EvidenceProf Blog

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

Friday, August 23, 2019

My Third Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

As noted in a prior post, there is a proposed amendment to Federal Rule of Evidence 807 that would take effect in December 2019. Under the current version of Rule 807, a party seeking to offer a statement under the residual hearsay exception must establish that the statement is

is offered as evidence of a material fact;...[and]

admitting it will best serve the purposes of these rules and the interests of justice.

The amended rule would eliminate both of these requirements. So, what's the reasoning behind the change and the practical effect?

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August 23, 2019 | Permalink | Comments (1)

Wednesday, August 21, 2019

My Second Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

As noted in a prior post, there is a proposed amendment to Federal Rule of Evidence 807 that would take effect in December 2019. Here's the beginning of the amended Rule:

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As you can see, the amended Rule specifically tells judges to consider evidence corroborating a hearsay statement offered under the residual exception. So, what does this mean?

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August 21, 2019 | Permalink | Comments (0)

Monday, August 19, 2019

Defense Team for Adnan Syed Files Petition for Writ of Certiorari w/United States Supreme Court

Today, the defense team in the Adnan Syed case filed a petition for writ of certiorari with the United States Supreme Court. In this post, I will break down what this means and what it argues.

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August 19, 2019 | Permalink | Comments (12)

Saturday, August 17, 2019

My First Post on the Amendment to Federal Rule of Evidence 807, the Residual Hearsay Exception

Federal Rule of Evidence 807, the residual hearsay exception, currently reads as follows:

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But, under a proposed amendment that would take effect in December 2019, Rule 807 would look meaningfully different.

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August 17, 2019 | Permalink | Comments (0)

Thursday, August 15, 2019

U.S. Navy-Marine Corps Court of Criminal Appeals Grapples With Scope of Amended Prior Consistent Statement Rule

Assume that Witness testifies at trial she saw Defendant on the day of a murder carrying a sawed off shotgun. Moreover, assume that Witness had said something similar in a police statement made in the days after the murder. Finally, assume that defense counsel impeaches Witness's credibility by calling Neighbor, who testifies that Witness has a reputation in the neighborhood for being a liar. Can the prosecution now admit the pertinent portion of Witness's police statement as a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B)? I'm not sure, and I also think that the U.S. Navy-Marine Corps Court of Criminal Appeals is unsure as well.

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August 15, 2019 | Permalink | Comments (2)

Wednesday, August 14, 2019

Court of Special Appeals of Maryland Finds Evidence of Appropriate Interactions With Students is Not Character Evidence

Federal Rule of Evidence 404(a)(2)(A) and most state counterparts provide that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it 

So, a defendant charged with murder can present evidence regarding his character for nonviolence. And, a defendant charged with fraud can present evidence regarding his character for honesty. But, can a defendant charged with sex abuse of a minor present evidence regarding his character for "appropriate interaction with students in his care and custody." That was the question of first impression addressed by the Court of Special Appeals of Maryland in its recent opinion in Vigna v. State, 2019 WL 3451382 (Md.App. 2019).

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August 14, 2019 | Permalink | Comments (0)

Saturday, August 10, 2019

Supreme Court of Nevada Sets Rules for Empaneling Anonymous Juries

What's an anonymous jury? The exact details vary somewhat from jurisdiction to jurisdiction, but here's what was done in a recent Nevada case:

[T]he district court decided to empanel an anonymous jury and redact the jurors’ names and addresses from the juror questionnaires. The record indicates that the district court expressly explained its reasons for doing so to the parties before trial. The record also indicates that counsel retained access to the jurors’ geographical locations, ages, professions, education levels, family demographics, and other biographical and personal information. Moreover, the district court apparently invited counsel to view the unredacted juror questionnaires of certain jurors the court flagged before formally starting jury selection.

Before questioning began, the district court informed all prospective jurors of its decision to identify them by number, not name, but explained that it was doing so to protect their privacy:

You may be questioning why are we using numbers instead of names. Well, some of you may have seen the newspaper yesterday. I don’t know if it’s in today. But as the judge here, I felt your privacy was important and I didn’t want you being harassed or followed up during your time as jurors here. And so for that reason, I’ve selected this panel according to numbers. So you can rest assured that the newspaper reporters will leave you alone.

Extensive voir dire followed, which appears to have lasted a couple of hours. During this time, both parties had the opportunity to examine the panel of prospective jurors and ask a wide range of questions aimed at uncovering bias. Nothing in the record suggests that the district court limited the scope of questioning or rushed either party during this process. Instead, the only apparent limitation placed on voir dire was the redaction of the jurors’ names and addresses.
So, when is a judge allowed to empanel an anonymous jury?

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August 10, 2019 | Permalink | Comments (1)

Tuesday, August 6, 2019

Supreme Court of South Carolina Finds Failure to Elicit Alibi Testimony Was Ineffective Assistance of Counsel in Armed Robbery Case

Back on March 8th, the Court of Appeals of Maryland denied Adnan Syed a new trial in a 4-3 opinion, finding that (1) trial counsel rendered deficient performance in failing to contact prospective alibi witness Asia McClain; but (2) the failure to contact was not prejudicial, i.e., did not undermine confidence in the jury's verdict. The defense's cert petition to the United States Supreme Court is due on August 19th, and one its arguments will undoubtedly be that there is not a single other case in which another court has found that deficient performance in connection with an alibi witness was not prejudicial. This stands in contrast to the dozens (hundreds?) of cases in which courts have found that deficient performance in connection with an alibi witness was prejudicial. And now, a new case can be added to this column: Martin v. State, 2019 WL 3211276 (S.C. 2019).

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August 6, 2019 | Permalink | Comments (1)

Monday, August 5, 2019

Mega Update on All Undisclosed Cases

Only July 30th, all charges against Chester Hollman III were dropped two weeks after a judge accepted the prosecution's argument that he was "likely innocent" of a 1991 murder. Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Adnan Syed


Unfortunately, you probably know the status of Adnan's case (Undisclosed series). After the Circuit Court and the Court of Special Appeals of Maryland granted him a new trial, the Court of Appeals reversed in a 4-3 ruling. The next step is a cert petition to the United States Supreme Court that will be filed by August 19th and that will likely be denied. This will likely be followed by a claim of ineffective assistance of postconviction counsel based on the AT&T disclaimer that will very likely succeed, lead to his conviction being thrown out.

Joey Watkins


Joey had two claims (Undisclosed series). I think his stronger argument is that a juror improperly did a drive test during deliberations to see if she could make the cell tower pings work. Substantively, this is a clear winning argument for a new trial. The Circuit Court, however, found that the argument was procedurally barred due to waiver. This ruling was appealed to Supreme Court of Georgia, which initially declined to hear it. In a stunning turn of events, however, the Supreme Court of Georgia granted Joey's motion for reconsideration. As a result, while it might take a few years, I now think there's a very strong chance that Joey's conviction is eventually thrown out.

Jamar Huggins


The one witness to implicate Jamar Huggins in a home invasion in Conway, South Carolina has since recanted and named the actual person who committed the crime (Undisclosed series). The initial claim was that this was "new evidence" allowing for a new trial. But the Circuit Court found this recantation was known and not used by trial counsel. That decision was recently affirmed by the Court of Appeals of South Carolina. This was all expected and sets up a pretty compelling argument for ineffective assistance of trial counsel. I'm currently working on that argument with Jamar's attorney.

Marcellus Williams


Governor Eric Greitens  stayed Marcellus Williams's execution in August 2017 (Undisclosed special episode). He also appointed a Board of Inquiry to review his case. That Board has not yet issued its report.

Shaurn Thomas


In March 2017, the Conviction Integrity Unit in Philadelphia threw out Shaurn Thomas's conviction (Undisclosed series).

Willie Veasy


Veasy's timecard shows him working at the time he was allegedly killing "The Jamaican," the only witness against him was legally blind, and the State suppressed exculpatory evidence (Undisclosed series). We are currently working with the Conviction Integrity Unit on this case and hope for a ruling soon.

Terrance Lewis


Judge Barbara McDermott declared Terrance innocent in May, leading to his release from prison (Undisclosed series).

Chester Hollman III


As noted above, a judge recently accepted the prosecution's statement that Chester was "likely innocent" of the 1991 murder of Tae Jung Ho and released, with the State subsequently dropping all of the charges against him, accompanied by an apology (Undisclosed series). 

Cyntoia Brown


Govenor Bill Haslam granted Cyntoia Brown clemency, meaning she should be released August 7th (Undisclosed special episode).

Ronnie Long


A three judge panel of the United States Court of Appeals for the Fourth Circuit recently heard oral arguments on Ronnie's claim of Brady violations (Undisclosed series). A decision should be imminent.

William Montgomery


Governor John Kasich commuted William's death sentence to a life without parole sentence in March 2018 (Undisclosed special addendum interview).

Pamela Lanier


In the near future, expect a motion for a new trial from the Wake Forest team based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her (Undisclosed series).

Dennis Perry

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Expect a motion for a new trial by the Georgia Innocence Project in the near future based on many of the issues we raised in our most recent series [Edit: Dennis's habeas petition was filed in June] (Undisclosed series).

Charles Ray Finch


The Fourth Circuit first found that Charles Ray Finch has proven his "actual innocence."  Then, a federal district court granted his habeas petition and set him free in May (Undisclosed special episode

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Rocky Myers

We just finished our series on Rocky Myers, who has no ability to appeals his murder conviction due to his abandonment by appellate counsel. As a result, it is difficult to see a path toward exoneration in the courts. That said, we hope that his death sentence can be commuted to a life sentence due to the use of judicial override in his case, and we also hope that we can convince Governor Kay Ivey to stay execution if and when that execution is scheduled (Undisclosed series).


August 5, 2019 | Permalink | Comments (8)

Friday, August 2, 2019

For the First Time, Massachusetts Deems Memory Loss a Proper Ground For Declarant Unavailability

Massachusetts evidence law is weird. The state has a Guide to Evidence that is updated annually but that is not binding upon the courts. That said, those courts can adopt portions of the Guide to Evidence, which is what the Supreme Judicial Court of Massachusetts did in its recent opinion in Hedberg v. Wakamatsu, 2019 WL 3023528 (Mass. 2019). But that opinion is odd for a few reasons.

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August 2, 2019 | Permalink | Comments (1)