EvidenceProf Blog

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

Saturday, September 16, 2017

Was The Nisha Call Nisha Calling Adnan Back After an Unanswered or Dropped Call?

As we all know, Nisha was a key witness in the Adnan Syed case. She testified that on some unknown date she received a call from Adnan, who told her that his friend Jay had invited him to his job at an adult video store. Adnan told Nisha that he was arriving at the video store during the call and handed the phone to Jay talk to Nisha upon his arrival (the only time she spoke to Jay). The prosecution claims that this call took place at 3:32 P.M. on January 13, 1999. Others, including me, have countered that this call couldn't have taken place until the end of January, when Jay started his job at the adult video store. In turn, this had led to consideration of which outgoing call from Adnan's cell phone to Nisha could have been the adult video store call.

But what if there's no record of this call because it was either unanswered and dropped and then perhaps followed by a call from Nisha to Adnan? 

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September 16, 2017 | Permalink | Comments (22)

Thursday, September 14, 2017

When is a Witness Unavailable to Testify at Trial Due to Mental Illness?

Similar to its federal counterpartIdaho Rule of Evidence 804(b) contains hearsay exceptions that apply if the declarant is "unavailable." In turn, Idaho Rule of Evidence 804(a)(4) states that a declarant is unavailable when she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Usually, courts apply Rule 804(a)(4) in situations where declarants are unavailable due to death or serious physical illness. But when is a declarant "unavailable" due to mental illness? This was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 4016692 (Idaho 2017).

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September 14, 2017 | Permalink | Comments (4)

Tuesday, September 12, 2017

My New Essay: "Reciprocal Immunity"

Today, I posted the draft of my new essay, "Reciprocal Immunity," on SSRN. Here is the abstract:

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

These are the truncated facts of United States v. Davis, a recent Seventh Circuit opinion that has led to a cert petition to the Supreme Court. The same result, however, could have occurred in nearly any court, with cases across the country standing for the proposition that a grant of immunity to a witness for the prosecution doesn’t require reciprocal immunity for a directly contradictory defense witness.  

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Any feedback would be appreciated.


September 12, 2017 | Permalink | Comments (1)

Friday, September 8, 2017

Supreme Court of Utah Finds Preliminary Hearing Testimony Inadmissible Under Former Testimony Hearsay Exception

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) provides a hearsay exception for former testimony that

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B)   is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

In State v. Goins, 2017 WL 3909332 (Utah 2017), the Supreme Court of Utah addressed a question of first impression in the Beehive State that has led to disparate results across the country: Is testimony from a preliminary hearing admissible under the former testimony exception? 

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September 8, 2017 | Permalink | Comments (0)

Thursday, August 31, 2017

Further Support For the Claim That Adnan Was On Time For Track Practice On January 13th

A couple of weeks ago, I posted an entry about Jay's narrative of events from 3:21 P.M. through 4:30 P.M. only making sense if Adnan was late to track practice, regardless of whether track practice started at 3:30 P.M. or 4:00 P.M. This was based upon (1) Jay repeatedly claiming that he was with Adnan for the 3:59 P.M. call to Patrick/Patrice before they headed to the Forest Park Golf Course; and (2) Jay repeatedly claiming that Adnan took the (three minute long) 4:27 P.M. call before heading to track practice.

This could be problematic for the State given that track coach Michael Sye remembered Adnan arriving and leaving on time for track practice on a day that only could have been January 13th:

Screen Shot 2017-08-31 at 6.55.51 AM

Given that Coach Sye didn't take written attendance, though, it is questionable whether he actually knew that Adnan arrived on time for practice. But a new comment to my prior post made me look back at the notes from Coach Sye's statement to detectives, and I think those notes provide pretty good circumstantial evidence that Adnan was on time or at least not 30+ minutes late for practice.

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August 31, 2017 | Permalink | Comments (8)

Tuesday, August 29, 2017

Supreme Court of Wyoming Finds Self-Defense Isn't a Defense to a Felony Murder Charge

A defendant meets with a victim and arranges to purchase an "eight ball” of methamphetamine." The defendant gives the victim some money for the purchase and waits to hear from him. Later that evening, the defendant goes to the victim's home to acquire the methamphetamine. A surveillance camera recording reveals that the defendant approached the victim's truck and began searching the vehicle. The victim then appeared in front of his home holding a hatchet and discovered the defendant inside his truck. The victim approached the driver's side door and attempted to open it, but it was locked. The defendant opened the passenger door and exited the vehicle. The victim went around the back of the truck and approached the defendant at the passenger door, holding the hatchet. The defendant then jumped back into the truck, picked up a knife, and fatally stabbed the victim in the ensuing scuffle. 

The defendant is charged with felony aggravated burglary and felony murder. Can the defendant claim self-defense? This was the question of first impression addressed by the Supreme Court of Wyoming in Schnitker v. State, 2017 WL 3614047 (Wyo. 2017).

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August 29, 2017 | Permalink | Comments (1)

Thursday, August 24, 2017

Supreme Court of Minnesota Finds Rules of Evidence Apply to Restitution Hearings

Do the rules of evidence apply at restitution hearings? According to the Respondent's Brief in State v. Willis, 2016 WL 9115484 (Minn. 2016), many states answer this question in the affirmative:

See, e.g., People v. Matzke, 842 N.W.2d 557, 559-60 (Mich. Ct. App. 2013); In re Delric H., 819 A.2d 1117, 1125 (Md. Ct. App. 2003) (noting that many states, including Alabama, Indiana, Kansas, New Mexico, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington and Wisconsin either complete dispense with, or relax, the rules of evidence in restitution hearings).

The Supreme Court of Minnesota, however, decided to go in a different direction.

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August 24, 2017 | Permalink | Comments (0)

Saturday, August 19, 2017

Florida Murder Trial Reveals Different Test For Impeaching Witnesses With Remote Convictions

Federal Rule of Evidence 609(b) provides as follows:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

As the recent opinion of the District Court of Appeals of Florida, First District, in Nehring v. State, 2017 WL 3361068 (Fla.App. 2017), makes clear, however, Florida has a very different rule.

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August 19, 2017 | Permalink | Comments (2)

Tuesday, August 15, 2017

If Track Practice Started at 4:00 P.M., Does it Matter Whether Adnan Was on Time for Practice?

Recently, an Undisclosed listener asked me an interesting question: If track practice started at 4:00 P.M., does it matter whether Adnan was on time for practice? This question, of course, relates to the notes from the police interview of track coach Michael Sye. Those notes indicate that Sye remembered a day toward the end of Ramdan when Adnan arrived on time for track practice that was held outside because it was the rare January day when the temperature was in the 50's. As Susan Simpson has noted, this day only could have been January 13, 1999, the day that Hae disappeared.

Of course, if track practice started at 3:30 P.M., Adnan arriving on time would be huge because it would mean that, inter alia, (1) he couldn't have made the 3:32 P.M. Nisha call; and (2) there's a very short window during which Adnan could have committed the murder and gotten back to school in time to be at track practice. But does Adnan's timely arrival at practice matter if practice started at 4:00 P.M.? I think the answer is "yes" for a few reasons. 

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August 15, 2017 | Permalink | Comments (15)

Thursday, August 10, 2017

Should a Sequestration Order Prevent a Victim-Witness From Conferring With a Victim-Witness Specialist?

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.

Facially, then, Rule 615 is a rule of courtroom sequestration. If Elaine and Felicia are eyewitnesses to a murder and witnesses against the defendant at trial, defense counsel can move to have Elaine excluded from the courtroom when Felicia testifies and vice versa. The concern here is that a later witness might hear the testimony of an earlier witness and, consciously or unconsciously, tailor her testimony to the testimony of the earlier witness (e.g., Felicia might plan on saying that the day of the murder was a sunny day before hearing Elaine testify that it was a cloudy day).

Judges often expand the scope of sequestration under Rule 615. For instance, in United States v. Smith, 2017 WL 3393934 (6th Cir. 2017), the judge issed a "courtroom procedures and decorum" order under Rule 615, which stated that

[i]f witnesses are sequestered, counsel must assure that each witness called...understands that (s)he may not discuss the testimony (s)he expects to give or has given in the matter before the court...[and] should anyone attempt to discuss the testimony (s)he has given or expects to give...(s)he may not engage in such discussion.

So, what happens when a witness violates such an order by speaking to a victim-witness specialist?

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August 10, 2017 | Permalink | Comments (3)

Saturday, July 29, 2017

Nevada Case Makes Clear That Rules of Evidence Aren't Rules of DIscovery

The recent opinion of the United States District Court for the District of Nevada in Caballero v. Bodega Latino Corporation d/b/a El Super, 2017 WL 3174931 (D. Nevada 2017), is the latest illustration that the rules of evidence are not rules of discovery.*

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July 29, 2017 | Permalink | Comments (1)

Thursday, July 20, 2017

Supreme Court of Oregon Uses Constitutional Contract Analysis to Create Default Rule for Plea Deals

Recently, I posted the draft my new article, Plea Agreements as Constitutional Contracts, on SSRN. About a week later, the Supreme Court issued its opinion in State v. King, 2017 WL 2982135 (Or. 2017). In that opinion, Oregon's highest court might have given the clearest articulation yet of the theory of plea agreements as constitutional contracts.

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July 20, 2017 | Permalink | Comments (1)

Tuesday, July 18, 2017

Should a Defendant Be Allowed to Submit a Vocal Exemplar Without Subjecting Himself to Cross-Examination?

Today, the Missouri Court of Appeals, Western District, issued an interesting opinion in State v. Watt, 2017 WL 3026766 (Mo.App.W.D. 2017). In Watt,  Pharis Watt was convicted of driving while intoxicated. At trial, the prosecution introduced videotape evidence of Watt's conduct after being pulled over on the night in question. In response,

Watt's counsel sought to present demonstrative evidence in the form of a voice exemplar by having Watt read aloud to the jury one of his own statements from the videotape evidence, introduced during the State's case-in-chief, for the purpose of allowing the jury to assess whether Watt's speech pattern presented on the videotape should be considered as evidence of intoxication as opposed to simply his normal speaking style. Watt specifically sought a ruling that he be allowed to do so without cross-examination, claiming that the evidence would be demonstrative, rather than testimonial.

The court, however, precluded the admission of this evidence, and Watt was eventually convicted.

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July 18, 2017 | Permalink | Comments (3)

Friday, July 14, 2017

Are Juvenile Nonhomicide Sentences That Exceed Life Expectancy Cruel and Unusual?

In Graham v. Florida, the United States Supreme Court concluded that the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Prior to Tuesday, seventeen state supreme courts have addressed a related issue: Does the Eighth Amendment permit a juvenile offender in a nonhomicide case to be sentenced to multiple fixed-term periods that, in the aggregate, total more than his life expectancy. In Tuesday, the Supreme Court of Missouri became the eighteenth state supreme court to address the issue. How did it rule?

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July 14, 2017 | Permalink | Comments (3)

Thursday, July 13, 2017

When is a Declarant "Unavailable" for Hearsay Purposes Due to Mental Illness?

Like its federal counterpart, Idaho Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for former testimony by an "unavailable" declarant. And, like its federal counterpart, Idaho Rule of Evidence 804(a)(4) states that a declarant is "unavailable" if he "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Obviously, if a declarant is deceased, he is unavailable. And, obviously, if the declarant has a severe ailment such as the flu that is expected to exceed the duration of the trial, he is "unavailable." But when is a declarant "unavailable" due to mental illness? That was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 2952458 (Idaho 2017).

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July 13, 2017 | Permalink | Comments (2)

Wednesday, July 12, 2017

5th Circuit Finds No Ground for Relief Against Bite Mark Experts Who Testified at Trials of Men Who Were Later Exonerated

Bite mark comparison/analysis is a largely discredited forensic science field. In its report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, the President’s Council of Advisors on Science and Technology noted that "studies reported in 2009 and 2010 on bitemark evidence...found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter." Does that mean that exonerates should be able to bring civil lawsuits against bite mark experts who testified against them at trial? According to the recent opinion of the Fifth Circuit in Brewer v. Hayne, 2017 WL 2784155 (5th Cir. 2017), the answer is (usually) "no."

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July 12, 2017 | Permalink | Comments (1)

Friday, July 7, 2017

How the "One Juror" Standard Could Lead to Adnan Syed Getting a New Trial

Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:

27 - 24

The answer to this question could very well answer the question of whether Adnan Syed will get a new trial. 

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July 7, 2017 | Permalink | Comments (8)

Wednesday, July 5, 2017

My New Article: "Plea Agreements as Constitutional Contracts"

Today, I posted the working draft of my new article, Plea Agreements as Constitutional Contracts, on SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause. This Article then argues that incorporation of one of these protections—the implied covenant of good faith and fair dealing—would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts: (1) substantial assistance motions; (2) Brady disclosures; and (3) prosecutorial presentation of sentencing recommendations.

Any feedback/comments would be appreciated.


July 5, 2017 | Permalink | Comments (4)

Friday, June 30, 2017

Maryland Court Finds Evidence & Testimony Related to Cell Tower Drive Test Unreliable and Inadmissible

Two days ago, the Court of Special Appeals of Maryland issued an interesting opinion in Phillips v. State. In Phillips, Bashunn Phillips was charged with the first-degree murder of Shar-Ron Mason and related crimes. 

The State notified Phillips that it intended to offer at trial a radio frequency (“RF”) signal propagation map purporting to establish the approximate location of Phillips’s phone on the morning of December 10, 2013 [the day of the murder]. The propagation map represented data obtained through a drive test conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation’s Cellular Analysis and Survey Team, on October 23, 2014.

In response, Phillips filed a motion in limine, "seeking to exclude the RF signal propagation map and related testimony."

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June 30, 2017 | Permalink | Comments (7)

Tuesday, June 27, 2017

Oral Arguments in the Adnan Syed Case & Another Reason the 3:15 P.M. Call Doesn't Work

Throughout the appeal in the Adnan Syed case, the State has claimed that the prosecution's argument at trial that Adnan Syed killed Hae Min Lee by 2:36 P.M. was just its "best" theory of the case and that it just as easily could have argued a different theory of the case. The only alternate theory of the case that it has advanced, however, is that the 3:15 P.M. call on Adnan's call log was the "come and get me" call as opposed to the 2:36 P.M. call. Judge Welch, of course, refuted this argument in footnote 9 of his opinion granting a new trial based upon the number of events in Jay's narrative between the "come and get me" call and the 3:21 P.M. call he made to Jenn, ostensibly to look for Patrick. Until re-listening to the oral arguments in the case today, however, I hadn't noticed an even bigger problem for the State.

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June 27, 2017 | Permalink | Comments (19)