EvidenceProf Blog

The Straightforward Case For Adnan Syed's Innocence

Oral arguments in the Adnan Syed/Hae Min Lee case are right around the corner (October 5th) in the Supreme Court of Maryland. The case has been dissected and analyzed all across the media, so much so that it gets difficult to see the forest for the trees. When we take a step back, though, things are much more straightforward in this case than a typical case because we had a mistrial at Adnan's first trial. This makes it very easy to see what has always been "the crux" of the State's case against Adnan and why that center could not hold.

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Louisiana Only Allows Evidence of the Victim's Bad Character for Violence if There's Evidence (S)he Committed an Overt Act at the Time of the Crime Charged

Federal Rule of Evidence 404(a)(2)(B) provides that 

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait

By way of contrast, Louisiana Article of Evidence 404(A)(2)(a) contains additional restrictions. It states that

Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence;  provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible;  provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence;  and further provided that an expert's opinion as to the effects of the prior assaultive acts on the accused's state of mind is admissible (emphasis added).

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Southwestern Law School Seeks an Evidence Professor

SOUTHWESTERN LAW SCHOOL in Los Angeles invites applications for the following positions:

• Multiple full-time entry-level and lateral tenure/tenure-track positions. Our primary curricular needs include Business Associations, Civil Procedure, Criminal Law/Criminal Procedure, Evidence, and Property. 
• Full-time entry-level or experienced Associate Professors of Academic Success and Bar Preparation
• Full-time entry-level or experienced Associate Professors or Professors of Legal Analysis, Writing, and Skills.

Founded in 1911, Southwestern is an ABA-accredited, independent law school located in the center of Los Angeles. Our mission includes educating lawyers ready to serve clients, the profession, and our society with excellence, empowering students to reach their potential, cultivating inclusion and belonging, and shaping the law and public policy through teaching, scholarship, and service.

To apply, please send your CV, professional references, research agenda, and preferred areas of teaching via email to [email protected] and put "Faculty Application" in the email subject line. Review of applications will begin in mid-August. Initial interviews will be held via Zoom, and callback interviews will be held in person. 

Court Finds Husband "Tagging" His Wife on Facebook Posts Was a "Communication," Violating Her Protective Order Against Him

Does "tagging" someone on Facebook constitute a communication for purposes of a protective order? This was the question of first impression addressed by the Court of Appeals of Texas in its recent opinion in Boes v. State, 2023 WL 5242592 (Tex. App. 2023),

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Why It's Highly Likely Becky Heard Hae Tell Adnan She Couldn't Give Him a Ride b/c She Had "Something Else to Do" on January 13, 1999

There has been a good bit of discussion about the Adnan Syed case on Twitter/X recently, and a good deal of it has dealt with Becky, a classmate and friend of both Adnan and Hae Min Lee. I've written before on this blog about Becky, but I don't think I've ever done a full post on why it is highly likely that the critical event she remembers in fact occurred on January 13, 1999, the day Hae disappeared.

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Eighth Circuit Finds Testimony at Plea Hearing to be Inadmissible Hearsay

Assume that a defendant testifies at a plea hearing in a way that incriminates himself and tends to exonerate someone else. If that other person is later prosecuted and the testifying defendant pleads the Fifth, is his testimony inadmissible or admissible as (1) former testimony; (2) a statement against interest; or (3) satisfying the residual hearsay exception? In its opinion yesterday in United States v. Dunn, 2023 WL 5065149 (8th Cir. 2022), the Eighth Circuit found such testimony inadmissible.

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Should Evidence of Sobriety Qualify as Habit Evidence?

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

One of the classic cases involving Rule 406 is Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985), in which the Eleventh Circuit found that the plaintiff's habit of drinking on the job constituted habit evidence. In reaching this ruling, the court cited McCormick on Evidence regarding the distinction between inadmissible character evidence and admissible character evidence (under Rule 406):

Character and habit are close akin. Character is a generalized description of one's disposition, or one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic (emphasis added).

I get honesty and peacefulness, but I'm not sure I agree with temperance.

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How Much Time Can Pass Before a Present Sense Impression is Given?

Similar to its federal counterpart, Texas 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.

It's clear what constitutes a statement made while perceiving an event or condition. If Dana (declarant) says, "My head hurts," or tells her friend on the phone, "Doug is attacking Vince," it constitutes a present sense impression under Rule 803(1). But how much time can pass before a statement is no longer made "immediately after" the declarant perceives it.

Usually, courts says a few minutes at most. Before today, the longest I think I had ever seen was 23 minutes. But then I read Martin v. State, 2023 WL 3115779 (Tex. App. 2023).

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Should the Residual Hearsay Exception Apply to Narrow Misses Under the Dying Declaration Hearsay Exception?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Usually, it is the prosecution using this "dying declaration" exception to introduce statements implicating a defendant (e.g., dying victim saying, "Defendant shot me"). United States v. Berrios, 2023 WL 4745951 (D.V.I. 2023), is the rare example of a defendant trying to use the "dying declaration" exception, and it makes me wonder about using another exception if such an attempt fails.

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Supreme Court of Nebraska Finds Juror's Statements About Reputation of Victim's Family During Deliberations Didn't Allow For Jury Impeachment

Similar to its Federal Rule of Evidence 606(b), Nebraska Rule of Evidence 27-606(2) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

So, are a juror's statements about the reputation of the victim's family "extraneous prejudicial information" allowing for jury impeachment? According to the recent opinion of the Supreme Court of Nebraska in State v. Allen, 992 N.W.2d 712 (Neb. 2023), the answer is "no."

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LSU Looking to Hire an Evidence Professor

The LSU Paul M. Hebert Law Center seeks to hire multiple faculty for tenure-track or tenured positions. The Law Center has needs in a wide variety of areas, including but not limited to the following areas: administrative law, legal writing, artificial intelligence and cyber security, business law including contracts as well as upper-level business electives, environmental law, constitutional law, criminal law, criminal procedure, civil procedure, evidence, family law, legislation, professional responsibility, and food and agriculture. Applicants should have a J.D. from an ABA-accredited law school, some practice experience, superior academic credentials and legal scholarship, as well as a commitment to outstanding teaching.

The Law Center embraces Louisiana’s bijural legal system and endeavors to train lawyers ready to practice anywhere in the world. Our faculty have the opportunity to teach internationally including in our summer program in Lyon, France. LSU is committed to providing equal opportunity for all qualified persons in employment opportunities without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity/equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. All applicants must apply through Workday. https://lsu.wd1.myworkdayjobs.com/LSU/job/0448-Hebert-Law-Center/Assistant-Professor-of-Law-Associate-Professor-of-Law-Professor-of-Law_R00084134

Questions may be directed to Missy Lonegrass, Chair of the Faculty Appointments Committee, [email protected].