Evidence in the News

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Michael Peterson released - bloodstain evidence questioned
Posted: 12/17/2011

Michael Peterson was convicted for the murder of his wife Kathleen in North Carolina (and sentenced to death) eight years ago. There is a documentary about the crime/accident and the trial, entitled "The Staircase" because she was either pushed or fell down the staircase, depending upon whether you believe the prosecution or the defense.

Peterson was released today and will face another trial.


view article is also available free of charge on YouTube - in 14 parts.


view article trial, 65 witnesses testified and there were 800 pieces of evidence. The reason the conviction was overturned is because North Carolina Bureau of Investigation officer Duane Deaver "misled the jurors" about the bloodstain evidence. Deaver was recently fired and was found to have mishandled evidence in 34 criminal cases.

He is asserting what is now being referred to as the "owl theory." The defense theory is she was attacked in the house by an owl and fell down the stairs. An owl feather was found by the defense at the bottom of the stairs.

More coverage:

view article Deaver:

view article

Read more: Link to news story on Michael Peterson

Posted by Ann M. Murphy

Unavailability and the Sixth Amendment
Posted: 12/12/2011

Most of the Supreme Court's Sixth Amendment jurisprudence focuses on whether out-of-court statements are "testimonial." But today the Court addressed another facet of the Sixth Amendment: The steps that the prosecution must take to secure a witness's attendance before a court agrees that the witness is unavailable.

The Court's decision, Hardy v. Cross, reviewed a federal habeas petition filed by a state prisoner. Under the terms of the Antiterrorism and Effective Death Penalty Act of 1996, the Court only had to determine whether the state court reasonably applied the correct federal standard. In a unanimous, per curiam opinion, the Court readily determined that the state courts met that standard here.

The Supreme Court, however, took the opportunity to review the standard that governs unavailability under the Sixth Amendment. To fulfill that standard, the state must make a "good-faith" and "reasonable" effort to procure the witness's live testimony. The opinion also revisits the Court's previous decisions in this area, helping flesh out that standard.

Read more: Hardy v. Cross

Posted by Debby Merritt

Jury Public Pressure? JoAnn Chiakulas Eplains on "This American Life"
Posted: 12/11/2011

In another interesting "This American Life" piece (NPR), JoAnn Chiakulas the one "holdout" juror in former Illinois Governor Rod Blagojevich's FIRST trial explains her vote and her belief that jurors are pressured by the public to convict.

Blagojevich was retried and found guilty on 18 corruption counts. He recently received a 14-year sentence. See: view article

Read more: Link From This American Life "Last Man Standing"

Posted by Ann M. Murphy

Oral Argument on the Confrontation Clause
Posted: 12/7/2011

The Supreme Court heard oral argument yesterday in Williams v. Illinois, its latest confrontation clause case. In Williams the state offered testimony about a DNA match without presenting live testimony from any of the laboratory analysts who worked on one of the samples. Williams claims that practice violated his confrontation clause rights as elaborated in Crawford, Melendez-Diaz, and Bullcoming.

The oral argument was fierce, with the Justices talking almost as much as the lawyers. Justice Kennedy surprised many observers by appearing sympathetic to Williams's argument; Kennedy firmly dissented from the Court's earlier confrontation rulings. Even Justice Breyer, who expressed support for the state's position, suggested that a special historical exception might be necessary to uphold the state's approach.

The Court will decide the case by June but, based on the oral argument, the decision probably will yield multiple opinions. The Sixth Amendment remains as contentious as ever.

Read more: Transcript of Oral Argument

Posted by Debby Merritt

Six to Eight Accusers in Sandusky Case to Testify Before a Grand Jury on December 13
Posted: 12/6/2011

Another alleged victim has filed a complaint with state police against former Penn State coach Jerry Sandusky alleging sexual abuse. Sandusky's preliminary hearing is scheduled for Tuesday, December 13, 2011 and from eight (according to ABC News) to six (according to other news outlets) accusers will testify.

Joseph Amendola, Sandusky's attorney indicated that he is looking forward to the hearing so that he will see the accusers and they will be testifying under oath. He also indicated that the alleged victims must be called, as the police officers' statements would contain hearsay which would not be allowed under the evidence rules.

Amendola's assertion about the rules of hearsay in a preliminary hearing appears to be incorrect. See: Pennsylvania Code rule 542(E), available at: view article comments indicate the following: "Paragraph (E) was added to the rule in 2011 to clarify that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements enumerated in paragraph (E). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing. See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court."

Read more: Link to Story About Sandusky Preliminary Hearing

Posted by Ann M. Murphy

Drew Peterson Murder Trial - Illinois Supreme Court Sends Case Back to Appellate Court to Consider Merits - Hearsay, Confrontation, Prior Bad Acts
Posted: 12/5/2011

In a very interesting murder case, the Illinois Supreme Court has referred the Drew Peterson murder case back to the Illinois Appellate Court for a decision on the merits of motions filed in a case that raise hearsay, the Confrontation Clause, and prior bad acts issues. It is an excellent case to discuss in class.

Peterson is charged with the murder of his third wife (Kathleen) - her body was exhumed after his fourth wife (Stacy) disappeared. Peterson is quite a colorful figure who was formerly employed as a police officer.

The Appellate Court dismissed most of the State's arguments finding that it lacked jurisdiction because the State filed the papers out of time.

The Illinois Supreme Court Order is available here: view article (see case # 112875).

The Appellate Court Opinion is below - it was published on July 26, 2011. It is a fascinating case that has captured the attention of Chicago and the country.

Read more: Link to Illinois Appellate Court Order Affirming the District Court Rulings on Motions in Limine

Posted by Ann M. Murphy

Chickens in the Courtroom
Posted: 12/4/2011

NPR's "This American Life" has a wonderful courtroom story this week. Scharlette Holdman, a lawyer who represents death-row defendants, faced a state expert witness who was testifying about the mental competence of a low-IQ, schizophrenic defendant. The expert testified that the defendant was intelligent enough to understand why he was being executed. As evidence of the defendant's intelligence, the expert testified that she played tic-tac-toe with the defendant and he won.

Holdman then asked to introduce an eye-catching piece of demonstrative evidence: a chicken trained to play tic-tac-toe. Holdman imagined pitting the chicken against the expert in a game of tic-tac-toe on cross-examination but, assuming the judge would deny that motion, settled on a simpler strategy. She asked only to demonstrate the chicken's capabilities to the jury--with the obvious point that, although the chicken could play tic-tac-toe, it probably would not understand the reason behind any execution.

Alas, the judge denied the motion and Holdman wasn't able to bring the chicken into the courtroom. Talk about a judge "chickening out...."

Read more: This American Life: "Witness for the Barbecue-tion"

Posted by Debby Merritt

The Supreme Court on Harmless Error
Posted: 12/3/2011

The Supreme Court has agreed to hear a case challenging the way in which lower courts apply the harmless error standard in criminal cases. In Vasquez v. United States, the government offered hearsay evidence that the defendant's attorney had advised him to accept a plea bargain. The district court admitted this evidence for the truth of the matter asserted, a decision that a Seventh Circuit panel unanimously agreed was erroneous.

But the panel split over whether the error was harmless. A majority found that it was, focusing on the other evidence offered by the government. That evidence, the majority concluded, was sufficient to support the verdict.

Judge Hamilton dissented, urging that the court should have considered the impact of the erroneously admitted evidence on the rest of the government's case. An appellate court can't simply excise the offending evidence and weigh the rest, Judge Hamilton argued. Instead, the court must view the evidence as the jury did. Among other effects, the erroneously admitted evidence in this case undermined defense counsel's credibility; the appellate court should have considered this blow.

In his petition for certiorari, defense counsel suggested that lower courts vary widely in how they apply the clearly erroneous standard. There is no classic split, with circuits following clearly enunciated standards. Instead, counsel argued, the variation occurs unpredictably among panels of the same court--an even more harmful form of uncertainty.

The Court will hear the case later this Term, issuing an opinion by the end of June.

Read more: Case description and documents on SCOTUSblog

Posted by Debby Merritt

The Restyled Rules Are in Effect!
Posted: 12/1/2011

December 1 is here, and the restyled Federal Rules of Evidence have taken effect. Check our restyling documents for comparisons between the old rules and the new restyled ones. Over the next month, we will update PowerPoint slides and class materials to reflect language in the new rules; we didn't want to alter these until professors had finished the current semester.

Don't stay up too late celebrating at those rules restyling parties!

Posted by Debby Merritt

Merck Settlement with the Department of Justice (Vioxx) and the Challenges of Metadata
Posted: 11/30/2011

Ah what a little metadata slip-up can do. Merck recently settled a lawsuit with the U.S. Department of Justice for its drug Vioxx, for nearly one billion dollars. See: view article not the only reason for the settlement (Merck also marketed Vioxx for a use that had not yet been authorized by the FDA), in 2000 it deleted information about the heart attack risks of the drug. During a deposition in a civil case five years later, metadata was uncovered that indicated the company knew of the risk and had deleted that information from a medical journal article.

An interesting article on attorney duties with respect to metadata is available at:
view article Stored Information is Discussed in the book at p. 882.

Read more: Link to Interesting Opinion (Withdrawal of Order) by Judge Scheindlin on Metadata

Posted by Ann M. Murphy

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