Hearsay Flashcards
Rule 802 Inadmissibility
Hearsay is not admissible unless any of the following provides otherwise:
- a federal statute;
- these rules; or
- other rules prescribed by the Supreme Court.
risks posed by hearsay
No ability to cross examine → testimonial capacities: memory, perceptions, narrations and
sincerity
● Jury cannot assess demeanor → cannot find the declarant was sarcastic, funny, etc.
(credibility)
● Not under oath and penalty of perjury → no formal place so can be exaggerated
● There is a concern of RELIABILITY
801 hearsay definition
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement. (if not a party not hearsay)
Statement definition
“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Witness and Declarant definitions
“Witness” means person who repeats hearsay statement in court
“Declarant” means the person who made the statement.
Hearsay Analysis
Step 1: Who is the declarant?
Step 2: Did the declarant make a statement?
Step 3: Was the statement made out-of-court?
Step 4: Is the statement being offered to prove the truth of the matter
asserted?
■ If all YES, then it’s hearsay and its INADMISSIBLE
Grimes v. Employers Mutual Liability Insurance (video hearsay)
He’s trying to demonstrate the extent of his injuries and wanted to submit those recordings (him showing he can’t perform daily activities)
Issue: If the videos contain direct assertions
Court holds they are direct assertions because they set up and recorded themselves
There is a direct assertion so inadmissible
United States v. Jackson (questions for hearsay)
Accused of stealing
Find a jacket with a pager inside with the sound “is this Kenny”
Is this Kenny was not a direct assertion because it was a question
Defendant is saying it was hearsay because one could assume it was Kenny’s
Court holds: no intended assertion, just a question
Person seeking to include has the burden by preponderance of the evidence
Statements that are NOT HEARSAY because they are not offered to prove the truth of the matter asserted:
○ Statements constituting “verbal acts”
○ Statements offered to show their effect on the listener/recipient
○ Statements offered to show the declarant’s implied belief in making the
statement
○ Statements offered as circumstantial evidence of the declarant’s
statement of mind
○ Statements used to impeach by prior inconsistent statement
VEDCI
Statements of Independent Legal Significance or Verbal Acts (VEDCI)
a statement that the law attaches LEGAL SIGNIFICANCE to regardless
of the truth
examples:
-Such as defamation (truth of them is what matters)
-Financial instrument
-transferring as gift and showing donative intent
United States v. Ping
Trying to use checks to demonstrate he was unlawfully engaging in tax evasion
Ping’s argument was checks should not be admitted because they were made out of court and offered for its truth so it is hearsay
Trial court admitted them into evidence, they said they have an obligation to bring them in because they have independent legal significance (financial evidence usually is)
Statements Offered to Show Their Effect on The Listener
Not focused on the declarant but to the person it was said to
● Common purposes:
○ Knowledge
○ Notice
○ Anger
○ Emotional distress
● Examples:
“to show he knew” “they had notice” “warned “is only for knowledge not truth so not hearsay
- In a medical malpractice action, plaintiff offers into evidence a statement made by an unidentified person in the operating room during surgery. The statement was “The sponge count came out wrong.” It is offered to show that the surgeon, upon hearing this statement in the operating room, was negligent in not checking for a sponge in the patient’s body. This is to show notice.
-Defendant’s mens rea not hearsay
-If the document is being offered to prove its truth (that the product is dangerous when used in a certain fashion) then it is hearsay. But if the document is used to prove something else (that the company had notice that the product could be dangerous) that is not hearsay because it would be offered to show the effect on the entity reading the document.
○ “My friend told me that he killed two other people” → to show self-defense
claim and that she acted on that fear
○ “My doctor told me I might get cancer” → not to show that there was an
actual medical issue, but that she was under mental distress
Mclure v. State (effect on listener)
Defendant wanted to bring in evidence that his wife wanted to have an affair
Evidence was going to be introduced by witness testimony that they told him his wife was having an affair (out of court statements)
He wanted to show jury there was a reason to get bumped down from murder charge
Trial judge ruled they were not allowed in, appellate court overruled and let in because it was not being offered to prove truth but prove defendant’s state of mind acting in the heat of passion
(offered to show impact not the truth of the statement itself)
Conduct or Statement Offered to Show Declarant’s Implied Belief
-Burden is on person claiming hearsay
-Conduct considered nonassertive is not hearsay
If they knew they were being taped it would be assertive conduct and would be hearsay
What does this statement tell us the declarant believes is true?
● It’s offered to show the declarant’s beliefs
Looks at what statement shows about person who SAID it.
Limited to ONLY declarant’s belief as implied in statement
Statements Offered As Circumstantial Evidence to Show Declarant’s State of Mind
It’s important the evidence provided is circumstantial and not direct (direct
evidence of state of mind IS for the truth of the matter asserted)
● Common purpose:
○ Mental capacity
○ Nature of relationship
○ Knowledge
○ Notice
○ Emotions
-”Daddy tried to kill me” offered to show her fear not truth = circumstantial evidence of declarant’s state of mind
Loetsch v. New York City Omnibus (circum evidence to show declarant’s state of mind)
Wife left husband $1 in will
Offered to show her state of mind when she made the will, did she actually intend to leave him a dollar or did she make a mistake?
Jason says ___ stole money from him which is offered to show the truth but motive is not offered
Would come up as hearsay when contesting a will (she kept saying he was a horrible person which shows her intent in making the will)
Statements Offered to Impeach
Anything showing witness is contradicting themselves would not be hearsay because it is not for the truth but for impeachment purposes
805: Hearsay within hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
As long as there is an exception or exclusion that applies at every level (every statement) , it will be allowed
801 (d) Hearsay Exclusions (two umbrella categories)
○ 801(d)(1) Prior Statements by the Witness
○ 801(d)(2) Admission by Party-Opponent
Exclusion- Prior Statements by the Witness
- Declarant must be on stand testifying and subject to cross examination
- Statement made during trial, hearing, proceeding, deposition (not sworn statement, affidavit, or interrogation)
- Inconsistent, consistent, or identification
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (we don’t want improper bolstering)
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
Exclusion: An Opposing Party’s statement
The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
Types of Admissions:
1.Party’s own statement
2.Party’s adopted statement
3.Statement by a person authorized by the party (Must have SPEAKING authority
on the subject of the statement
(narrow)
Lawyers, corporate officers, managing partners, possibly accountants or employees
- Statement by a party’s agent (Must ONLY be employed by
opposing party (and statement
made during relationship and
within its scope) - Statement by a co-conspirator (during and in
furtherance of the conspiracy.)
-Statement can contain opinion
-Independent contractors not included in exclusion
-Can either adopt expressly or impliedly through nonverbal or action/response
-burden on party offering up to prove silence constituted adoption
United States v. Mornan (801d inconsistent)
Mornan telemarketing scheme, cashed insurance premiums illegally, charged with fraud
Icon employee at deposition said she cashed money orders to insurance companies
At trial she said she couldn’t remember due to injuries from car accident (but accident was minor she lied)
Prosecution wanted to admit her depo statement
Trial court admitted it under inconsistent statement
Tome (801d consistent)
Tomes divorced and battled over custody, dad won
Mom told cops dad sexually abused daughter, allegation made daughter who told multiple people
Tome pleaded not guilty
Cross examined daughter and said she was lying, evidence showed she wanted to live with mom and she had motive to lie
Allowed the 6 people who the daughter told to testify
Under Federal Rule of Evidence 801(d), a consistent, out-of-court statement made by a witness is admissible to rebut a charge of a fabrication or improper motive, but only if made before the motive to fabricate arose.
Her statements were thus inadmissible and dad won
Example of fabrication exclusion
United States v. Lewis (801d identification)
Witness on stand asked to identify robber and pointed to someone other than the defendant
Defendant said evidence that she picked him out in photo array before trial was not allowed
Rule: An out-of-court photographic identification is not hearsay if it is made after seeing that person and the declarant is subject to cross examination regarding the statement.
Also: PERSON WHO CANNOT ID MUST BE ON STAND (NOT THE COP TALKING ABOUT THE ID)
Jordan v. Binns (801d2 opposing party statement)
Binns hit Jordan on motorcycle
Jordan said it was her fault at scene
Binns wanted to admit her statement
Statement was allowed and is not hearsay
An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity
United States v. Miller (adopted statement express or implied)
District court relied on transcript from state court
Judge will say what allegations are and then pleads guilty (using this (an out of court statement) to show he was charged)
In plea he did not expressly say yes i did it he just plead guilty
First statement must have been in party’s presence, second statement made would induce someone to respond if it was not true (silence as adoption)
Mahlandt v. Wild Canid Survival (party agent or employee working within the scope admission)
Rule: Admissions by an agent of a party within the scope of his agency about any material fact at issue are admissible against that party.
Dad brought suit on behalf of his minor son for injuries sustained by a wolf (owned by wild canid)
Dad wanted to bring in three statements
1st: Poos left note on boss’ door that wolf bit child (excluded as admission)
2nd: Poos verbal statement to boss that wolf bit child (excluded as admission)
Minutes of meeting held reflect legal implications of wolf bite (Poos was not present so did not come in) so it was hearsay and did not fall into exclusion (board is not agency)
Trial court excluded all three as hearsay, jury found in favor of poos and center
Appeals court reversed (1 and 2 allowed in)
Bourjaily v. US (conspirator admission)
Requirements: Must be a member of conspiracy, statement made while conspiracy in existence, statement made in furtherance of the conspiracy
Greathouse an fbi worker arranged to sell coke to Lonardo for distribution, including the defendant
They were arrested for conspiracy
Sought to introduce evidence of phone conversation with Lonardo
Hearsay exceptions (regardless if they are available)
(1) Present Sense Impression
(2) Excited Utterance
(3) Then-Existing Mental, Emotional or Physical
Condition
(4) Statement made for the Medical Diagnosis or
Treatment
(5) Recorded Recollection
(6) Records of Regularly Conducted Activity
(business records)
(7) Absence of Record of Regularly Conducted
Activity
(8) Public Records
Present Sense Impression Exception
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
Trustworthiness, timing (how long it happened after event for possibility of calculated narration) is most important in determining
Immediately after depends on facts and judge
“whether the proximity in time is sufficient to reduce the hearsay danger of faulty memory and insincerity”
Schindler v. Seiler (Present Sense Impression)
Seiler to White: Schindler paralyzed four patients
White to Schindler: you paralyzed four patients?
Actual defamatory itself is not offered for its truth because defamatory statements (independent legal significance rule)
-statement has to describe the event without calculated narration
Court thought there was enough time to calculate so it was not present sense**
-speaker has to personally perceive event described
Yes white was being talked to
-statement must have been must describe an event that the declarant perceives and be made during or immediately after the perceived event.
No. A statement is not admissible as a present-sense impression under an exception to the hearsay rule if the declarant deliberates about what to say or provides the statement for a particular reason. To be admissible under this exception, a statement must describe an event that the declarant perceives and be made during or immediately after the perceived event. A present-sense impression is considered to be reliable because of its spontaneity. Thus, a calculated interpretation of an event will not qualify as a present-sense impression. In this case, the district court did not abuse its discretion by excluding Schindler’s testimony about White’s statement. White’s alleged statement to Schindler about Seiler’s defamatory statement to White is inadmissible hearsay, and does not qualify as a present sense impression. White testified that he informed Schindler about disparaging comments being made because he was concerned about Schindler’s reputation. Thus, White relayed the comments to Schindler for a particular reason, and not spontaneously and immediately after hearing the comments. In fact, White never testified that he made the statement to Schindler immediately after talking to Seiler. The only evidence presented otherwise is Schindler’s own proffered testimony that White’s recitation of the defamatory statement was made immediately after White heard it. This is insufficient to prove the immediacy of White’s statement. Accordingly, Schindler’s testimony about the statement was properly excluded. The judgment of the district court is affirmed.
Excited Utterance exception
Statement relating to a startling event or condition made while declarant was under stress
911 call is example (usually)
Usually more trustworthy than present sense (no time to calculate/ describe differently/ nature of events)
Timing after is less important than present sense
Elements:
Startling event
No time to fabricate
State of excitement must be continuous
Statement relates to the event
Personal knowledge
City of Dallas v. Donovan (excited utterance)
Collision because no stop sign
Plaintiffs suing city for notice they should have put up
Plaintiff trying to establish notice by testimony that middle aged woman called city before
Her statement at the scene of the accident was hearsay (if it was call to the city directly it would not be hearsay because notice is not offered to prove truth) but here it was just statement at scene
Got in as excited utterance (she was shaking, emotional)
Then Existing Mental, Emotional, or Physical Condition exception
Current physical condition experienced by the declarant not someone else
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan)
or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
Example:
I’m going to New York tomorrow would not be hearsay but “I’m going to New York tomorrow with Joe” would be hearsay because we don’t know the mind of Joe
Mutual Life Insurance v. Hillmon (Hilmon Doctrine) then existing mental
Hillmon left south for ranch and before departing purchased life insurance from 3 different companies, then was killed
Wife notified insurance companies and fraud was suspecting
Demanded corpse dug up, and company said Hillmon was not actually dead
Brown said he Shot Walters not Hillmon
Wife sued companies
Companies tried to introduce letters (that waters was invited to ranch) and court denied based on hearsay
Thus, in this case, the letters are admissible to prove Walters’s then-existing intent to join Sallie’s husband on his trip to Crooked Creek. The letters do not prove that Walters actually went to Crooked Creek, merely that he had the intention to do so. This is relevant because it makes it more probable that he did actually go to Crooked Creek and thus more probable that the body found was his.
Offer of proof must be given to be heard on appeal
Casualty Insurance Co v. Salinas (then existing physical condition)
Salinas injured at work, filed workers comp, saying he had pain
Doctor testified he was not seriously injured
Salinas wanted to call witnesses that he told many times he was in pain
Court said it was hearsay, appeals reversed, SC affirmed
An out-of-court statement is admissible to prove the declarant’s then-existing physical condition. Such a statement does not need to be made to a doctor, and the veracity of the statement once admitted is a question for the jury.
Statements for Purpose of Medical Diagnosis or Treatment
3 part test:
(A) statement is made for medical diagnosis or treatment and
(B) statement describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(C) and is reasonably pertinent to — medical diagnosis or treatment
How to find if pertinent:
-established by motive of declarant
-doctor relies upon
Does not have to be a doctor
Statements of fault: the reason I have a broken arm is because he beat me up (likely to fall within this exception)
State v. Moen (medical diagnosis)
Patient exhibited signs of depression and distress, and told doctor Mulkey might kill them both, gave her meds and told her to call the police
She was later shot to death
Prosecution called doctor as witness and said what patient told her
Rule: A patient’s out-of-court statements concerning the cause of the patient’s condition made to a medical professional for the purpose of obtaining medical diagnosis or treatment are admissible if they are reasonably pertinent to the diagnosis or treatment.
Recorded Recollection
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s prior knowledge.
The document is not submitted (it is read into evidence)
Depos when you agree with what is said it is considered adopted not made
Records of Regularly Conducted Activity
- Evidence must be a memorandum, report, record, or data compilation in any form
- Evidence must be proffered by a witness who is the custodian or other qualified witness
- Record must have been made
* By a person with personal knowledge OR
* From information transmitted by a person with
personal knowledge - Record must have been made at or near time of
acts, events, conditions, opinions, or diagnoses in
it - Record must be made as part of regular practice
of business - Record Must have been kept in the course of
regularly conducted business (so if made in anticipation of trial it does not count)
Keogh v. Commissioner of Internal Revenue (regularly record conducted activity)
Declarant is Whitlock who wrote the diary
In diary he kept track of earnings from every night (tips)
His entries were relevant for prosecution because it gives a range of how much the dealers should have been making (round figures)
Was a personal business record of Whitlock, (personal is fine but still must follow requirements)
Custodian was former wife, she satisfied it because she witnessed him writing the diary
Absence of Entry in Records Kept in Accordance with 803(6)
Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
Public Records and Reports
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B)the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Example: teacher renovated her house and went to office to get paperwork/ reports
Also: if they were sued and there was an investigation done by the housing department it would fall into third exception
Police reports don’t fall under this exception, but can be used to jog their memory
Beech Aircraft v. Rainey (investigative report)
Plane crashed and people passed away
Family wanted to sue due to manufacturing defect (but they said it was pilot error)
Statement at issue is from JAG officer, in report it said it was pilot error which judge let come in
Rules:
(1) Conclusions or opinions in public agency investigative reports are admissible under Rule 803(8) as long as the conclusion or opinion is based on the factual investigation.
(2) If a party introduces part of a statement into evidence, the opposing party may present the remaining portions of the statement to ensure that the court has a complete understanding of the evidence.
Using observations (hearsay) can be used for JAG officer to report (rely on it) but can’t be part of report or spoken to jury unless exception
(1) Yes. Conclusions and opinions made pursuant to a public agency’s investigation it was required to make are admissible as long as the conclusion or opinion is based on the factual findings from the investigation. The conclusion or opinion must also satisfy a trustworthiness requirement built into Rule 803(8). This is because “factual findings” as written in Rule 803(8)(C) should not be read to literally mean “facts.” A finding of fact may also be a conclusion based on facts. Furthermore, Rule 803(8)(C) does not actually state that factual findings are admissible, but rather that “reports . . . setting forth . . . factual findings” are admissible. Thus the Rule does not specifically distinguish between facts and opinions contained in those reports. On this reading of Rule 803(8)(C), it is clear that Morgan’s conclusions in his report are admissible. His conclusions were based on his investigation and the facts that he discovered. And based on those facts, he concluded that pilot error was probably the reason for the crash. Under the plain language of 803(8)(C), such a conclusion is admissible as long as it satisfies the trustworthiness requirement. Because the trial judge found that the conclusions were trustworthy, he properly admitted the statements.
804 exceptions (declarant not available)
(1) Former testimony
(2) Statement under belief of imminent death
(dying declaration)
(3) Statement against interest
(6) Statement offered against party who
wrongfully caused declarant’s unavailability
(forfeiture by wrongdoing)
804 analysis (declarant not available)
ONLY applies if the declarant is NOT available to testify
○ First, is the declarant UNAVAILABLE as defined in Rule 804(a)?
■ If NO, then no rule 804 exception can be applicable
○ Then, does one of the exceptions in Rule 804(b) apply?
■ If YES, admissible hearsay
■ If NO, inadmissible hearsay under Rule 802
what does unavailable mean?
Unavailable under 804(a) means: (only need one)
○ Declarant has a PRIVILEGE allowing them not to testify
○ Declarant REFUSES to testify after being ordered to
○ Declarant has NO MEMORY of the relevant facts
○ Declarant is DEAD or PHYSICALLY or MENTALLY ILL
○ Declarant is ABSENT despite reasonable diligence
What if the proponent procures the absence of the witness? (they send the person off to Orlando so they won’t be able to testify) this does not work!!!
Prior testimony (unavailable)
- Declarant must be unavailable
- Declarant must have testified in a prior proceeding
- Party against whom the statement is offered had:
An opportunity to question declarant at the prior proceeding AND
A similar motive to question the declarant at the prior proceeding
United States v. Dinapoli: prior testimony
Defendants charged with conspiracy
Witnesses at the grand jury testified denying they knew about the arrangement or bid rigging schemes
The prosecutor cross examined them but did not bring up the wire taps because she did not want them to know
Jury indicted them
At trial, the same witnesses invoked the 5th amendment (making them unavailable to testify)
Trial judge refuses to admit grand jury testimony because prosecutor has different motive in grand jury indictment versus trial
Trial court defines similar motive: two things to look to: same side of the issue and similar degree of interest (what was at issue in both proceedings and were they both critical?)
Motive was not the same because grand jury proceedings are just deciding whether to indict when the trial is to convict
This did not qualify, grand jury proceedings are pretty rare to be admitted
Dying declaration (unavailable)
1.Declarant Unavailable
- Criminal Prosecution for homicide or any civil case
- Declarant believes death to be imminent
4.Statement is made about cause or circumstances of death (not something you want to happen after the death or something you wanted before)
- Personal knowledge about the assertion of the statement
If it seems like dying declaration “if i die don’t let him get away with it” and they don’t die: excited utterance
Statement Against Interest (unavailable)
1.Declarant Unavailable
2.Statement was contrary to declarant’s interest
-Monetary interest ( i owe someone money) or
-Proprietary interest (property interest, i gave you that car as a gift) or
-Exposes declarant to liability or
-Renders a claim by declarant against someone else invalid
3.Person in declarant’s situation wouldn’t have made the statement if it was not true
4.If a criminal case that exposes declarant to criminal liability, need corroboration
Statement of Personal or Family History (unavailable)
) THE DECLARANT’S OWN BIRTH, ADOPTION, LEGITIMACY, ANCESTRY,
MARRIAGE, DIVORCE, RELATIONSHIP BY BLOOD, ADOPTION, OR MARRIAGE, OR
SIMILAR FACTS OF PERSONAL OR FAMILY HISTORY, EVEN THOUGH THE
DECLARANT HAD NO WAY OF ACQUIRING PERSONAL KNOWLEDGE ABOUT THAT
FACT; OR
(B) ANOTHER PERSON CONCERNING ANY OF THESE FACTS, AS WELL AS DEATH, IF
THE DECLARANT WAS RELATED TO THE PERSON BY BLOOD, ADOPTION, OR
MARRIAGE OR WAS SO INTIMATELY ASSOCIATED WITH THE PERSON’S FAMILY
THAT THE DECLARANT’S INFORMATION IS LIKELY TO BE ACCURATE.
Forfeiture by wrongdoing (unavailable)
A statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness.
United States v. Gray (forfeiture by wrongdoing)
She killed boyfriend and was planning to kill another, and mail fraud from dead guys
Trial judge admitted statements by dead boyfriend where he talked about her sketchy actions
These statements can be used in any trial not just the criminal
Last step in hearsay: confrontation clause
6th Amendment: In all criminal prosecutions, the accused shall enjoy the right.. To be confronted with the witnesses against him
Not civil cases
Not statements offered against the prosecution
Must be allowed by FRE and confrontation clause
Requires that the criminal defendant be able to confront witnesses against him
Two ways confrontation clause not violated by introduction of hearsay:
- Declarant testifies at trial and subject to cross on hearsay statement
- Declarant unavailable at trial and prior statement was made under oath and subject to cross-examination by defendant
Crawford v. Washington (confrontation clause)
Wife of defendant made a statement to police while in custody (she was potential suspect) police was asking her leading questions and undermined her self defense claim (which was recorded)
She was unavailable to testify
Court found statement was reliable, appeals found not reliable, SC found it was reliable
SC laid out standard:
- Is it hearsay?
- Does an exception apply?
- Is it offered against a defendant in a criminal case?
- Does it violate the confrontation clause?
Witnesses= those who bear testimony
Testimony= a solemn declaration or affirmation made for the purpose of establishing or proving some fac
rule for confrontation clause (crawford v. washington)
NEW RULE: Only testimonial statements implicate the confrontation clause (procedural guarantee not substantive)
Examples of testimonial statements:
affidavits
Prior testimony that defendant was not able to cross-examine (if they have been subject to cross before then you’re good)
Statements taken by police officers in the course of interrogations
Statements made under circumstances that would lead an objective witness to reasonably believe the statement would later be used at trial
Davis v. Washington (confrontation and primary purpose test)
Called 911 stating defendant was beating her
911 worker asked her questions like who what when where and if they left yet, name and address
Officers were witnesses
Primary Purpose Test:
- Is the statement made under circumstances
objectively indicating that the primary
purpose of the statement is aimed at
assisting a criminal investigation?
TESTIMONIAL - Is the statement made under circumstances
objectively indicating that the primary
purpose of the statement is aimed at
resolving an ongoing emergency?
NONTESTIMONIAL
confrontation (Hammon)
Police did not see anything happen, husband said it was fine
Talked to wife and had her sign a battery affidavit (hit her, tore up her van)
Wife testified at trial
Present sense exception
Primary purpose was describing past events (this does not get in) so it is testimonial
But if past facts for ongoing threat it would be fine
Melendez Diaz v. Mass (confrontation)
State lab technician’s sworn statement declaring a substance to be cocaine is testimonial and inadmissible
absent the testimony by the certifying chemist
Michigan v. Bryant (confrontation)
Dying gunshot victim’s answers to police questions about who shot him were not testimonial because the gunman’s
unknown motives, intentions, and location created an ongoing emergency
Ohio v. Clark (confrontation)
Clark was charged with assault to a little boy
Statements at issue were those he made at school to teachers
Child did not testify at trial (exception was ohio law allowing victims)
Trial court said it was not testimonial, appeals and state SC said it was testimonial
Applies Crawford test (Primary Purpose Test)
Ongoing emergency isn’t only thing to not be testimonial
Just because these statements were not made to police officers does not automatically make it non-testimonial
Rare child would use these statements for criminal proceeding but did not make it a bright line rule
Just because given to authorities does not make it testimonial (or if it helps prosecutions case it is not automatically testimonial)
The teachers were resolving an ongoing emergency. Other factors showing that L.P.’s statement was not testimonial were the informal setting of the interrogation and L.P.’s young age. The primary purpose of the teachers’ questions was to ensure that L.P. was out of harm’s way, not to elicit testimony from him for a potential court proceeding. L.P.’s testimony is admissible because it is not testimonial and is therefore not subject to the Confrontation Clause. The state supreme court’s judgment is reversed.
Giles v. California (confrontation)
A defendant’s wrongful conduct forfeits his confrontation right only if the conduct made a witness unavailable and the accused intended to prevent the witness’ trial testimony
