EvidenceProf Blog

More on the Baffling Opinion of the Supreme Court of Maryland in the Adnan Syed Case

In yesterday's post on the Adnan Syed case, I noted that

the court ruled that (1) the notice given to Hae's family was not reasonable; (2) Hae's family had the right to attend in person; and (3) Hae's family has the right to be heard on the merits of the Motion. Out of the three rulings, the third one seems the most egregious and unprecedented, doing real damage to the innocence movement and cases in which the State and defense agree there was a wrongful conviction.

I think the dissenting opinion of Justice Booth (joined by Justices Hotten and Battaglia) does a great job of explaining the issues with this third ruling.

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Supreme Court of Maryland Remands Adnan Syed's Case for a New Hearing in a 4-3 Ruling

In a ruling that is 187 pages and has 2 dissents, the Supreme Court of Maryland remanded the Adnan Syed Case to Circuit court for a re-do of the Motion to Vacate his convictions. This is the second 4-3 ruling by Maryland's highest court to go against Adnan Syed in this case, coming on the heels of a 4-3 ruling denying him relief based on his trial attorney's failure to contact alibi witness Asia McClain. So, where do we stand with the case? This post will break things down.

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North Carolina Case Reveals That Inquiry Into Acts of Dishonesty Can Only Occur During Cross-Examination

Similar to its federal counterpart, North Carolina Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross‑examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross‑examined has testified.

As the Rule makes clear, such inquiry can only occur during cross-examination, which was the problem for the defendant in Matter of D.R.J., 2024 WL 3864002 (N.C. App. 2024).

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Eleventh Circuit Finds District Court Properly Excluded Lay Opinion Testimony That Was Based on Hearsay in Taxinet Case

Federal Rule of Evidence 701 states that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

On the other hand, Federal Rule of Evidence 703 states that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

In other words, lay witnesses can only base their opinions on things rationally based on their perceptions, i.e., things they have experienced themselves. On the other hand, expert witnesses can be made aware of facts or data. Indeed, even if those underlying facts or data are inadmissible, experts can offer opinions based on them as long as experts in their field reasonably rely on such facts or data. For example, a doctor could base his opinion on a victim's cause of death in part based upon hearsay statements by family members.

A good example of the limitation on lay opinion testimony can be found in the recent opinion of the Eleventh Circuit in Taxinet Corp. v. Leon, 2024 WL 3863497 (11th Cir. 2024).

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New England Law Boston Seeks an Evidence Professor

New England Law | Boston invites applications from candidates for assistant professor positions to begin in the fall 2025 semester.We seek to hire individuals who are interested in teaching foundational courses, particularly Civil Procedure, Criminal Law, Property, and Torts, and upper-level courses in the areas of Criminal Procedure, Evidence, Family Law, and Tax Law. Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, must demonstrate a commitment to excellent teaching, and have strong scholarly potential and legal practice experience.  Review of applications will continue until the positions are filled. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Individuals interested in applying for a position should submit a letter of application, a résumé or curriculum vitae, a detailed statement of interest including teaching and research interests, and the names and contact information of three references. These materials should be submitted to the Faculty Appointments Committee, via email to [email protected], with the subject line "Faculty Appointments Committee." 

Lincoln Memorial University Duncan School of Law Seeks an Evidence Professor

Lincoln Memorial University Duncan School of Law in Knoxville, TN, seeks entry-level and lateral candidates for full-time, tenure-track faculty positions starting July 2025. LMU Law aims to provide legal education to students from underserved regions, focusing on practice-oriented training for diverse backgrounds. The goal is to produce graduates who will pass the bar and serve their communities, particularly addressing the legal needs of Appalachia and other underserved areas.

We welcome applications from all subject areas, with particular need for expertise in business associations, civil procedure, evidence, property, constitutional law, and criminal law and procedure. As we expand our predominantly online hybrid program, we seek candidates across all doctrinal areas and are particularly interested in those who would enjoy the challenges of online teaching.

Educating the next generation of lawyers is our top priority. Faculty members are committed to supporting students in their academic, professional, and personal development. Our campus design ensures faculty accessibility and active engagement in law school life. We work collaboratively to provide innovative legal education, incorporating skill-based and experiential learning and best practices from academic and bar success. We seek candidates who share this ethos and are excited to contribute.

Candidates must have a J.D. or equivalent, strong academics, and a commitment to legal education. We value diverse experiences, including teaching, scholarship, legal practice, clerkships, and post-law-school work. Candidates without teaching experience but showing promise in teaching and scholarship are welcome. This can be evidenced by involvement in student-focused activities, mentoring, educational presentations, writing for legal publications, or leadership in professional or community organizations.

This position offers a twelve-month contract with teaching responsibilities in alternate summers. Our tenure and promotion policies consider this when determining scholarship requirements.

We are committed to diversity and actively seek applications from underrepresented groups, including people of color, women, individuals with disabilities, LGBTQ+ individuals, and veterans. We value candidates who can enrich our community, program, and mission through their diverse life experiences, perspectives, and philosophies.

Our law school is located in downtown Knoxville, offering vibrant city life, a rich cultural scene, and stunning natural beauty with the Great Smoky Mountains as a backdrop. Knoxville has been recognized as one of the top 25 places to live in the United States.

Inquiries may be directed to Sydney Beckman, Chair of the Faculty Appointments Committee, at [email protected]. Applications can be submitted here and must include a cover letter detailing your interest in LMU Law, a CV, and a list of three professional references. Candidates are welcome, but not required, to provide a statement of teaching philosophy, research agenda, or diversity statement. Candidates invited for campus visits will be requested to provide teaching evaluations from the past three years, if available. The committee anticipates beginning application review immediately.

Supreme Court of Colorado Finds Juror Saying a Judge Told a Prior Jury That Their Verdict Needed to be Unanimous Not Grounds for Jury Impeachment

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) states the following:

(b) Inquiry into validity of verdict or indictment. 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, imagine that a jury is initially deadlocked during deliberations before a juror

mentioned a previous jury they [sic] she served on, in which the jury was told by the judge “I don't want a hung jury, and I want you guys to stay as long as you need to become unanimous.” That juror stated that she was told in the previous trial by the judge that the jury must deliberate until a unanimous verdict was reached....The original juror who referenced her previous jury service, presented that information as the factual information about the law that the jury was required to reach a unanimous verdict.

Would this constitute extraneous prejudicial information, allowing for jury impeachment? According to the recent opinion of the Supreme Court of Colorado in Clark v. People, 2024 WL 3284574 (Colo. 2024), the answer is "no."

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The Key Difference Between Federal Rule of Evidence 614(a) and its Tennessee Counterpart

Federal Rule of Evidence 614(a) provides that 

The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

The ability of the judge/court to call witnesses in more circumscribed under Tennessee law. Pursuant to Tennessee Rule of Evidence 614(a),

The court may not call witnesses except in extraordinary circumstances or except as provided for court-appointed experts in Rule 706, and all parties are entitled to cross-examine witnesses thus called.

So, what does this difference mean in practice?

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The Key Difference Between Federal Rule of Evidence 608(b) and its Pennsylvania Counterpart

In yesterday's post, I noted a key difference between Federal Rule of Evidence 608(b) and its Oregon counterpart. In this post, I'll note a key difference between Federal Rule of Evidence 608(b) and its Pennsylvania counterpart. Federal Rule of Evidence 608(b) provides in pertinent part that:

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

On the other hand, Pennsylvania Rule of Evidence 608(b) states the following:

(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; however,

(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.

So, what does this mean in practice?

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The Key Difference Between Federal Rule of Evidence 608(b) and its Oregon Counterpart

In pertinent part, Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

Oregon's version of the rule, however, is different.

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The Difference Between Massachusetts and Federal Law on Dying Declarations

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.

As with other Rule 804(b) hearsay exceptions, Rule 804(b)(2) only applies if the declarant is "unavailable," which could be based upon the declarant dying soon after making the subject statement, but also could be based upon the declarant (1) dying days later; or (2) miraculously surviving, but suffering from memory loss (along with other types of unavailability). 

Massachusetts doesn't have official rules of evidence, but it does have a guide to evidence that sets forth the state's precedent on evidence law, and its "version" of Rule 804(b)(2) is a little different. It provides an exception to the rule against hearsay

In a prosecution for homicide, [for] a statement that a declarant, who believed that the declarant’s death was imminent and who died shortly after making the statement, made about the cause or circumstances of the declarant’s own impending death or that of a co-victim.

This same "rule" is stated in the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Monegro, 2024 WL 3579911 (Mass. App. 2024). So, when would this "rule" reach a different conclusion than the federal rule?

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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, Evidence, and Property. When selecting candidates to interview, we also will consider whether they might also contribute in the following areas: Administrative Law, Contracts, Copyright, Business/Corporate/Entrepreneurship electives; Cyberlaw/Technology/Privacy, Entertainment Law, Family Law, International Business Transactions, Professional Responsibility, and Wills & Trusts.
• Multiple full-time entry-level or experienced Associate Professors of Academic Success and Bar Preparation
• Multiple full-time entry-level or experienced Associate Professors or Professors of Legal Analysis, Writing, and Skills.
  Attached are the ads for each position.

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.

Attached are the ads for each position:

Download Doctrinal (Tenure-Track) Faculty Position Ad

Download Legal Writing (LAWS) Faculty Position Ad

Download Academic Success and Bar Programs Faculty Position Ad