one. You pick a door, let's say door number one. Another door is then opened, let's say door number 2, with no prize. You can then either stay with your original pick, or switch to the other door (number 3 in this case). What should you do?

Posted by: carnotbrown | Apr 1, 2016 3:37:44 PM

A layman such as myself, sitting in as a juror would be heavily confused by the phrasing. That would not have bode well for Adnan and thus present a new set of issues with regard to misunderstanding the evidence. He'd look guilty all over again. Or...I still have no clue what you're talking about. Both are possible. I need a drink.

Posted by: Suzanne | Apr 1, 2016 4:18:47 PM

Remember Atticus Finch after his innocent, convicted client had been killed trying to escape? "We had a chance. We had a good chance." He meant reasonable probability -- not, it COULD happen (a possibility) or, it's IN THE BAG (likelihood).

I think that's what Adnan has: a good chance.

Posted by: kate willette | Apr 1, 2016 5:06:35 PM

@Suzanne: mere possibility is not sufficient, though, this issue requires a fair likelihood of being at least somewhere below 50.01% probable, but not as low a hurdle as possibility. I think the correct answer is 42.

Posted by: TerminalGrog | Apr 1, 2016 5:13:54 PM

I know that lots of people love the law. But I can't help but find it sickening that judges and legal scholars are spending hours and hours and pages of text parsing and slicing and dicing and analyzing the meanings of single words when the real world is never as cut and dry as the law would like to think it is.

It shouldn't matter what percentage of probability people today might assign to imaginary events that might have, but didn't, happen in the past, should it? Does it matter now that Gutierrez stipulated to include Hae's diary and all the cell evidence? I know that legal and procedurally it does, but it sure shouldn't. No self-respecting court of law should *ever* allow the type of evidence in that was allowed in at Adnan's trial. Why not?? Because we KNOW that's how innocent people get convicted. But they did let all that in. We know that they're lies and bad evidence now as most people did then. But it was all let in, so it's all good and fair, right?

And now the courts are all behaving as is the very fact that all that bad evidence, conjecture, and lies that were put on the record are all 100% accurate and reliable because a jury, 12 random people that might not be able to tie their own shoes, for all we know, listened to the lies and misleading evidence, stamped "Guilty!" on the file and went home.

Reading about and following the legal games that are keeping an innocent man in prison has been quite the education for me. I'm deeply grateful that I've never had any direct contact with law enforcement or our "judicial" system. I'm also stunned at how much or legal system misses the point and gets mired in minutia that really has no bearing on anything.

It shouldn't be as easy as it is to be convicted of a crime you never committed. And it really shouldn't be as difficult as it is to free someone that has been so convicted. The fact that there's zero credible evidence that Adnan is guilty just doesn't matter. All that matters now is "tried, convicted, done. Guilty, guilty, guilty." Only that's not true, is it? It's just easier that way. Easier for the judicial system to continue to pretend they're doing a good job.

Posted by: Eric Wolff | Apr 2, 2016 5:00:35 AM

I agree with Eric. Well said. I'm going to stop there before the page refreshes and I lose my comments again!

Posted by: Cathy my real name | Apr 2, 2016 1:56:07 PM

Eric-I agree with your conclusion, but not your reason for getting there. The problem isn't that the legal definitions cause bad results, the problem is that juries are awful at applying those rules through use of critical thinking.

The beyond a reasonable doubt standard is a good one. The reasonable probability of a different outcome test is a fair one. Now if the legal system would just start applying them correctly, we wouldn't have the atrocious system that we do.

Posted by: Paul | Apr 2, 2016 3:21:21 PM

Eric- Adnans recently reopened PCR hearing was done so with the legal provision that it was "in the interest of justice."

This legal term specifically is intended to be that back door for situations where the legal minutia is keeping an innocent man convicted. I think that's exactly what was needed here, and it's being done right now.

Posted by: Paul | Apr 2, 2016 3:24:59 PM

Laura: Yes. This is complicated stuff, even for lawyers.

Paul: It’s interesting because courts often define a “reasonable probability” as one sufficient to undermine confidence in the jury’s verdict. I bet most judges use that test as opposed to any rigorous statistical analysis.

streetwriter: I wonder how far along he is in the process.

Suzanne: Luckily, this test is just applied by judges, not jurors.

kate: Agreed. Nothing is certain, but he has a good chance.

Eric: Good points.

Posted by: Colin | Apr 2, 2016 6:58:31 PM


Why won't they consider a reasonable likelihood for Adnan's appeal as in Giglio v. United States? Also I read on a serial subreddit, that the case you referred to on fair likelihood pertained to civil proceedings and not criminal and therefore wouldn't apply.

When should/would a prosecutor be subject to review in regards to Rule 3.8(d)?

Posted by: Amara Tashkar | Apr 3, 2016 4:29:58 AM

carnotbrown: If you follow the classic Monty Hall problem, the odds are better if you change your pick. https://en.wikipedia.org/wiki/Monty_Hall_problem

Posted by: streetwriter | Apr 3, 2016 5:33:54 AM

Paul--I absolutely agree with what you're saying. But it shouldn't take 17 years of an innocent man sitting in prison, hundreds of thousands of dollars, the court system *finally* getting around to *maybe* doing something, someday (we're still waiting for this decision), to possibly hand down a decision that will most likely be appealed and appealed and appealed and take months or years longer while the court system looks the other way and pretends that they get everything right 100% of the time so there's really no need to hurry this along or actually have any reasonable system in place to *actually* deliver justice when it's the judicial system and law enforcement itself that got it wrong in the first place.

Posted by: Eric Wolff | Apr 3, 2016 5:35:25 AM

Interesting (though I think, technically, we should be writing '50% or less' probability, or 'more than 50% probability' - because 50.001 is still more likely than not)

Posted by: Cupcake | Apr 3, 2016 8:30:49 AM

Amara Tashkar: Giglio was a U.S. Supreme Court case interpreting Brady, so it’s certainly relevant. But each state has its own particular definition of the Brady standard, including Maryland. As you note, the Rowhouses case is a civil case. As this post noted, it was a civil case in which the plaintiff claimed illnesses related to lead-based paint and the defendant moved for summary judgment. That said, it is clear that the court was commenting on and modifying the Brady standard. The court cited to Adams, a Brady case, for the definition of “reasonable probability” and then noted that “[w]hat can be gleaned from the discussion in Adams is that a reasonable probability is less than more likely than not, which is a higher standard to meet.” This is then the standard that the court applied to the motion for summary judgment after further fleshing out the definition of “reasonable probability.” I’d have to see the subreddit thread to see what the poster was saying. As for Rule 3.8, I would argue that it should apply much more often than is currently the case.
Streetwriter: Yes, I’ve run the Monty Hall problem past many people before.

Posted by: Colin | Apr 3, 2016 8:34:11 AM

Reddit thread discussing Amara's comment on civil issues: https://www.reddit.com/r/serialpodcast/comments/4d19b7/evidence_prof_blog_what_marylands_new_fair/

Posted by: Cupcake | Apr 3, 2016 9:55:45 AM

Cathy-OMG I know EXACTLY what you are talking about! That auto-refresh thing where you suddenly lose the entire comment you are composing is seriously the bane of my existence lol!

Posted by: Paul | Apr 3, 2016 12:19:17 PM

Cupcake: Thanks. That redditor's posting history should leave us all firmly convinced that this new explanation of the the "reasonable probability" standard does apply to Brady claims.

Paul: Yes, that is a glitch with the blog that I wish could be fixed.

Posted by: Colin | Apr 3, 2016 1:09:45 PM

Re the auto refresh and losing comments, the solution I adopted a while ago was to compose my note in a plain text editor first (in my case, Gedit, for Ubuntu Linux desktop), and then copy and paste it. That also has the benefit of allowing for some editing and reflection before hurrying to preview or submit.

Posted by: streetwriter | Apr 3, 2016 1:28:56 PM

Well, if xtrialatty says ... He's never wrong.

Posted by: FarFarAway | Apr 3, 2016 5:16:29 PM

XtrialAtty also tried to argue that because Justin Brown didn't call witnesses at the recent PCR hearing who could have confirmed Thiru's argument, that the judge will use the missing witness rule to decide against Adnan.

And yes, I fleshed this out in debate to make sure, he means that the DEFENSE should have called any and all possible witnesses who feasibly might say something which supports the STATE'S case. Apparently, there were several random people Justin needed to call, in order to prove they wouldn't have supported Thiru's arguments.

After that discussion I have an inkling why he is an Ex-trial attorney, not a current one. He even linked me to the very first Google result when you search "missing witness rule." He clearly didn't bother reading it first though, as the article clearly laid out exactly why his assessment above is 100% ass-backwards in how the rule is applied.

Posted by: Paul | Apr 3, 2016 9:21:58 PM

Is this as bonkers as it sounds: http://www.wvgazettemail.com/news/20160325/citing-zain-testimony-judge-orders-new-trial-or-release-for-former-charleston-wheeler (as tweeted by Susan)? Could a judge theoretically never respond to a petition/rule on an issue - with little way for a defendant to seek redress? Surely some deadlines should be put in place for courts?

Posted by: Cupcake | Apr 4, 2016 9:47:53 AM

Cupcake - I was VERY curious about that in the Jimmie Gardner case, too. How is it possible that a court could simply ignore multiple SCOTUS rulings directing them to do something by simply not doing it?? How it is that thing? :(

Posted by: Eric Wolff | Apr 5, 2016 12:42:14 PM

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