Hearsay

Question 1

Rule 802 Inadmissibility

Answer 1

Hearsay is not admissible unless any of the following provides otherwise:
- a federal statute;
- these rules; or
- other rules prescribed by the Supreme Court.

Question 2

risks posed by hearsay

Answer 2

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

Question 3

801 hearsay definition

Answer 3

(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)

Question 4

Statement definition

Answer 4

“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 5

Witness and Declarant definitions

Answer 5

“Witness” means person who repeats hearsay statement in court

“Declarant” means the person who made the statement.

Question 6

Hearsay Analysis

Answer 6

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

Question 7

Grimes v. Employers Mutual Liability Insurance (video hearsay)

Answer 7

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

Question 8

United States v. Jackson (questions for hearsay)

Answer 8

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

Question 9

Statements that are NOT HEARSAY because they are not offered to prove the truth of the matter asserted:

Answer 9

○ 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

Question 10

Statements of Independent Legal Significance or Verbal Acts (VEDCI)

Answer 10

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

Question 11

United States v. Ping

Answer 11

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)

Question 12

Statements Offered to Show Their Effect on The Listener

Answer 12

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

Question 13

Mclure v. State (effect on listener)

Answer 13

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)

Question 14

Conduct or Statement Offered to Show Declarant’s Implied Belief

Answer 14

-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

Question 15

Statements Offered As Circumstantial Evidence to Show Declarant’s State of Mind

Answer 15

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

Question 16

Loetsch v. New York City Omnibus (circum evidence to show declarant’s state of mind)

Answer 16

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)

Question 17

Statements Offered to Impeach

Answer 17

Anything showing witness is contradicting themselves would not be hearsay because it is not for the truth but for impeachment purposes

Question 18

805: Hearsay within hearsay

Answer 18

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

Question 19

801 (d) Hearsay Exclusions (two umbrella categories)

Answer 19

○ 801(d)(1) Prior Statements by the Witness
○ 801(d)(2) Admission by Party-Opponent

Question 20

Exclusion- Prior Statements by the Witness

Answer 20

1. Declarant must be on stand testifying and subject to cross examination
2. Statement made during trial, hearing, proceeding, deposition (not sworn statement, affidavit, or interrogation)
3. 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.

Question 21

Exclusion: An Opposing Party’s statement

Answer 21

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

4. Statement by a party’s agent (Must ONLY be employed by
   opposing party (and statement
   made during relationship and
   within its scope)
5. 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

Question 22

United States v. Mornan (801d inconsistent)

Answer 22

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

Question 23

Tome (801d consistent)

Answer 23

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

Question 24

United States v. Lewis (801d identification)

Answer 24

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)

Question 25

Jordan v. Binns (801d2 opposing party statement)

Answer 25

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

Question 26

United States v. Miller (adopted statement express or implied)

Answer 26

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)

Question 27

Mahlandt v. Wild Canid Survival (party agent or employee working within the scope admission)

Answer 27

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)

Question 28

Bourjaily v. US (conspirator admission)

Answer 28

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

Question 29

Hearsay exceptions (regardless if they are available)

Answer 29

(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

Question 30

Present Sense Impression Exception

Answer 30

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”

Question 31

Schindler v. Seiler (Present Sense Impression)

Answer 31

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.

Question 32

Excited Utterance exception

Answer 32

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

Question 33

City of Dallas v. Donovan (excited utterance)

Answer 33

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)

Question 34

Then Existing Mental, Emotional, or Physical Condition exception

Answer 34

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

Question 35

Mutual Life Insurance v. Hillmon (Hilmon Doctrine) then existing mental

Answer 35

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

Question 36

Casualty Insurance Co v. Salinas (then existing physical condition)

Answer 36

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.

Question 37

Statements for Purpose of Medical Diagnosis or Treatment

Answer 37

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)

Question 38

State v. Moen (medical diagnosis)

Answer 38

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.

Question 39

Recorded Recollection

Answer 39

(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

Question 40

Records of Regularly Conducted Activity

Answer 40

1. Evidence must be a memorandum, report, record, or data compilation in any form
2. Evidence must be proffered by a witness who is the custodian or other qualified witness
3. Record must have been made
   * By a person with personal knowledge OR
   * From information transmitted by a person with
   personal knowledge
4. Record must have been made at or near time of
   acts, events, conditions, opinions, or diagnoses in
   it
5. Record must be made as part of regular practice
   of business
6. Record Must have been kept in the course of
   regularly conducted business (so if made in anticipation of trial it does not count)

Question 41

Keogh v. Commissioner of Internal Revenue (regularly record conducted activity)

Answer 41

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

Question 42

Absence of Entry in Records Kept in Accordance with 803(6)

Answer 42

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.

Question 43

Public Records and Reports

Answer 43

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

Question 44

Beech Aircraft v. Rainey (investigative report)

Answer 44

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.

Question 45

804 exceptions (declarant not available)

Answer 45

(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)

Question 46

804 analysis (declarant not available)

Answer 46

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

Question 47

what does unavailable mean?

Answer 47

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!!!

Question 48

Prior testimony (unavailable)

Answer 48

1. Declarant must be unavailable
2. Declarant must have testified in a prior proceeding
3. 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

Question 49

United States v. Dinapoli: prior testimony

Answer 49

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

Question 50

Dying declaration (unavailable)

Answer 50

1.Declarant Unavailable

2. Criminal Prosecution for homicide or any civil case
3. 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)

5. 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

Question 51

Statement Against Interest (unavailable)

Answer 51

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

Question 52

Statement of Personal or Family History (unavailable)

Answer 52

) 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.

Question 53

Forfeiture by wrongdoing (unavailable)

Answer 53

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.

Question 54

United States v. Gray (forfeiture by wrongdoing)

Answer 54

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

Question 55

Last step in hearsay: confrontation clause

Answer 55

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

Question 56

Two ways confrontation clause not violated by introduction of hearsay:

Answer 56

1. Declarant testifies at trial and subject to cross on hearsay statement
2. Declarant unavailable at trial and prior statement was made under oath and subject to cross-examination by defendant

Question 57

Crawford v. Washington (confrontation clause)

Answer 57

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:

1. Is it hearsay?
2. Does an exception apply?
3. Is it offered against a defendant in a criminal case?
4. 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

Question 58

rule for confrontation clause (crawford v. washington)

Answer 58

NEW RULE: Only testimonial statements implicate the confrontation clause (procedural guarantee not substantive)

Question 59

Examples of testimonial statements:

Answer 59

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

Question 60

Davis v. Washington (confrontation and primary purpose test)

Answer 60

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

Question 61

confrontation (Hammon)

Answer 61

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

Question 62

Melendez Diaz v. Mass (confrontation)

Answer 62

State lab technician’s sworn statement declaring a substance to be cocaine is testimonial and inadmissible
absent the testimony by the certifying chemist

Question 63

Michigan v. Bryant (confrontation)

Answer 63

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

Question 64

Ohio v. Clark (confrontation)

Answer 64

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.

Question 65

Giles v. California (confrontation)

Answer 65

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