Evidence Flashcards
Logical Relevance
Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence
Irrelevant evidence is inadmissible on its face
Relevant evidence may be admissible subject to other rules of Evidence
Limitations on Relevance
Logical relevance does not equal probative value (high relevant but low probative value)
Discretionary Exclusion - courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice
Public Policy Exclusions - inclusion would run counter to public policy considerations (e.g. evidence of liability insurance, subsequent remedial measures, etc)
Discretionary Exclusion of Relevant Evidence
A court may exclude logically relevant evidence if its probative value is substantially outweighed by the (1) danger of unfair prejudice, (2) confusion of issues,, (3) misleading the jury, (4) undue delay, or (5) waste of time. (BALANCING TEST)
Often arises w/ relation to Evidence that is:
(1) Emotionally disturbing
(2) Repetitive or confusing
(3) Admissible for one purpose but inadmissible for another
Exception: Impeachment evidence based on convictions for crimes involving false statements
Evidentiary Hearings
Courts may conduct a hearing on admissibility of evidence but must do so outside of the presence of the jury
Liability Insurance (Public Policy)
Evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
It is admissible to prove anything else (E.g. ownership, control, motive, etc)
Subsequent Remedial Measures (Public Policy)
Evidence of repairs or other remedial measures taken AFTER an injury is inadmissible to prove fault, defect, or inadequate warning
It is admissable to rebut a defense that there was no feasible precaution
Settlements, Offers to Settle, Plea Bargaining (Public Policy)
Civil - compromises, settlement offers, and related statements (including factual admissions) are inadmissible to prove liability or fault.
- Does not include statements made before the claim or threat of litigation was asserted
Criminal - pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt.
Payments or offers to pay Medical Expenses (Public Policy)
Inadmissible when offered to prove liability for injuries.
Related statements, including factual admissions, are admissible (i.e. “That was my fault, Can I pay your medical expenses”)
Prior Similar Occurrences
Evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant OR presenting an unfair risk of prejudice.
However, there are some admissible uses:
(1) Proving Causation
(2) Prior accidents demonstrating: (a) a pattern of fraudulent claims or (b) pre-existing conditions
(3) Intent or absence of mistake
(4) To rebut a defense of impossibility
(5) Value (e.g. simulation txns)
(6) Industry custom (e.g. to prove a standard of care)
(7) Business routine (e.g. to show that particular event occurred)
Habit
A person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion
To be admissible as “habit evidence”:
(1) The conduct must be HIGHLY SPECIFIC and FREQUENTLY REPEATED
(2) The court must look for regular, instinctive, habitual conduct
e.g. evidence that a person habitually goes down a particular stairwell two stairs a time could be admissible as circumstantial evidence that she did so at the time in question
Character Evidence
Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion.
Impeachment vs. character - admissibility restrictions are less stringent if the evidence being offered is to impeach rather than as substantive
Exceptions to Character Evidence Rule
Character at issue - character is an essential element of a claim or defense (e.g. defamation). Can be provided through opinion, reputation, or specific instances of conduct.
Prior acts of sexual assault or child molestation in cases for similar claims
Character Evidence in Criminal Cases (D)
D may introduce evidence of good character (which P can rebut) in criminal cases.
D’s evidence must be pertinent to the charged crime (e.g. peacefulness vs. violence or truthfulness vs. fraud) by calling a Witness to testify based on reputation or opinion (NOT SPECIFIC INSTANCES).
D opens the door to a P rebuttal.
Character Evidence in Criminal Cases (P)
P may not initiate introduction of character evidence about D except:
(1) D opens the door:
(a) May cross-ex D’s character witness including asking about knowledge of specific instances (impeach)
(b) May call a witness to testify to D’s bad character (limited to D’s character trait in question
(2) Sexual Assault/Child Molestation cases - evidence of other acts of sexual assault/child molestation
(3) D offers evidence of VICTIMS character - P can offer evidence that D has the same character
Direct - reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
Cross-reputation, opinion, and specific instances are admissible
Victims Character in Criminal Cases
Only D can “open the door” by introducing evidence of victim’s character to prove conduct
Homicide Cases - if D raises self-defense, D can offer evidence of V’s violence to show they attacked first (P would respond w/ evidence of peacefulness)
Rape Shield (Civil)
In sexual assault cases (criminal and civil) special rules limit D’s ability to present evidence of Victim’s character.
Civil - reputation. Opinion, specific instances admissible IF:
(1) Probative value substantially outweighs unfair prejudice; AND
(2) In the case of rep evidence, P puts her reputation at issue in some way
Rape Shield (Criminal)
Reputation and opinion evidence is inadmissible. Evidence offered to prove V’s sexual behavior or disposition is inadmissible.
EXCEPT: specific instances of victim’s sexual behavior are admissible to show:
(1) Third party source of DNA evidence, or
(2) Prior acts of consensual intercourse between V and D.
Parties must disclose intent to offer, describe purpose, and notify victim 14 days before trial.
Prior Bad Acts
In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e. action in conformity therewith), but admissible if independently relevant.
i.e. prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition.
EXCEPT: sexual assault/molestation cases.
Prior Bad Acts MIMIC
Common non-character uses of prior bad acts evidence that are admissible:
M - Motive
I - Intent
M - Mistake (I.e. absence of mistake, knowledge)
I - Identity (extremely similar or unique prior act)
C - Common plan or scheme
Subject to 403 balance
Impeachment Approach & Methods Overview
Impeachment casts an adverse reflection on the veracity of W’s testimony. Any party may impeach any W.
Methods:
(1) Contradiction
(2) Prior Inconsistent Statements
(3) Bias or Interest
(4) Sensory deficiencies
(5) Reputation and/or opinion of untruthfulness (extrinsic allowed)
(6) Prior acts of misconduct (extrinsic prohibited)
(7) Prior criminal conviction
Evidence supporting a witness’s credibility is inadmissible unless attacked. (Unless prior CONSISTENT statement made before motive to fabricate)
Extrinsic Evidence
Extrinsic evidence (i.e., any evidence other than W’s testimony at the current proceeding) may be used to impeach W, except on collateral matters.
Includes evidence of out-of-court prior inconsistent statements
Extrinsic evidence of contradictory facts is generally admissible to impeach W on material, non-collateral matters.
Collateral Matter
A fact not material to issues in the case.
Says nothing about W’s credibility; only used to contradict W. (e.g. W1 testifies he was headed to the store when he saw D commit murder; D cannot call W2 to testify that W1 was really headed to see his mistress because its not material to the issue of what the saw)
To determine if the evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?
Impeachment by Contradiction
any evidence may be used to show W has made contradictory statements on material issues
Impeachment by Prior Inconsistent Statements
W’s prior inconsistent statements may be used to impeach W’s present testimony
Establishing PIS - may be established through cross or extrinsic evidence (EE inadmissible if relates to collateral matter)
Foundation Requirement - W must have an opportunity to explain or deny the statement (not required for PIS by a hearsay declarant)
Prior Inconsistent Statements and Hearsay
If PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (i.e. to prove the truth of the matter asserted)
i.e. a hearsay PIS may only be considered for its bearing on W’s credibility
if the PIS is not hearsay or falls under a hearsay exemption/exception, it maybe considered for any purpose.
Impeachment by establishing bias
Established through cross or extrinsic evidence.
Foundation requirement - W must be questioned on cross regarding the facts that show bias or interest so that W has opportunity to explain or deny
Impeachment by prior instances of misconduct
W may be questioned on cross about any prior misconduct probative of truthfulness (i.e. lying or deceit)
Arrests =/= misconduct (must be an act of lying)
No extrinsic evidence is permitted. Attorney must accept W’s answers.
Impeachment based on opinion or reputation for untruthfulness
W may be impeached by testimony describing his reputation for untruthfulness in the community
Impeachment by Prior Conviction
Felonies not involving dishonesty/false statements:
If W is the D - admissible if the govt. shows probative value outweighs prejudicial effect
If W is non-D - admissible but court can exclude under 403 balancing
Misdemeanors are inadmissible unless it involves dishonesty / false statements.
impeachment by Prior Conviction Involving Acts of Dishonestly
Always admissible with no Court 403 discretion.
Acts of dishonesty - prior conviction required proof or admission of an act of dishonesty or false statement (i.e. perjury or fraud)
Impeachment by Prior Conviction more than 10 years old
NOT admissible unless probative value substantially outweighs unfair prejudice (inverse 403) and adverse party is given notice
10 year date is determined by either (1) date of conviction or (2) release from confinement which is later.
Witness Competency
Testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability. This is generally presumed.
The qualifications are as follows:
(1) Personal Knowledge (saw or heard)
(2) Memory (no amnesia)
(3) Communication (either directly or through interpreter)
(4) Sincerity (Under oath)
Diminution to any of the above makes W less persuasive.
Excluding Witnesses
Upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony.
Does not apply to parties or party reps (e.g. where party is a non-person entity)
Use of Documents by Witness (Present Recollection Refresh)
use of documents to refresh W’s memory during testimony is permitted.
(1) Anything can be used.
(2) W cannot read aloud from the document but can look at it briefly and then continue testimony unassisted.
(3) Opponent may inspect and offer into evidence anything used to refresh W’s memory
(4) Document is not read into evidence
Use of Documents by Witnesses (Recorded Recollection)
Contents of a record/document W previously made or adopted is read into evidence.
Requirements:
(1) W once had personal knowledge of the record’s subject matter
(2) W’s memory is insufficient to testify as to the record’s contents i.e. present recollection refreshed was ineffective
(3) Record was made or adopted by W when the matter was fresh in W’s memory; and
(4) Record accurately reflects W’s knowledge
Recorded Recollection is a hearsay exception; as such it may be admitted into evidence (unlike present recollection refreshed)
Form of Question Objections
(1) Calls for narrative - non-specific, open-ended question that allows W to tell a story rather than give specific testimony
(2) Leading - question itself suggests the answer; improper on direct unless W is hostile or an adverse party but acceptable on cross
(3) Assumes facts not in evidence - question makes an assumption which has not been established on the record
(4) Argumentative - not designed or intended to elicit relevant facts. Just an argumentative assertion
(5) Compound - question that asks more than one question at a time
(6) Beyond scope of direct - arises on cross. Must be confined.
Testimonial Objections
Unresponsive/nonresponsive - W’s testimony does not relate to or directly answer the question asked
Lay Opinions
Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion
Requirements:
(1) Rationally based on W’s perception
(2) Helpful to the trier of fact (i.e. gives jury more information regarding W’s perception)
(3) Not based on any scientific, technical, or other specialized knowledge
Examples of admissible lay opinions:
(1) Speed of a car
(2) Emotional state of someone
(3) Voice or handwriting recognition
(4) Sense recognition
(5) Intoxication
Expert Opinions
Experts may provide opinions on facts or issues in the case
Requirements
(1) Must be helpful to the trier of fact (i.e. specialized expert knowledge is used to reach conclusions avg juror would not reach alone)
(2) Expert is qualified (i.e. possess special knowledge, skill, experience, training, or education)
(3) Expert believes in her opinion with a reasonable degree of certainty
(4) Experts opinion is based on the facts (admitted evidence + personal knowledge + inadmissible evidence properly relied on)
(5) Reliable principals reasonably relied upon (i.e. is the science peer tested, published, low error rate, reasonably accepted in the field)
Experts may render an opinion on any ultimate legal issue but cannot give opinion to D’s mental state if its an element of a crime or defense
Testimonial Privileges
Fed. Courts recognize several testimonial privileges. State privileges rules apply in fed court based on diversity.
(1) Attorney-client
(2) Clergy-penitent
(3) Spousal
(4) Marital Comms
(5) Therapist-Patient
(6) Governmental
Self-Incrimination (Testimonial Privilege)
Under the 5th Amendment W cannot be compelled to provide self-incriminating testimony in either civil or criminal cases
W may invoke if there is any reasonable possibility of self incrimination
(1) Civil cases - Jury may draw adverse inference
(2) Criminal - D cannot be punished for invoking
Any answer suggesting testimonial privileges are a FRE are wrong.
Attorney-Client Privilege
Communications between an attorney and a client or client’s rep are privileged in all proceedings unless waived
Must be:
(1) Intended to be confidential and
(2) Made to facilitate legal services
Exceptions:
(1) Crime or Fraud - privilege does not apply if a client seeks legal services to aid in the planning or commission of a fraud or a crime
(2) Defense of Malpractice - does not apply if communication relates to an alleged breach of the attorney’s duty
(3) Joint Rep - Attorney acts for both parties in a txn then no privilege between the parties
(4) Records of fee payments not covered
Doctor Patient Privilege
Prevents disclosure of information confidentially conveyed by a patient to a physician
(1) Statutory / Fed Courts not FRE
(2) Communication must be (a) made for purposes of obtaining diagnosis or treatment; (b) pertinent to diagnosis or treatment; and (c) intended by the patient to be confidential
Exceptions
(1) Patients condition is a legal issue (personal injury)
(2) Physciains services were sought to aid a crime
(3) Dispute between Doctor and Patient
Psychotherapist - Patient Privilege
Material conveyed by patient is privilege in all civil or criminal cases if:
(1) The client intends it to be confidential and
(2) Communication is made to facilitate the therapy or social work
Spousal Privilege
In a criminal case..
A person whose spoud is a D cannot be:
(1) called as a witness by P or
(2) compelled to testify against spouse
Only the W-spouse may invoke the privilege (i.e. D cannot prevent a willing spouse from testifying)
Must be married at the time
Martial Communications Privilege
In either civil or a criminal case..
Confidential communications made during marriage are privilege in any later proceeding (even if divorced).
Either spouse may invoke.
Breaking confidentiality can lead to forfeiture of the privilege (i.e. relaying to a 3rd party)
Does not apply when the suit is between spouses, for a tort against the marital children, or where spouses are co-defendants.
Authentication Issues - Ancient Documents
Ancient Documents are automatically authenticated if they are:
(1) 20+ years old
(2) do not present facial irregularities
(#) found in a place of natural custody
Authentication
Every item of physical evidence must be authenticated.
May be proved by any means that serve to establish authenticity (low burden). e.g. compared to already authenticated item.
Writings that contain identifying information do not need separate authentication (deeds/notarized docs/newspaper)
Authentication Issues - Photos, Voice, Non-unique Items
Photos - must have personal knowledge
Voice - whether heard firsthand or through a recording it may be authenticated by anyone who has heard the voice
Non-unqiue Items - item facially indistinguishable from others of its kind (white powder)
- proponent must establish chain of custody
Best Evidence Rule
If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable
Writing = any tangible collection of data (videos, docs, photos, emails)
Applicability = rule only applies if evidence is offered to prove its contents (e.g. W’s knowledge is obtained from a writing)
Evidence sufficient to prove a writings contents:
(1) Originals
(2) Duplicates (machine or carbon copy) unless genuine question as to authenticity
(3) The original is lost/destroyed and there is Testimony regarding the contents
(4) Voluminous documents summarized where originals are available for inspection
Completeness Doctrine
If a party introduces part of a written or recorded statement into evidence, an adverse party may introduce any other part or any related statement; that, in fairness, ought to be considered at the same time and may do so over a hearsay objection.
Judicial Notice
A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party
Judicially noticeable facts are facts that are:
(1) Manifest Facts - capable of verification by a source that is not subject to reasonable dispute or
(2) Notorious facts - generally known within the jx
Courts must take judicial notice of fed and state laws and regulations (discretion as to municipal ordinances, foreign laws, etc)
Civil Effect - jury must take judicially noticed facts as conclusive
Criminal Effect - jury may take judicially noticed facts as conclusive, but is not required to
Hearsay
An out of court statement offered to prove the truth of the matter asserted is generally inadmissible subject to certain exceptions and exemptions
Statement - oral or written assertions, or non-verbal conduct intended as an assertion
Out of Court statements are not hearsay if offered to prove anything other than the truth of the matter they assert
Hearsay Exemptions versus Hearsay Exceptions
Exemptions - deemed “non-hearsay” and thus admitted
Exceptions - deemed “hearsay” but still admitted
Admissible Out-of-Court Statements
Out of court statements are not hearsay if offered to prove anything other than the truth of the matter asserted
(1) Statements of independent legal significance - contains legally operative words (to show it was said not whether it was true)
(2) Statements offered to show their effect on the listener (e.g. negligence claim - statement warning P of injury causing condition is admissible to show notice)
(3) Statements offered to show a speaker’s knowledge (e.g. D charged w/ conspiracy claims he did not know about the crime; statement indicating D was told specific will be admissible)
(4) Statements offered to show state of mind - statements offered as circumstantial evidence of declarants state of mind are not hearsay (e.g. statement by D before running into traffic and causing accident that he is invisible may be used to show insanity)
Statement of Party Opponent (Non-Hearsay Exemptions)
Statement of Party-Opponent - OOC statements by a party are admissible if offered against that party
(1) Judicial Statements - made in pleading or testimony
(2) Adoptive Statement - acquiescence in another’s statement
- Silence can be a statement if (1) party heard, understood and was capable of responding and (2) a reasonable person would have responded
(3) Vicarious Statement - statement made by someone other than the person against whom the state is offered (Agency, Authorized Speaker, Co-Conspirator)
Declarant - Witness Prior Statement (Non-Hearsay Exemption)
A prior statement by a declarant who testifies and is subject to cross is admissible where the statement is either:
(1) Inconsistent with declarant’s testimony and given under oath;
(2) Prior consistent statement - admissible to rebut charge of fabrication, improper motive, or rehabilitate credibility, or
(3) Prior statement of identification after perception - admissible to identify a person as someone declarant perceived earlier
Hearsay Exceptions (Declarant Unavailability Required)
(1) Former testimony exception
(2) Statements against interest
(3) Dying declarations
(4) Statements of personal or family history
(5) Statements offered against party procuring declarant’s unavailability
Hearsay Exceptions (Declarant unavailability is immaterial)
(1) Present state of mind
(2) Excited Utterances
(3) Present Sense Impressions
(4) Physical Conditions (for medical diagnosis or treatment)
(5) Past recollection recorded
(6) Business Records
(7) Public records or reports
(8) Judgements and prior convictions
(9) Ancient documents
(10) Documents affecting property interests
(11) Learned treatises
(12) Family records
(13) Market Reports
Unavailable Declarant
Unavailability refers to the declarant’s testimony (e.g. a declarant can be in court, but her testimony is “unavailable” b/c she asserts a valid privilege)
A declarant is unavailable if either:
(1) privilege exempts testifying
(2) death or sickness
(3) Refusal despite court order
(4) Lack of memory
(5) Absent - beyond the reach of subpoena power
Former Testimony
Testimony given by a person in an earlier proceeding or deposition may be admissible
Requirements:
(1) Declarant currently unavailable
(2) DEclarant’s prior testimony was given under oath; and
(3) Party against whom testimony is now offered was either
(a) a party in the previous action and had opportunity to cross (similar motives in cross)
(b) a predecessor in interest of a party in the previous action (privity-type relationship - civil only)
Statements Against Interest
A hearsay statement is admissible if at the time it was made it was against the pecuniary or legal interests of the declarant
Requirements:
(1) Declarant is currently unavailable
(2) Statement was contrary to declarant’s pecuniary, proprietary or penal interest when made and
(3) A rxnable person would not have made the statement unless he believed it to be true
(4) IF CRIMINAL - there must also be corroborating circumstances indicating the trustworthiness of the statement
Distinguish from Party-Opponent Admissions
- a party opponent admission is a statement of a party or a vicarious statement attributable to that party (no requirement for the statement to be against declarant’s interest)
- a statement against interest is any statement against declarant’s interest at the time it was made (no requirement that the declarant is a party int he proceeding)
Dying Declarations
A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death
Requirements:
(1) Declarant currently unavailable (does not need to be dead)
(2) OOC statement was made under belief of impending death
(3) Statement was made regarding cause or circumstance surrounding that belief
Available in Civil and Homicide cases ONLY.
Present Sense Impression
A hearsay statement is admissible ifi t:
(1) Describes or explains an event or condition; and
(2) Is made contemporaneously with the event or immediately thereafter
Timing is KEY - the statement must be made while, or immediately after, the declarant perceives the condition or even described in the statement
Excited Utterance
A hearsay statement is admissible if it:
(1) Relates to a startling or exciting event or condition; and
(2) Was made while the declarant was under the stress or excitement of the event
Declarant’s emotional state is key - the declarant must be under such excitement or stress that one would not usually have an opportunity to fabricate the statement
Statement Concerning Present State of Mind or Condition
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition at the time the statement was made.
Then existing SOM - usually offered to show intent at the time as a circumstantial inference that declarant’s intent was likely carried out
Then existing Condition - usually offered to establish some physical condition, symptom or sensation that declarant experienced.
THEN EXISTING!!
Statements of memory or belief are inadmissible because not THEN EXISTING.
Statement of Physical Condition for Diagnosis or Treatement
Statements regarding past or present physical condition are admissible if made for the purpose of diagnosis or treatment.
Requirements:
(1) Statement must describe a person’s medical history, past or present symptoms, or their general cause
(2) Statement must be made for purpose of and reasonable pertinent to assisting in diagnosis or treatment
Related statements (such as an admission) about an injury causing event are usually inadmissible (e.g. statement by declarant to an ER doctor that she was shot will be admissible but identity will not)
Not required that the statement be made to a medical professional.
Business Records
Hearsay Statements in the form of business records are admissible if they are:
(1) A record or txn made or recorded by a business;
(2) Made in the regular course of business
(3) Made by someone with knowledge at or near the time of the matter described
(4) authenticated or certified in writing
- Trustworthiness (court may exclude if circumstances indicate lack of trustworthiness)
- Absence or Record (records meeting these requirements may be admitted to show that a matter did not occur)
Police Reports - inadmissible in criminal cases
Multiple hearsay issues - every layer must fall into some exception or exemption (e.g. minutes of a meeting with Sectretary’s notes are one level of hearsay and then the statements are another)
Public Records
A public office/agency record is admissible if it:
(1) Describes the activities of a public office or agency
(2) Describes either;
(a) Matters observed pursuant to a duty imposed by law or;
(b) Factual findings resulting from an investigation made pursuant to an authority granted by law
(3) Is made by a public employee within their scope of duty; and
(4) Is made at or near the time of the event
Certification or testimony from a public official that a diligent search failed to find a record is admissible to prove the record does not exist or a matter did not occur
Prior Convictions/Judgments
- certified copies of judgments are admissible in both civil and criminal to prove fact essential to judgment
- prior convictions are inadmissible in criminal cases against non-Ds unless used for impeachment
Learned Treatises
Arises with expert testimony only
If the Learned Treatises are accepted authority in a given field (reliable and accepted by testimony, admission, or judicial notice), Experts can rely on them in direct examination or can be impeached with information on cross.
Ancient Documents
a form of documentary evidence.
Family Records
Statements of fact found in family keepsakes, e.g. jewelry engravings, genealogies.
Confrontation Clause
An otherwise admissible out of court statement offered against D in a criminal case may be excluded under the 6th Amend. Confrontation Clause.
Excluded If:
(1) The declarant is currently unavailable
(2) D had no prior opportunity to cross the declarant about the statement at the time it was made ; and
(3) The Statement is testimonial
Exception: will not be excluded if Declarant is unavailable as a matter of D’s wrongdoing
Testimonial Statement
Includes:
(1) Prior statements made during court proceedings
(2) Statements made in furtherance of a police investigation
i.e. statement aimed at producing evidence potentially relevant to later prosecution
Business records are generally not testimonial
Exception - statements made to police during an ongoing emergency are non-testimonial and can be admitted
Co-defendant Statements
Confrontation Clause bars admissions of OOC statement by a non-testifying co-D if the statement expressly implicates another D
Exceptions - A co-D’s OOC statement is admissible if either:
(1) Declarant co-D testifies and is subject to cross
(2) Portions of the co-D’s testimony referring to the non-declarant D are redacted (truly keeps identity anon)
(3) The statement is used to rebut a change or a coerced confession
