EvidenceProf Blog

The State's Reply Brief & Gutierrez's Failure to Secure a Limiting Instruction for Cell Tower Pings

This is the big one. At the reopened PCR proceeding, in its Application for Leave to Appeal (ALA), and in its Brief of Appellant, the State has advanced a consistent theme: Even though Cristina Gutierrez did not use the AT&T disclaimer, she was effective because her attacks on the cell tower evidence produced a blueprint for cross-examination that continues to be followed today. Here's the pertinent language from the ALA:

And here's the corresponding language from the Brief of Appellant:

This argument from the State was dependent upon Gutierrez's master stroke of procuring a limiting instruction informing jurors that the cell tower pings were only evidence that could be used to corroborate (or dispel) Jay's testimony and not independent evidence of the location of Adnan's cell phone. As the State noted in its Brief of Appellant:

Thereafter, in what I characterized as a "legal bombshell," the defense responded in its Brief of Appellant that the Emperor had no clothes: While the trial judge recognized the potential prejudice associated with the cell tower evidence and asked the parties to craft proposed limiting instructions, the defense possibly ever never crafted a draft limiting instruction and definitely never objected to the judge failing to give such an instruction. So, how did the State respond to this revelation?

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The State's Erroneous Claim That Judge Welch Didn't Apply the Presumption of Reasonableness

In yesterday's Reply Brief and Appendix of Cross-Appellee in the Adnan Syed case, the State argued as follows:

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My First Take on the State's Reply Brief in the Adnan Syed Case

Yesterday, the State filed its Reply Brief and Appendix of Cross-Appellee in the Adnan Syed case. This is the last brief before oral argument in the Court of Special Appeals of Maryland on June 1st. It's also the first (and only) time before oral argument that the State is addressing the issue of whether trial counsel was ineffective based upon failure to contact prospective alibi witness Asia McClain; the State didn't address this issue in its first brief.* So, how did the State do?

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Georgia Innocence Project Seeks to Overturn Sexual Assault Conviction Based on DNA Testing

According to an article yesterday by Bill Rankin,

For the past 27 years, Ronald Jacobsen has been serving a life sentence for kidnapping a woman from a Newton County convenience store and then beating and sexually assaulting her on a two-hour drive down I-20.

A DNA test now shows, however, that Jacobsen did not commit the crime, Vanessa Potkin, a lawyer for the Innocence Project, told a judge on Tuesday. GBI tests show that male DNA from the woman’s rape kit could not have come from Jacobsen, she said, and she is asking the court to grant Jacobsen a new trial.

District Attorney Layla Zon, however, opposed the motion, claiming

that the DNA brought forward by the Innocence Project could have come from a man with whom the victim had consensual sex not long before the assault. As a result, she said, the test results are inadmissible under the Rape Shield Act, which prohibits evidence of a rape victim’s sexual history.

So, is Zon right?

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The 8th Circuit's Shifting Standard on Pedagogic Devices at Trial

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 1006 is a rule of convenience. Imagine a case where the prosecution has the defendant's phone records for a six month period and wants to highlight the calls that he made to his three alleged accomplices during that period in time. Under Rule 1006, the prosecution could prepare a chart that just shows the calls made to these three individuals.

As the recent opinion of the Eighth Circuit in United States v. Needham, 852 F.3d 830 (8th Cir. 2017), make clear, some courts also allow for the introduction of "pedagogic devices." The opinion, though, doesn't note an important point about these devices.

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Georgia Applies Absence of Public Record Hearsay Exception in Karaoke Robbery Case

Federal Rule of Evidence 803(10) contains one of the more interesting hearsay exceptions. It allows for the admission of the absence of a public record. Georgia's version of this exception -- OCGA Section 24-8-803(10) -- describes the exception as follows:

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Up until recently, however, the Georgia courts had never applied this exception. That all changed, though, with the recent opinion of the Court of Appeals of Georgia in Tran v. State, 2017 WL 939400 (Ga.App. 2017). 

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The Forgotten "Existence of Duty" Exception to the Subsequent Remedial Measure Rule

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

This rule can be explained pretty quickly with a series of hypotheticals:

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Court of Appeals of Minnesota Rejects Use of Jury Instruction on Problems w/Cross-Racial Identifications

Bearing out the underlying findings of these studies, cross-racial misidentifications have surfaced in a large number of wrongful convictions. The single greatest cause of wrongful convictions in the United States is eyewitness misidentification. In a 2000 study, Innocence Project founders Barry Scheck and Peter Neufeld, along with columnist Jim Dwyer, found that 82% of wrongful convictions included mistaken eyewitness identifications. Of those mistaken identifications, 44% were Caucasian individuals erroneously identifying an innocent African-American defendant as the perpetrator.

Cross-racial misidentifications that lead to wrongful convictions can occur because people find it difficult to recognize physical traits with which they are unfamiliar. Valena Beety, What the Brain Saw: The Case of Trayvon Martin and the Need for Eyewitness Identification Reform, 90 Denv. U. L. Rev. 331, 342 (2012).

In response to the finding that mistaken cross-racial misidentifications are a leading cause of wrongful convictions, courts have done three things: (1) allowed expert testimony on the problems with cross-racial identifications; (2) given jury instructions on the problems with cross-racial identifications; or (3) nothing. With its recent opinion in State v. Thomas, 890 N.W.2d 413 (Minn.App. 2017), the Court of Appeals of Minnesota chose option #3. But that might change if and when the case reaches the Supreme Court of Minnesota.

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Court of Appeals of Utah Finds Rule of Completeness is a Rule of Admissibility

Like its federal counterpart, Utah Rule of Evidence 106, the rule of completeness, provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

There's a debate across the country over whether the rule of completeness is just a rule of timing or also a rule of admissibility. In its recent opinion in State v. Sanchez, 380 P.3d 375 (Utah App. 2016), the Court of Appeals of Utah addressed this debate for the first time.

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The Kind of Case Changed By Maryland's New Rape Law

According to an article in BuzzFeed News, 

Maryland rape victims no longer need to prove they physically fought back against their attackers, according to a new bill signed today by Gov. Larry Hogan that changes the state's legal definition of rape.

Under the new law, "Establishing that evidence of physical resistance by a victim is not required to prove that a sexual crime was committed." Goldberg v. State, 395 A.2d 1213 (Md.App. 1979), provides a good example of the type of case that will be prosecuted differently under the new law.

Note: The content that follows is graphic.

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Court of Criminal Appeals of Alabama Finds Wife's Statement Accusing Husband of Murder Was Not a Statement Against Interest

Similar to it its federal counterpart, Alabama Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay

A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

Usually, this "statement against interest" exception is used for statements that are clearly against the speaker's pecuniary or proprietary interest. For example, if Will said, "I owe Paul $500," that would clearly be a statement against pecuniary interest. Similarly, if Wanda said, "Paula has an easement across my property," that would clearly be a statement against proprietary interest. But what if Wanda said, "My husband killed Vince?" This was the question addressed by the Court of Criminal Appeals of Alabama in its recent opinion in Sheffield v. State, 2017 WL 1034568 (Ala.Crim.App. 2017).

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Court of Criminal Appeals of Tennessee Finds Belief in Imminent Death Can be Inferred for Dying Declaration Exception

Like its federal counterpart, Tennessee Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent and concerning the cause or circumstances of what the declarant believed to be impending death.

And, as the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Thompson, 2017 WL 943372 (Ct. Crim. App. Tenn. 2017), makes clear, the declarant's belief of imminent death can be "inferred from the circumstances."

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Would the Court of Special Appeals Excuse Any Possible Waiver of the Cell Tower Issue in the Adnan Syed Appeal?

I think that the most unpredictable issue on appeal in the Adnan Syed case is the issue of waiver. Quite honestly, I have no idea whether the Court of Special Appeals will find that Adnan did or did not waive his cell tower claim. The court could find that:

(1) Adnan was "freely allowed" to add the claim pursuant to Rule 4-402(c);

(2) Adnan did not intelligently and knowingly waive the claim pursuant to the test established in Curtis v. State;

(3) Adnan intelligently and knowingly waived the claim pursuant to the test established in Curtis v. State;

(4) Adnan intelligently and knowingly waived the claim, but such waiver is excusable pursuant to Rule 8-131(a); or

(5) the intelligent and knowing waiver test doesn't apply to Adnan's case based upon one of the arguments made by the State in its Brief of Appellant (e.g., "Curtis was decided when an unlimited number of post-conviction petitions could be filed....").

In this post, though, I want to look more closely at the possibility of the Court of Special Appeals finding waiver, but excusing that waiver.

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