Constitutional issues with hearsay

Question 1

under the confrontation clause, a hearsay statement will not be admitted, even if it falls within a hearsay exception, where:

Answer 1

(1) the statement is being offered against the accused in a criminal case

(2) the declarant is unavailable

(3) the statement was “testimonial”

AND

(4) the accused had no opportunity to cross examine the declarant’s testimonial statement prior to trial

Question 2

when does defendant forfeit right of confrontation

Answer 2

when defendant commits wrongful act intended to keep declarant from testifying

Question 3

what is a testimonial statement

Answer 3

“a statement about a past event or fact that the declarant would reasonably expect to be used later in a criminal prosecution”

INCLUDES

sworn testimony (grand jury, prior trial, preliminary hearing)

some statements to law enforcement

affidavits or written reports or certificates that summarize findings of forensic analysis and fave the effect of accusing a targeted individual of criminal conduct [fingerprints]

Question 4

to what extent are statements made to law enforcement “testimonial” for the purposes of the confrontation clause?

Answer 4

Whether a statement made in response to police interrogation is testimonial depends on its PRIMARY PURPOSE:

(1) primary purpose is to aid in ongoing emergency – NOT testimonial

Ex: 911 call during ongoing crime

(2) primary purpose is to provide information for later prosecution – testimonial

Question 5

due process rights – relationship with hearsay (Compulsory process)

Answer 5

Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process.

Question 6

to what extent can affidavits or written reports of forensic analysis be admitted against a criminal D?

Answer 6

cannot be admitted for its truth [under a hearsay exception] unless Defendant previously had app to cross examine the AUTHOR of the report

Question 7

how to determine whether an “ongoing emergency” existed at the time of interrogation? [so that it is not “testimonial” statement and can be admissible hearsay]

Answer 7

Relevant factors:
(1) nature of the dispute - public or private

(2) whether perpetrator is still at large

(3) scope of the threat to the victim and public

(4) type of weapon involved

Question 8

what is “information whose primary purpose is for later prosecution” [which is testimonial]

Answer 8

statements to police describing a crime after it has concluded

but NOT: child abuse victim statements to teachers about the abuse because the purpose of the conversation is to protect the child, not prosecution