EvidenceProf Blog

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

Friday, July 7, 2017

How the "One Juror" Standard Could Lead to Adnan Syed Getting a New Trial

Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:

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The answer to this question could very well answer the question of whether Adnan Syed will get a new trial. 

Pursuant to Strickland v. Washington, a defendant is entitled to a new trial based upon ineffective assistance of counsel if he can establish (1) deficient performance; and (2) prejudice. A defendant establishes prejudice by establishing that non-deficient performance by his trial counsel would have created the reasonable probability of a different outcome at trial.

There are two key phrases in this test: "reasonable probability" and "different outcome." 

With regard to the phrase "reasonable probability, the Court of Appeals of Maryland held in Williams v. State, 605 A.2d 103, 107 (Md. 1992), that "the prejudicial effect of counsel's deficient performance need not meet a preponderance of the evidence standard." In turn, "preponderance of the evidence" means "more likely than not," or greater than 50%.

Next, let's look at "different outcome." The exchange at oral arguments was based upon the following question: When a defendant has been convicted, is a "different outcome" an acquittal or a hung jury? Recently, the Fourth Circuit (the federal judicial circuit covering Maryland) issued its opinion in Hope v. Cartledge, 857 F.3d 518 (4th Cir. 2017).

Hope was a case out of South Carolina in which the defendant claimed ineffective assistance of counsel based upon trial counsel's failure to request an alibi defense instruction. In discussing the prejudice prong of the defendant's claim, the Fourth Circuit noted the following:

In jurisdictions such as South Carolina, where a jury must return a unanimous verdict to convict, the prejudice prong of Strickland is met where "there is a reasonable probability that at least one juror would have struck a different balance." Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Like South Carolina, Maryland requires a unanimous verdict to convict, so we have both the Supreme Court and the Fourth Circuit stating that the "one juror" standard applies. So, what does this mean in terms of the Adnan Syed case?

Let's assess this in terms of Adnan's alibi claim, which seems to be the claim that is more disputed on the prejudice prong. Based upon the above two definitions, in order to find prejudice, the Court of Special Appeals merely needs to find that there's a good, but less than 50%, chance that one out of the twelve jurors at Adnan's trial would have had reasonable doubt if Asia McClain had testified at trial.

In other words, the Court can find that it's more likely than not that Asia's testimony wouldn't have created reasonable doubt for any of the twelve jurors and that there's not even a good chance that eleven of the jurors would have been swayed. All the defense needs to establish is a good chance that 1/12 jurors would have been swayed, and that's enough for a new trial.



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Hi Colin, as always you are so sharp! It did seem an oddly facile question Judge Woodward's question, Justin seemed a little stumped even, but it seem a lot more sensible (and pointed) now you've explained the significance of Wiggins v Smith.

One tiny point - is there an extra negative in that final paragraph? Maybe I just got a bit lost but thought perhaps it should be "Asia's testimony would", rather than "wouldn't".

Posted by: Creuset | Jul 7, 2017 5:42:02 AM

Wow. What an interesting caveat of MD law. It's unfortunate that jurists often let one another convince each other of truth when there is doubt. What case was it that one juror did their OWN drive test and changed their mind on sticking to a not-guilty vote? Suspect Convictions? I don't think it was Undisclosed. Haha you'd know better than I would, Collin. Thanks for being such a good educator in and out of the classroom.

Posted by: Megan Pawlak | Jul 7, 2017 8:40:03 AM

Megan - it was Undisclosed Season 2 (State v Joey Watkins) where the juror did her own drive test, and admitted that to Susan Simpson.

Posted by: FormerAgent | Jul 7, 2017 11:45:32 AM

Creuset: I don’t think there’s an extra negative because that portion of the paragraph is saying that the judges can find that it’s less than a 50% chance that Asia would have swayed any of the jurors and still grant a new trial.

Megan and FormerAgent: Right, that’s the Joey Watkins case.

Posted by: Colin Miller | Jul 7, 2017 2:17:45 PM

Not completely related, but what do you think Colin of the idea of having professional certified jurors in the courtrooms? They would be trained and understand legal standards and understand the meaning and gravity of jury instructions. It would cost a little more up front, but perhaps would save in the long run when considering the costs of appeals.

Posted by: Robert | Jul 11, 2017 8:16:07 AM

I know you were asking Colin, but I think that's a great idea and have been considering potential pitfalls.

I think that for such a system to be successful, it would need to be kept completely and utterly sequestered organizationally from the courthouse and judiciary itself. What would be disasterous is if the same pitfalls that do regularly occur because judges and prosecutors are almost always coming from the same stock of people (result being judges who act like de facto proxy prosecutors on the bench).

Posted by: Paul | Jul 14, 2017 2:14:20 PM

"Not completely related, but what do you think Colin of the idea of having professional certified jurors in the courtrooms?"

We have those. They're called judges, and defendants can seek a bench trial. But they generally don't. For example, Adnan didn't and likely won't again in the event he's granted a new trial.

Posted by: steve | Jul 17, 2017 8:37:46 AM

Maybe not an entire jury being certified. But, a certified jury assistant. This person would not sit in court, only be in the deliberating room. They would help answer legal questions for the jury. They could offer an explanation for things the jury heard. Perhaps this could help juries more. if the entire jury is made of professional jurors, I'm afraid lawyer biases would occur more than they do now.

Posted by: Fan3636 | Jul 22, 2017 8:34:09 AM