EvidenceProf Blog

The William S. Boyd School of Law at the University of Nevada, Las Vegas Seeks An Evidence Professor

Faculty Hiring Announcement

Location: Las Vegas, NV
Subjects: Legal Writing, Clinical Legal Education
Start Date: July 1, 2023

The William S. Boyd School of Law at the University of Nevada, Las Vegas, invites applications from both entry-level and lateral candidates for two tenure-track or tenured faculty positions expected to begin July 1, 2023. For these two positions, we seek creative and productive scholars: one with relevant expertise in teaching Legal Writing and one with experience teaching a live-client Clinic. Our faculty who teach legal writing or clinical courses are full members of our unified tenure system with all of the privileges and scholarly expectations associated with tenure; faculty who teach legal writing or clinical courses may teach a podium course as part of our standard 3-course teaching load. Subject matter needs for podium courses are broad and include, but are not limited to, business and commercial law, criminal law, evidence, and property. 

The William S. Boyd School of Law at UNLV is a leading public law school founded on a commitment to public service and community engagement. With its nationally ranked Lawyering Process Program, Saltman Center for Conflict Resolution, and the Thomas & Mack Legal Clinic, Boyd offers a dynamic curriculum designed to teach students critical thinking and lawyering skills. Boyd has an LL.M. in Gaming Law and Regulation and a variety of distinctive Programs in Health Law; Indian Nations Gaming and Governance; International, Transnational, and Comparative Law; and Race, Gender & Policing. Through its J.D. curriculum, students can pursue academic concentrations in Business and Commercial Law, Dispute Resolution, Health Law, Intellectual Property, and Workplace and Employment Law. The law school is located at the heart of the UNLV campus. UNLV is an R1 research university that is among the most diverse campuses in the nation and is also the state’s largest comprehensive doctoral degree granting institution with Schools of Business, Dental Medicine, Engineering, Hospitality, Medicine, Nursing, and Public Health, among many others. 

Applicants for law school faculty positions should submit a letter of interest describing teaching interests and experience and providing a scholarly research agenda, along with a detailed resume, at least three professional references, and cites or links to published works. The Faculty Appointments Committee will begin interviewing candidates in August; candidates who submit applications by August 18 will be given priority.  Interested candidates should send their materials to: 

Faculty Appointments Committee
William S. Boyd School of Law at UNLV
4505 South Maryland Parkway, Campus Box 451003
Las Vegas, NV  89154-1003 
or by email at [email protected]

Members of the Appointments Committee are Professors Thomas Main (chair), Mary Beth Beazley, Frank Rudy Cooper, Mary LaFrance, Lydia Nussbaum, and Jean Sternlight.  

UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

Eleventh Circuit Rejects Premature Deliberations Claim in Death Penalty Appeal

Federal Rule of Evidence 606(b) states the following:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

In Pena-Rodriguez v. Colorado, the Supreme Court also created a Constitutional exception to this "no jury impeachment" rule when there is evidence of racial bias by jurors during deliberations. But, as the recent opinion of the Eleventh Circuit in Gavin v. Commissioner, Alabama Department of Corrections, 2022 WL 2752366 (11th Cir. 2022), of no exceptions apply, jurors cannot testify to impeach their verdict.

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Court of Appeals of Georgia Finds Statements to Responding Officer Did Not Qualify as a Present Sense Impression

Like its federal counterpart, OCGA § 24-8-803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

So, how much time can pass between an event/condition and a statement such that the statement is no longer a "present sense impression" under the exception? Let's take a look at the recent opinion of the Court of Appeals of Georgia in Grimes v. State, 2022 WL 2313683 (Ga. App. 2022).

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Seventh Circuit Finds District Judge Didn't Err in Denying Motion for Court Expert in Printing Press Accident Case

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

While a judge can thus appoint a court expert under Rule 706(a), there are few circumstances where a judge must appoint a court expert. Typically, those circumstances involve highly technical issues at trial that require expert explanation. So, what happened in Stevenson v. Windmoeller & Hoelscher Corp., 2022 WL 2526448 (7th Cir. 2022)?

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Eighth Circuit Finds Third Person/Spousal-Victim Exception to Marital Privilege Applies in Felony Murder Case

The federal confidential marital communications privilege protects against the admission of confidential marital communications between spouses, much like the attorney-client privilege protects against the admission of confidential communications between a client and her attorney. But, as with the attorney-client privilege, the confidential marital communications privilege has exceptions, like the one applied in United States v. White Owl, 2022 WL 2431600 (8th Cir. 2022).

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My Supplement to the Request for Review for Michelle Heale

On February 15, 2022, I filed a Request for Review with the New Jersey Attorney General’s Conviction Review Unit on behalf of Michelle Heale. Here was the Introduction to that Request:

On April 17, 2015, Michelle Heale was convicted of aggravated manslaughter and child endangerment based on the death of fourteen-month old Mason Hess, whom she had been babysitting. Michelle Heale is actually innocent of these crimes and would have been acquitted at trial if not for an error by her trial counsel in failing to present testimony and a report by the leading expert who could have proven her defense. Moreover, new evidence calling into question the use of the traditional triad of symptoms to diagnose Shaken Baby Syndrome – a diagnosis of exclusion, not inclusion – supports a finding of actual innocence. Indeed, this new evidence has led a New Jersey court to conclude that the evidence used to convict Ms. Heale is insufficiently reliable to even be admissible at trial.

Now, a New Jersey court has declared Shaken Baby Syndrome "akin to 'junk science'" based in large part upon testimony by the expert who was contacted by Heale's defense counsel but who never testified because they never followed up with him. As a result, I am filing a Supplement to Heale's Request for Review.  Download Michelle Heale Supplement.

-CM

Undisclosed Mega-Update Thread 9

Yesterday, Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed.

Given this terrific turn of events, I wanted to do an update on the status of all of the cases we covered on Undisclosed.

Total cases covered: 27 cases.

Relief granted: 16 cases: 12 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; (9) Ronnie Long; (10) Joseph Webster; (11) Darrell Ewing; and (12) Joey Watkins. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 6 cases. (1) Pedro Reynoso's CIU petition; (2) Fred Freeman/Temujin Kensu's CIU petition; (3) John Brookins's DNA petition; (4) Jeff Titus's CIU petition; (5) Pam Lanier's motion for a new trial; and (6) Wayne Braddy and Karl Willis's motion for a new trial.

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

Options being explored: 1 case: Rocky Myers

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Georgia Judge Grants Joey Watkins's Petition for Writ of Habeas Corpus

Today, Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed. Here is Judge Thompson's opinion. The State now has four options: (1) appeal by right to the Supreme Court of Georgia; (2) drop the charges against Joey; (3) seek to negotiate a plea deal with Joey to avoid a new trial; or (4) have a retrial. In terms of appealing, though, the State's prospects seem pretty dim because Joey won on both of the issues in his habeas petition, and he only needed to win on one of the issues to get a new trial. Therefore, the State would need to win both issues on appeal. So, what were those issues?

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Eastern District of California Finds Expert Testimony Based on Inadmissible Evidence Admissible in Insurance Dispute

Federal Rule of Evidence 703 provides 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 (emphasis added). 

So, what facts or data do experts in a particular field rely on in forming opinions? The recent opinion of the United States District Court for the Eastern District of California in Burns v. Progressive Casualty Insurance Company, 2022 WL 827036 (E.D.Cal. 2022), provides one example.

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Further DNA Testing is Approved in the Adnan Syed Case

Today, Judge Melissa M. Phinn granted the Joint Petition for Post Conviction DNA Testing in the Adnan Syed case. Here is the judge's order:

So, let's break that down.

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Adnan Syed & the State File a Joint Petition for (Further) DNA Testing

On Tuesday, Adnan Syed and the State of Maryland filed a Joint Petition for Post Conviction DNA Testing. So, what does this mean?

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Ninth Circuit Finds No Error in District Court's Refusal to Sequester State's Summary Witness in Fraud Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The recent case United States v. Fujinaga, 2022 WL 671018 (9th Cir. 2022), provides a good example of Rule 615(c) in action.

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Texas Court Finds Witness's Testimony That He'd Found Christ Didn't Open Door to Impeachment Through His Criminal Record

Texas Rule of Evidence 609(a) provides that

Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

That said, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. So, was this exception triggered in Cortinas v. State, 2022 WL 619158 (Tex.App. 2022)?

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Tenth Circuit Finds No Rule 704(b) Issue With Officers' Testimony in Drug Distribution Case

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Courts, however, have construed this prohibition very narrowly and allowed experts to come awfully close to offering opinions about defendants' mental states in drug distribution cases. The latest example can be found in United States v. Draine, 2022 WL 598972 (10th Cir. 2022).

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2022 Evidence Summer Workshop (ESW2022)

The Evidence Summer Workshop will be held at at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. Details below:

Dear Colleagues,

We are delighted to announce the 2022 Evidence Summer Workshop (ESW2022) to be held at Vanderbilt Law School in Nashville, TN, on May 5-6, 2022. (In the event of a new COVID wave, ESW2022 will be moved to Zoom, but we are hoping to finally be in person again.)
The Evidence Summer Workshop provides evidence scholars an annual venue to present their latest projects, share ideas, and develop lasting relationships among each other. The Workshop features two types of sessions: i) Sessions for working drafts with assigned commentators, and ii) Smaller breakout sessions for ideas at an earlier stage of development.

All evidence scholars, whether presenting or not, are welcome to register and attend. Those wishing to present should submit an abstract or short summary (250 words for working papers, 100 words for early ideas) by March 15, 2022 on the conference webpage, evidenceworkshop.com. We welcome submissions from scholars at all stages of their careers, though some preference will be given to those within their first decade of teaching. Selection decisions will be made by April 1.

ESW2022 includes all meals (dinner, breakfast, lunch) for registrants. Participants are responsible for their own housing and travel costs. A block of rooms will be reserved at a nearby hotel for ESW participants. Additional information will be available soon at evidenceworkshop.com.

The 2022 Evidence Summer Workshop is generously made possible by Vanderbilt Law School’s Branstetter Litigation and Dispute Resolution Program.

If you have any questions, or would like to serve as a commentator on the papers, please contact any of us.

Ed Cheng (Vanderbilt), [email protected]<mailto:[email protected]>
Alex Nunn (Arkansas), [email protected]<mailto:[email protected]>
Julia Simon-Kerr (Connecticut), [email protected]<mailto:[email protected]>
Maggie Wittlin (Fordham), [email protected]<mailto:[email protected]>

My Request for Review for Michelle Heale in a "Shaken Baby Syndrome" Case

Yesterday, I filed a Request for Review with the New Jersey Attorney General’s Conviction Review Unit on behalf of Michelle Heale. Here's the Introduction to that Request:

On April 17, 2015, Michelle Heale was convicted of aggravated manslaughter and child endangerment based on the death of fourteen-month old Mason Hess, whom she had been babysitting. Michelle Heale is actually innocent of these crimes and would have been acquitted at trial if not for an error by her trial counsel in failing to present testimony and a report by the leading expert who could have proven her defense. Moreover, new evidence calling into question the use of the traditional triad of symptoms to diagnose Shaken Baby Syndrome – a diagnosis of exclusion, not inclusion – supports a finding of actual innocence. Indeed, this new evidence has led a New Jersey court to conclude that the evidence used to convict Ms. Heale is insufficiently reliable to even be admissible at trial.

Further details about the case can be found in Elizabeth Weill-Greenberg's article in The Appeal.

-CM

My New Article: "License to Kill?: A New Test for the New Crime Exception"

I have posted a draft of my new article, License to Kill?: A New Test for the New Crime Exception, on SSRN. Here is the abstract:

Imagine that a police officer racially profiles and forcibly arrests an African American man without even reasonable suspicion that he committed a crime. Further, imagine that the man responds by committing a crime such as running away as the officer reaches for his handcuffs or giving the officer a fake name when asked to identify himself. The new crime exception to the Fourth Amendment exclusionary rule allows for prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Courts largely have applied this new crime exception without any analytical framework or any regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

This article argues that the new crime exception has swallowed the exclusionary rule, but that courts can recalibrate the exception by returning it to its roots in the attenuation doctrine. By applying that doctrine’s traditional framework with a central focus on the purpose and flagrancy of the defendant’s new crime, courts can replace their current “all or nothing” approach with a cost-benefit balancing that will better serve public policy goals in a more nuanced way. This central focus on the purpose and flagrancy of the new crime should mirror the approach currently applied under a different exclusionary rule that deals with the dichotomy between past and future crimes: the attorney-client privilege.

Any comments and feedback are welcome and appreciated.

-CM

Sixth Circuit Finds Evidence About Alleged Sex Trafficking Victims' History of Prostitution Inadmissible Under Rape Shield Rule

Federal Rule of Evidence 412(a) provides that

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

That said, Federal Rule of Evidence 412(b)(1)(C) provides that

The court may admit the following evidence in a criminal case:....

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

So, should a defendant charged with sex trafficking be able to present evidence that the alleged victims of that trafficking had engaged in prostitution? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Bixler, 2022 WL 247740 (6th Cir. 2022).

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District of Minnesota Broadly Construes the Term "Claim" For Purposes of Applying Rule 408

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority (emphasis added)

So, when is there a "claim" sufficient to trigger Rule 408? Let's take a look at the recent opinion of the United States District Court for the District of Minnesota in Steffen v. Northway Resource Development, LLC, 2022 WL 228243 (D.Minn. 2022).

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District of Maine Opinion in Whole Foods Litigation Reveals That Rule 408 is Not a Discovery Rule

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Like other rules of evidence, Rule 408 is a rule of (in)admissibility, not a rule of discovery, as is made clear by the recent opinion of the United States District Court for the District of Maine in Opio v. Whole Foods Market Group, Inc., 2022 WL 227114 (D. Maine 2022).

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