Evidence Flashcards
What is “testimonial” for 6th Amendment purposes?
(This is testing Confrontation Clause)
- Grand Jury Testimony
- Sworn Affidavits
- Statements in response to police interrogation IF about past events relevant to criminal prosecution
- Forensic lab reports IF prepared to accuse a targeted individual (e.g analysis of drugs seized or blood analysis to establish BAC) ***(but may still use in accordance w/ expert witness testimony)
What is NOT testimonial for 6th Amendment purposes?
(This is testing Confrontation Clause)
- Business Records
- Statements in response to police interrogation if used to assist in an ongoing emergency
- Forensic lab reports not targeting a specific individual (e.g. a DNA analysis prepared from crime scene before there’s a specific suspect)
What is a considered an “ongoing emergency?” for 6th Amendment purposes?
(Confrontation Clause)
Ongoing emergency includes situations where
(1) perpetrator is still in the midst of criminal activity against victim, or
(2) the crime has ended but the perpetrator is still at large, armed, and poses a threat to victim, police, or public at large
What is “hearsay?”
An out of court statement made by a person and offered to prove the truth of the matter asserted.
What is the Confrontation Clause?
The 6th Amendment gives all defendants the right to confront witnesses against them. Therefore, no hearsay may be introduced against a criminal defendant, even if it falls within one of the exceptions, if: (1) It is testimonial, (2) the declarant is unavailable, and (3) the defendant had no opportunity to cross-examine the witness.
What are the HEARSAY Exceptions?
Requiring Unavailable Declarant: (4)
- Forfeiture
- Former Testimony
- Statement against interest
- Dying Declarations
Spontaneous Statements: (maybe 5?)
- Excited Utterances
- Present Sense Impression
- Present State of Mind
- Declaration of Intent
- Present physical condition
- Statement for the purpose of obtaining medical treatment or diagnosis
Records (2)
- Business Records
- Public Records
+ May be used w/ present witness testimony:
- Past Recollections recorded
- Learned Treatises
Forfeiture Hearsay Exception
Any hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable.
Standard of proof: Admissible if court finds by a PREPONDERANCE of the evidence that the wrongdoing was specifically designed to keep the witness from testifying.
**NY: standard is CLEAR and CONVINCING evidence.
Former Testimony Hearsay Exception
Hearsay is admissible IF:
- A witness who is now UNAVAILABLE for live testimony
- testified at a former proceeding or in deposition (under oath); AND
- Testimony now being asserted against a party who had opportunity and motive to cross-examine the witness.
*motive means issues must be essentially the same
Grounds for unavailability
- Privilege
- Absent from jurisdiction (either cannot be found with due diligence OR is beyond the reach of a subpoena)
- Illness or Death
- Lack of Memory
- Stubborn refusal to testify even in absence of privilege
Statements against Interest Exception
An UNAVAILABLE declarant’s statement against her 1. Pecuniary, 2 Proprietary, or 3. Penal interest is admissible hearsay.
Distinctions between Statements Against Interest and Party Admissions
- SAI must be against interest when made; PA need not be
- SAI can be made by ANYone, not merely opposing party
- Personal knowledge required for SAI, not for PA
- Declarant must be unavailable for SAI, PA obvi no
Dying Declarations Exception
A statement made under a belief of certain and impending death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.
Available in civil cases but ONLY criminal homicide cases.
**NY: ONLY available for criminal homicide cases, no civil cases
Excited Utterances Exception
A statement concerning a startling event and made while the declarant is still under the stress of the excitement caused by the event.
(availability of declarant doesn’t matter)
Present State of Mind Exception
A description of an event made while the event is occurring or immediately thereafter.
**In NY, must be corroborating evidence that the event is happening.
Factors in determining whether a statement is an excited utterance
- Nature of the event (traumatic, sudden?)
- Passage of time (closer in time the better)
- Visual clues
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