EvidenceProf Blog

Undisclosed Mega-Update Thread 5

On August 27, 2020, the United States District Court for the Eastern District of North Carolina entered an order vacating Ronnie Long's convictions for first-degree rape and burglary. This came on the heel of the en banc opinion by the United States Court of Appeals for the Fourth Circuit finding that the State committed a Brady violation by failing to disclose several pieces of material exculpatory evidence.

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.

Total cases covered: 22 cases.

Relief granted: 13 cases: 9 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; and (9) Ronnie Long. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 4 cases. (1) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (2) Joseph Webster's CRU petition; (3) Pedro Reynoso's CIU petition; and (4) Fred Freeman/Temujin Kensu's CIU petition.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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The Admissibility of Statements Made to Doctors Consulted For the Purpose of Enabling Him/Her to Testify

Federal Rule of Evidence 803(4) provides an exception the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

So, if Pam feels sick and goes to a doctor to be diagnosed and treated, clearly her statements would be admissible under Rule 803(4). And the same would apply to statements made to the doctor by Pam's family and friends so she can be diagnosed/treated. But what if Pam believes that she has been injured or made sick based on the wrongdoing of someone and consults with a doctor solely so that the doctor can testify at her trial. Are Pam's statements admissible?

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The Pound Civil Justice Institute Civil Justice Scholarship Award

The Pound Civil Justice Institute is pleased to offer again this year our award designed to recognize current research and writing on civil justice issues, and to encourage such research in the future.  The Civil Justice Scholarship Award will be presented at Pound’s winter Fellows receptions.  The nomination deadline is Monday, September 14, 2020; the award will be presented on Sunday, February 7, 2021 in Palm Springs, California.

We will recognize two works annually (as possible) – one book and one article.  Law school deans may make one nomination for each category (book and article) for professors in their school.  Self-nominations are also permitted.  Attached is a flyer about the award for you to share/post to relevant list servs or websites.  Criteria and nominating form (and the flyer) can be found at http://www.poundinstitute.org/civil-justice-scholarship-award/.

Here is the announcement: Download 2021 CJSA Announcement

Eighth Circuit Opinion Notes Limitations of Best Evidence Rule

Federal Rule of Evidence 1002, often called the Best Evidence Rule, states that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

But, as was the case in United States v. Delorme, 964 F.3d 678 (8th Cir. 2020), the Best Evidence Rule often doesn't require the best evidence.

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Supreme Court of Idaho Addresses Time Lapse Allowed For Present Sense Impressions

Similar to its federal counterpart, Idaho Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The first part of this "present sense impression" exception is easy enough. If I tell my friend, "My stomach hurts" while my stomach hurts, my statement is a present sense impression because I am describing/explaining a condition while I am perceiving it. Similarly, if I say to my friend, "Hey, that's Nancy" while I see Nancy crossing the street, my statement is a present sense impression because I am describing/explaining an event while I am perceiving it. But what if I told my friend, "My stomach hurt x minutes ago" or "I saw Nancy crossing the street x minutes ago." How many minutes can pass before my statement is no longer made immediately after I perceived the event or condition?

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More Thoughts on the New Rules of Evidence for Title IX Hearings

In my last post, I described how the U.S. Department of Education has issued new regulations that will require colleges and universities across America to change how they investigate and resolve Title IX complaints. In this post, I will give some information about the new rules of evidence that higher education institutions must use at their hearings. All of the items in this post are presented in more detail in my article, "Hiring and Training Competent Title IX Hearing Officers," which is forthcoming in the Missouri Law Review and is available now online as a pre-publication draft. If you either (1) have responsibility for university hearings or (2) care about evidence law, then several features of the revised regulations should interest you:

First, the new regulations require that institutions ensure that their hearing officers are "trained on issues of relevance, including how to apply ... rape shield provisions" and legal privileges. (Note that institutions commonly use lay faculty and staff, with little-to-no legal training, to conduct hearings.)

Second, institutions of higher education "must permit each party's advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility." (The Department has swept away campus rules preventing the "advisor," who may or may not be a lawyer, from speaking at hearings. Gone are the days in which advisors whispered advice to their clients but otherwise could not participate.)

Third, "cross-examination ... must be conducted directly, orally, and in real time." (The Department has swept away campus rules requiring parties to submit proposed questions in writing to hearing officers, who then decide how and whether to ask the questions of witnesses.)

Fourth, the hearing officer must rule on questions of relevance in real time, deciding whether a witness should answer.

Fifth, the hearing officer must apply a "rape shield," the details of which are described in the revised regulations. The required shield has much in common with Rule 412 of the Federal Rules of Evidence, including having exceptions similar to those at FRE 412(b)(1), which apply in federal criminal cases. Accordingly, hearing officers must decide (1) whether evidence presented is the kind of evidence covered by the rape shield at all and (2) if so, whether an exception applies that allows admission.

Sixth, the hearing officer must exclude evidence protected by a legal privilege, unless the holder of the privilege waives. This includes state law privileges (e.g., doctor-patient, attorney-client) and the Fifth Amendment privilege against self-incrimination.

Seventh, if a student invokes his Fifth Amendment right, a university decision-maker cannot hold that against him when deciding the outcome of the case. In other words, participants in university hearings will be treated like criminal defendants (who in theory cannot be punished for their failure to testify), not like civil parties (who indeed face adverse inferences if they invoke).

Eighth, unless a piece (or category) of evidence is explicitly excluded by the revised regulations (such as evidence covered by the rape shield, or privileged material), relevant evidence must be admitted, even if the same evidence might be excluded in a real court. The Department gave examples of relevant evidence that cannot be excluded at college hearings (despite often being inadmissible in court), such as evidence that "concerns a party's character or prior bad acts," hearsay, and "party statements made during mediation discussions." Nor can evidence be excluded because it "is cumulative, duplicative, or unduly prejudicial." All objections about this kind of evidence go to weight, not admissibility.

For more detail, please see my forthcoming article. Please speak up in the comments if you have any thoughts on the new rules.

  - Ben Trachtenberg