In a later post, I plan on expanding further on Adnan’s cell phone records and the related witness testimony, and discussing what we can reconstruct about Hae’s murder from the existing evidence. This post, however, is not about the evidence that we have. It’s about the evidence that we don’t have — and that’s evidence that Jay is telling the truth about Adnan’s involvement in Hae’s death.
Now, it’s possible that Adnan is still guilty of Hae’s murder, and that the state managed to get the right guy, even if they didn’t have much to go on. Possible. The fact that Jay is a completely incredible witness is not evidence that Adnan is innocent. But that doesn’t change the fact that the state’s evidence was based entirely on the uncorroborated testimony of a self-acknowledged liar with a motive to falsely incriminate Adnan.
The state has itself acknowledged that Jay was the alpha and the omega of its case against Adnan. At trial, the prosecutor told the jury, “Let’s talk about Jay [ ] because, clearly, this case hinges on his testimony” (Brief of Appellant at 40). But while the prosecution then went on to continually assert, at every opportunity, that Jay was a “credible” witness, there was simply no objective basis for believing that Jay was likely to tell the truth when he testified at Adnan’s trial.
I’m not trying to be hyperbolic here, or to exaggerate for effect. I know that’s a pretty expansive claim to make. But it also happens to be accurate. We know that Jay had every motivation to lie and no motivation to the tell the truth; had a demonstrated history of lying when it was to his own advantage; and lacked corroborating evidence in support of his claims. Even assuming that Adnan is guilty of Hae’s murder, there was still no objective reason to find Jay’s testimony on that point to be credible.
How can a thing like that be evaluated? Well, the credibility of a witness’s testimony — that is, roughly speaking, the testimony’s evidentiary value — is judged in reference to four basic factors. Those factors are sometimes formulated in different ways, or split into additional categories, but they can be summarized as the following:
- Inherent Credibility. A witness’s general character for truthfulness and honesty.
- Bias or Interest. A witness’s motive to lie in a particular circumstance.
- Inconsistent Statements. Whether a witness’s statements have been internally consistent.
- Corroboration by Other Evidence. A witness’s credibility is enhanced when his testimony matches known evidence.
With those factors in mind, how does Jay’s testimony stack up?
The Witness’s Inherent Credibility
Some witnesses have inherent credibility. Call it demeanor, call it character, whatever, but the factfinder in a trial is entitled to conclude that a witness is simply not the type of person who would lie, and credit their testimony based on that alone. Personally, I think this is the most useless way to evaluate testimony, because humans just aren’t natural polygraph machines — as a general rule, we’re really bad at this. Juries always overestimate their own ability to distinguish the liars from the truth tellers simply by observing them.
But sometimes, it is very easy to make an assessment of a witness’s inherent credibility. And that is when a witness informs you that he has none.
Jay is that witness.
Jay told the police and the jury, again and again, that he was willing to lie in order to avoid criminal punishment. He was not shy about this fact. Ask Jay why he lies, and he’ll tell you: he lies because he didn’t want to get in trouble.
For instance, in Jay’s third police statement, he gave a completely different story than he had give in his first two statements. And when the cops asked why he has not told the truth before, Jay “admitted that he lied on the two previous occasions to cover up the fact that he bought and sold marijuana” (Appellant’s Brief at 12).
And in one of Jay’s first two interviews, a detective asked Jay “what [Adnan] ha[d] over [him],” and noted that he could not understand why Jay would have voluntarily helped cover up Hae’s murder unless Adnan had some sort of leverage. Jay responded,
“Like I said, he knows I sold drugs, I mean . . . that was, I mean, that’s . . . he could get me locked up for that, I mean.” (Episode 4.)
In Jay’s second interview — which, again, was radically different from what was said in his first interview, and also radically different from what he would later say in his third — Detective MacGillivary pointed out all of the known lies that Jay had told so far, and asked Jay why he had not simply told them the truth during his first interview. The following exchange occurred:
Detective: “Why did you lie about the location [where Hae was killed]?”
Jay: “Uh, I figured there was cameras there or somebody had spotted him doing what he was doing.”
Detective: “But if you actually didn’t assist with her murder . . .”
Jay: “But I’m associated. I’m associated.” (Episode 4.)
Ignoring the truthful response that Jay’s answer inadvertently contains (that Jay lied because he was concerned there would be video footage showing who committed the murder), we have yet another example of Jay fully disclosing to the police that when he believes the truth will get him in trouble, he is going to lie instead.
And if Jay is willing to repeatedly lie to the cops in order to avoid getting in trouble for buying and selling pot, why on earth would he not also be willing to lie in order to avoid getting in trouble for murder?
The Witness’s Bias or Self-Interest
A witness’s credibility is affected by the witness’s “biases, prejudices, or ulterior motives . . . as they may relate directly to issues or personalities in the case at hand.” Davis v. Alaska, 415 U.S. 308 (1974). Bias exists when there is a “relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party,” and biased “may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.” United States v. Abel, 469 U.S. 45 (1984).
Does Jay have a bias which might lead him to slant his testimony against Adnan? Well, since not testifying against Adnan could very well have resulted in Jay serving the life-plus-thirty sentence that Adnan got, I’m going to say yes, he did in fact have a bias that might cause him to not tell the truth about Hae’s murder.
It was obvious to Jay that the police were looking at him as a possible suspect. Jenn had already told the cops that Jay was throwing away shovels and clothes after Adnan had, supposedly, disposed of Hae’s body by himself — and the cops knew, even if Jenn didn’t, that Jay’s story about not being involved in the burial was utter horseshit. So Jay’s claims about not being involved at all in Hae’s death were not going to get him very far. That cat was already out of the bag, because the police knew he had at least helped bury the body. And Jay had a very strong self-interest in making sure that the police believed his involvement went no further than that.
Jay also knew that the cops were running with the theory that Adnan had done it — after all, that’s why they pulled Adnan’s cell phone records. And Adnan being responsible matched the story that Jenn had already given them, via Jay’s previous statements to her. At that moment, regardless of whether Adnan was guilty or innocent, Jay had every reason in the world to say, “Yep, Adnan did it. He told me he did it. He forced me to help bury the body. If you’re looking for the murderer, he’s your man.”
But it gets worse. Once Jay’s plea agreement was in place, Jay’s motive to lie only increased. The plea agreement provided, at Sec. 1(a),
The Defendant represents that he/she has fully and truthfully responded to all questions put to Defendant by law enforcement authorities during all prior interviews. If at any point it becomes evident the Defendant has not been truthful concerning his involvement in this incident, the State is immediately released from any obligation under this agreement, the agreement becomes null and void, and the State is free to bring any charge against the Defendant supported by the evidence. The Defendant shall continue to cooperate fully with the State by providing full, complete and candid information concerning the murder of Hae Min Lee of which Defendant has knowledge.
So Jay “represent[ed] that he[ ] has fully and truthfully responded . . . during all prior interviews”? Well, shoot. That’s not good for Jay. He has already admitted that he lied in every single interview he gave. And, “[i]f at any point it becomes evident [Jay] has not been truthful concerning his involvement in this incident, . . . the agreement becomes null and void”? Hmm, that’s not good for Jay either. Since Jay definitely was not truthful in his police statements, he might reasonably think the state could void his agreement at any time. That’s a pretty tenuous position for anyone to be in — what was Jay supposed to do? “The Defendant shall continue to cooperate fully with the State by providing full, complete and candid information concerning the murder of Hae Min Lee. . .” Ah-ha, there we go. There’s something Jay can work with. “Cooperate fully.” In other words: Jay would not be crazy for thinking that if he did not “cooperate fully” with the state — by testifying to what he knew they wanted to hear — then he would be facing a lot of jail time.
Is anyone surprised that Jay did go on and testify exactly as the state wanted him to? At trial, he told a new version of his story — one that he had never told in any of the prior police interviews, but which was selectively woven together from the most believable portions of his prior statements. And following Adnan’s trial, he was given a sentence that let him avoid spending so much as a day in prison.
The Witness’s Consistent or Inconsistent Statements
When a witness’s testimony at trial is either internally inconsistent, or inconsistent with the witness’s prior statements, the factfinder is left with a question. Was the witness lying a trial, and telling the truth before? Was he lying before, and telling the truth now? Or did the witness just lie both times? Are the witness’s inconsistencies a result of the witness deliberately changing his story, or are they a result of the witness not being able to remember what he had said in his previous stories?
All of these questions raise serious doubts as to the credibility as the witness’s testimony. And particularly where a key witness did himself have the opportunity to actually be the perpetrator of a crime, the fact that the witness’s “statements to the police were replete with inconsistencies [ ] would . . . allow[ ] the jury to infer that [the witness] was anxious to see [the defendant] arrested for [the victim’s] murder. ” Kyles v. Whitley, 514 U.S. 419 (1995).
So how does Jay stack up in terms of consistency? To hear the state tell it, Jay is a daggum straight-shooter who sticks by his word. During opening arguments, the prosecutor told the jury,
“The main plot points in Jay’s story have been consistent. He tells them that consistently, Jay ‘has always given the same story about what the defendant did where. Consistently, he tells Jennifer a consistent story, he tells police a consistent story about the defendant, he tells consistently the defendant’s involvement, the defendant’s actions on that day. He has never wavered on that point.’” (Episode 5.)
On the podcast, after quoting this portion of the prosecutor’s opening argument, Koenig makes the following remark:
That is a lot of consistently-s and while, maybe it’s not great oratory, it does have the advantage of being true. In Jay’s statements, while the particulars shifted, the spine of his story did not.” (Episode 5.)
Wait, what? Jay tells a “consistent” story? Jay has been “consistent” on the main points?
Koenig keeps using that word. I don’t think it means what she thinks it means.
Both the prosecutor and Koenig seem to think Jay has earned the distinction of being “consistent” because Jay has been consistent about the fact that Hae was murdered and that Adnan is the one who did it. Okay yes, it is true, Jay’s stories have been completely consistent on those points. But that’s not the kind of “consistency” that makes a witness’s testimony credible.
Let’s review some of the things that Jay has not been consistent about. But keep in mind — I don’t have access to the full police statements or the trial transcripts. I have only seen the bits that were deemed interesting enough to make it onto the show or the appellate briefs. And when a witness is lying, it is often in the boring questions, in the innocuous minutiae, that a witness’s lies start falling apart. It’s not so hard to remember one big story, but it’s awfully hard to remember all the practical details of an imaginary event. So whatever inconsistencies I have laid out here, I can promise that there are going to be a whole helluva lot more in the totality of the transcripts.
But just from the excerpts that are publicly available, the list of things Jay has been inconsistent about is already getting pretty dang impressive.
Reasons Why Adnan Killed Hae:
- Because “Hae made him mad” (trial testimony).
- Because Hae “had broken his heart” (Jay’s Second Interview).
- Because “Adnan confronted Hae about flirting with . . . a car salesman and when she called Adnan crazy, he snapped and strangled her” (Episode 8) (Jay’s Story to Chris).
Whether Adnan Planned Hae’s Murder in Advance:
- Yes (Jay’s Second Interview) (Adnan told Jay, “I think I’m going to kill her, yeah I’m going to kill her.”).
- No (Episode 8) (Adnan “snapped and strangled her.”).
Number of Times Adnan Told Jay That He Was Going to Kill Hae:
- Once (Trial Testimony).
- A lot (Jay’s Second Interview).
Number of Days Before Hae’s Murder That Adnan Told Jay He Was Going to Kill Her:
- Same day (Jay’s First Interview).
- One day (Jay’s Second Interview).
- Four to five days (Jay’s Second Interview).
When Does Adnan Ask Jay to Help Dispose of Hae’s Body:
- On the morning of January 12th, while he and Jay are shopping (Jay’s Second Interview) (Detective: “However, the whole purpose of him being with you that day was to ask you for your assistance?” Jay: “Yes.” Detective: “Of killing her?” Jay: “Yes, not some much in killing her, but in dispose.”).
- On the evening of January 12th, while he and Jay are talking on the phone (Jay’s Second Interview) (Detective: “What was that conversation. What made you think that ah, January the 13th, would be the day that Adnan would kill Hae?” Jay: “He told me um, that we’re gonna hook up the next day and that, he said, he said that’s what he said, I gonna do it, I’m gonna kill her.”).
- On the morning of January 13th, while he and Jay are shopping (Jay’s First Interview) (“On my birthday, on the evening of my birthday um Adnan called me and we chatted ah we made plans for the next day evening. That morning he called me and we took …. we were going to the Mall. He asked me if I could do him a favor.”).
- On the afternoon of January 13th, when he makes the “come-and-get-me” call (Jay’s Second Interview) (“[Adnan] never asked me until like, he asked me to come and get him. It’s wasn’t anything of disposing the body. He never asked me none of that until the actual day.”).
Whether Jay Tells Jenn that Adnan Had Plans to Kill Hae:
- Yes, on January 12th (Jay’s Second Interview) (“I told [Jenn] what the conversation me and Adnan had had earlier that day [about killing Hae]. And he reaction was just
about the same”).
- Yes, on January 13th, before going to pick up Adnan from Best Buy (Jay’s Second Interview) (Detective: “Jenn never really like Hae, correct?” Jay: “Yeah, I mean.” Detective: “So I mean, did she actually even care?” Jay: “Not really.”).
- No (Trial Testimony).
Places Where Adnan Killed Hae:
- In her car in the parking lot at the Best Buy (Jay’s Second Interview).
- In her car in the parking lot at the Woodlawn Library (Jay’s Story to Chris).
- Jay has no idea (Jay’s Story to Jenn).
- Patapsco State Park (Jay’s Third Interview).
Places Where Adnan Showed Hae’s Body to Jay:
- At Edmondson Avenue (Jay’s First Interview).
- At the Best Buy (Jay’s Second Interview).
- Never, Jay was with Adnan in Patapsco State Park when he killed her (Jay’s Third Interview).
- At Franklintown Road (Brief of Appellant at 12) (Detective MacGillivary testified “that [Jay] told him that [Adnan] showed him Hae’s body in the trunk on Franklintown Road”).
- At a pool hall in Catonsville (Episode 8) (“[Jay] was shooting pool, Adnan called him he was like ‘yo, I gotta talk to you,’ and he was like ‘yo I’m busy.’ ‘Yo, where are you’ and he told him where he was. Adnan showed up and he’s like ‘oh I gotta talk to you’ and he’s like– this was a little tug of war for a while and Adnan eventually convinced him to come outside with him and his car or, I.”).
- At a gas station (Jay’s Story to Tayyib).
- Outside of Jay’s grandmother’s house (Intercept Interview).
Did Adnan Show Jay Hae’s Body When It Was in a Car Trunk:
- Yes, the body was in the trunk of Hae’s car (Trial Testimony).
- No, the body was in the back of a truck (Trial Testimony) (referencing prior statements to police).
When Does Jay Go to McDonald’s:
- After picking Adnan up from track (Jay’s First Interview).
- While waiting for Adnan to come back from the Park’N’Ride with Hae’s car so they can bury the body (Episode 5).
When Does Jay Go to Patapsco State Park:
- After 2:15 p.m., to help Adnan kill and/or dispose of Hae, because “[Adnan] killed Hae in Patapsco State Park,” and “[Adnan] paid [Jay] to help” (Jay’s Third Interview).
- At 4:30 p.m., after ditching Hae’s car and after buying weed. Once there, while “standing . . . at this cliff and [Adnan] starts telling [Jay]about how it was when he killed her,” while they watch the “[s]un getting ready to hit mountain tops” (Episode 5). They are there for “[t]wenty minutes to a half an hour” (id.). (And yet somehow Adnan makes it back to Woodlawn in time for track.)
- After 6:30 p.m., after leaving Cathy’s and retrieving Hae’s car (Episode 5).
- Never (Trial Testimony).
Malls that Jay Says He Went Shopping at to Get a Present for Stephanie:
- Westview Mall (Jay’s First Interview).
- Security Square Mall (Jay’s Second Interview).
People Who Smoke Weed After Ditching Hae’s Car:
- Jay and Adnan (Trial Testimony from First Trial).
- Just Jay (Trial Testimony from Second Trial).
Person Who Drives Adnan’s Car to the Park’n’Ride After the Police Call Adnan to Ask About Hae:
- Jay (Jay’s First Interview) (“[Adnan] said take him back to the Park and Ride, I took
him back to the Park and Ride um he told me follow him, drove me all around inaudible“).
- Adnan (Jay’s Second interview) (Detective: “And you get back in the car?” Jay: “Yes we get back in his car, he’s driving.” Detective: “And were do you go?” Jay: “We go back to 70 Parking Ride.”).
Time that Hae Was Buried in Leakin Park:
- Around 7:00 p.m. (Jay’s First and Second Interviews and Trial Testimony).
- Midnight (Intercept Interview).
People Who Dug Hae’s Grave:
- Just Adnan (Jay’s First Interview).
- Adnan and Jay (Jay’s Second Interview).
Number of Shovels Used to Bury Hae:
- One shovel (Jay’s First Interview) (“Um, you guys might be able to find some dirt in [Adnan’s] car . . .[f]rom both of our[ shoes], a shovel was in there to.”).
- Two shovels (Jay’s Second Interview) (“There’s two shovels that are kept with tools next to my porch. . . Um, he grabs the shovels and says we have to get rid of the body.”).
Where the Shovel(s) Used to Bury Hae Were Thrown Away:
- Super Fresh (Trial Testimony).
- Westview Mall (Jay’s Story to Jenn).
Where Jay’s Clothes and Boots Were Thrown Away:
- At Jay’s house, on the night of the murder (Jay’s First Interview).
- At the F&M, on the night of Jay’s murder, except for his boots, which were thrown away at Jay’s house on the day following the murder (Jay’s Second Interview).
- At the Super Fresh, on the night of Jay’s murder (Appellant’s Brief at 10).
Where Jenn Picked Up Jay After Hae’s Body Was Buried:
- At Jay’s home, where Adnan had dropped him off (Trial Testimony).
- At Westview Mall in front of Value City (Int.2 at 58-59) (discussing statements made in first interview).
- Other places (Trial Testimony) (noting that “[Jay] told the police different stories about where Jenn picked himup on January 13”).
Where Adnan Removed Hae’s Belongings from Her Car and Put Them in His Car:
- At the I-70 Park’n’Ride (Jay’s Second Interview) (“We went to the Route 70 parking lot . . . he got out of the car and proceeded to go through the trunk and the back seat and ah, several items he picked up . . . And then he came over to his car, um, told me to pop the trunk. I popped the trunk, he placed a whole bunch of items in the trunk. . . Um, I know one of them to be his track bag. It’s a black bag with ah, white writing on it. The other look like a book bag, a black book bag with a brown bottom and ah, like her keys, um, and her wallet”).
- At Edmondson Avenue, after ditching Hae’s car (Jay’s Second Interview) (“Um, oh he stops and he digs in [Hae’s] car some I don’t know what he was getting, he dug in the car some more, parked it, took the keys with him and came and got in the other car . . . Um, the only items I definite that were hers that he had, he had her wallet with all of her, all of her identification, um credit cards, all that, her keys definite.”); (Jay’s First Interview) (“After he moved [Hae’s car] to the second spot [off Edmondson] then he got out [her] car and acted like he was carrying her purse and her wallet [and her book bag] and he had some other stuff in his hand and ah.”).
Number of Times Jay Goes to Cathy’s House That Day:
- Zero times (Jay’s First Interview).
- Three times (Jay’s Second Interview).
Does Adnan Threaten to Have a “West Side Hit Man” Kill Jay:
- Yes (Jay’s First Interview).
- No (All Other statements).
Times That Jay Promised He Is Telling The Truth But Later Admits He Was Lying:
- Jay’s First Interview (Jay: “I was as honest as I possibly can remember – I mean, truthfully honest.”).
- Jay’s Second Interview (Detective: “The taped interview that you’ve given us right now – is that the truth?” Jay: “To the best that I can possibly, humanly at this point and time remember. That is the truth.”)
- Jay’s Third Interview (“[Jay] gave a third statement on April 13, 1999, and admitted that he lied on the two previous occasions to cover up the fact that he bought and sold marijuana.”) (CoSA Opinion at 6-7).
And that’s just the tip of the iceberg. But you know what? All of those inconsistencies are irrelevant, compared to this final one:
Number of Pretrial Statements in Which Jay Lied to the Police:
- All of them. (Brief of Appellant at 40) (“It was not contested [at trial] that [Jay] had lied in every pretrial statement he gave to the police.”).
Keep in mind, there were at least four of these pretrial statements: the February 28, 1999 interview; the March 15, 1999 interview; the March 18, 1999 written itinerary; and the April 13, 1999 interview. And Jay gave different stories in all of them. Not to mention that he later gave a completely new story still, in his testimony at trial.
In fact, on the day of Jay’s first interview with the police, he gave at least two entirely different stories. The first story, which was not tape recorded, was wholly different from the taped interview, and according to a detective, it had “a lot of inconsistencies. . . too many to go over”:
Detective: Prior to us turning the tape on – we had a conversation with you.
Detective: And during that conversation we spoke probably for about a half hour, forty-five minutes, the information that you provided during this interview was it the same information that you provided during the first interview?
Detective: During the first interview there were a lot of inconsistencies.
Detective: And there are too many to go over but you kind of disassociated yourself from all the information you provided in this interview. Why is that?
Detective: All the information you provided during this interview has it been the complete truth?
Jay: To the best of my knowledge. (Int.1, at 24-25.)
So right off the bat, Jay’s stories are wildly inconsistent — both internally inconsistent, and inconsistent with statements that he makes at later times. In fact, throughout all of Jay’s stories, only the following facts remain consistent: (1) Adnan killed Hae sometime in the afternoon of January 13, 1999; (2) Jay was at Jenn’s house until 3:40 p.m.; (3) Hae’s car was initially ditched at the Park’n’Ride; (4) Adnan went to track practice that day; and (5) she was later buried in Leakin Park. Nothing else stays the same.
Corroboration of the Witness’s Testimony By Other Evidence
A witness’s testimony may be shown credible, even if that witness does not have inherently credibility, is biased, or has given inconsistent statements, when his testimony is nevertheless corroborated by other evidence. However, in order for evidence to be corroborative — that is, to be able to demonstrate that a witness was telling the truth — the evidence must have come from a source that is independent of the witness’s testimony. When such corroborative evidence does exist, that corroboration is objective evidence from which it can be concluded that the witness was likely to be telling the truth — at least in that particular aspect of his testimony.
Jay’s testimony was in fact corroborated in significant respects:
- Jay’s testimony that he buried Hae was corroborated by the fact he knew where she was buried, and how she was positioned in the grave.
- Jay’s testimony that he ditched Hae’s car was corroborated by the fact that he knew where her car had been left.
So even though Jay is not a credible witness, we can, with a fair amount of confidence, credit those two major portions of his testimony, as they could be verified by independent and external evidence (i.e., Jay’s story about the burial did in fact match what police discovered at the scene, Jay’s story about the car was true because he did in fact lead the police to it). As a result, Jay’s involvement in both the burial and disposing of the car are about the most solidly confirmed facts that we have in this case.
But even if Jay’s testimony is corroborated in those respects, that does not mean his testimony provides credible evidence against Adnan. Because even though Jay’s testimony is corroborated as to his involvement in Hae’s murder, his testimony is not corroborated as to Adnan’s involvement in the murder.
Not a single claim that Jay has made about Adnan’s culpability for Hae’s murder can be verified by independent and external evidence. Not the time that Adnan allegedly called Jay for a ride after killing Hae (there’s no 3:45 p.m. incoming call), not that Adnan was in Leakin Park on the night of Hae’s murder (cell records show no calls to Adnan’s friends from 7 p.m. to 9 p.m.), not that Adnan buried Hae’s body (no physical evidence at crime scene), and not that Adnan had any contact whatsoever with Hae after 2:15 p.m. that day (no witnesses or physical evidence that Hae and Adnan were ever in contact after school let out).
Although the state claimed that Jay’s testimony was corroborated by Adnan’s cell phone records, this is not the case. Because in order to be corroborative, evidence must not only be consistent with a witness’s testimony, it must also be independent of it. Jay’s testimony at trial may have had some demonstrable consistencies with the cell phone records (although there were still mountains of inconsistencies between his story and the records, even at trial), but the cell phone records were not corroborative, because they were not independent from that testimony.
First, as a simple matter of math, the more stories that a witness tells, the more likely it becomes that the witness will have told a story that actually matches up with the truth. For example, if a witness is asked to identify the make of a defendant’s getaway vehicle, and says, “Hyundai, Ford, Jeep, Tesla, Lamborghini,” then that witness’s testimony about seeing the car drive away from the crime scene cannot be said to have been “corroborated” if it later turns out that the car was, in fact, a Ford.
That’s what happened here with Jay’s police statements. He gave details about Hae’s murder — lots of details. And while most of his stories were clearly fabrications, some of the bits and pieces that he told to the cops were not so obviously false. For example, Jay told one friend that the murder happened in Catonsville, told another friend that the murder happened at Best Buy, and told the cops that the murder happened at Edmondson Avenue. But which is the “true” answer? Well, the cell phone records show that two of those stories can’t be true, but they don’t disprove the Best Buy story. So the cops went with that, because hey, it’s confirmed by the evidence, isn’t it?
This method of developing Jay’s story left the prosecution with a lot of options to choose from, when it came to figuring out what their star witness was going to be bound by his plea bargain to say at trial. In making it’s case against Adnan, the state could rummage through Jay’s testimony, take little from column A, take a little from column B, add in a little bit of totally new stuff, and voila — they’ve got testimony which sort of matches the physical evidence and communications data! Or, at least, which can’t as easily be shown to have been a blatant lie.
But it gets worse than that. Jay did not just have an opportunity to make lots of guesses, and then pick and choose from those guesses later when developing his trial testimony. Jay was actually permitted to make statements that were based on the investigator’s independent evidence of what had occurred on that day:
“[Detective] MacGillivary interviewed [Jay] a second time on March 15, 1999, with [Adnan’s] cell phone records, and noticed that [Jay] statement did not match up to the records. Once confronted with the cell phone records, [Jay] ‘remembered things a lot better.'” (Brief of Appellant at 11.)
In order for evidence to corroborate a witness’s story — that is, to demonstrate that a witness was telling the truth — the corroborating evidence has to come from an independent source. But when a witness’s story is created by using the “corroborating” evidence as a reference, then that evidence doesn’t prove anything about the veracity of the witness’s account. Because, as should be self-evident, if you tell a witness, “I know your story is a lie if you tell me you did something other than ‘XYZ,'” and the witness then tells you, “I did ‘XYZ,'” that’s not evidence that the witness is telling the truth. It’s just evidence that the witness is not a complete idiot.
Here, Jay was told what portions of his story were contradicted by the cell phone records, and also why those portions were contradicted. For instance, when Jay claimed, on March 18th, that he and Adnan had called Patrick to buy weed immediately after ditching Hae’s car at the Park’n’Ride, Jay was confronted by the police with the fact that his story could not be true, because he had made a call to Jenn at 3:21 p.m., before ever calling Patrick to “look for weed” (Episode 5). So by the time trial comes around, Jay has fixed his story: “oh, I was calling Jenn because I needed to find out if Patrick was home.”
By giving Jay at least four interviews and a ride-along, and by challenging Jay each time his story did not match the known evidence, the police informed Jay of what parts of his story they could disprove, and — just as significantly — they also implicitly told Jay which parts of his story they could not disprove. For instance, in the second interview, when questioning Jay about where Hae’s body was discovered, they (1) explicitly alerted Jay to the fact that another witness (Jenn) was giving a story that didn’t match his; and (2) implicitly alerted Jay to the fact that they had not discovered any evidence — such as security cameras — that could prove or disprove that the murder happened there.
So it’s no surprise that, as the investigation went on, and as Jay was interviewed more and more often, the story that Jay told began to fit the evidence “a lot better.” And the resulting consistencies between his story and the known facts are in no way evidence that Jay had finally decided to start telling the truth.
The ultimate question here is not whether or not we can determine if Jay is telling the truth about Adnan’s involvement in Hae’s murder. The question is whether Jay’s testimony is significant evidence of Adnan’s guilty.
And it is not. The testimony that Jay gave at Adnan’s trial can be equally explained by the theory that Adnan murdered Hae, or by the theory that which Jay murdered Hae without Adnan’s involvement. Because regardless of what actually happened, Jay could be expected to give the exact same testimony. Jay’s testimony therefore does not increase or decrease the probability that Adnan is actually guilty of Hae’s murder.