hearsay new exceptions & confrontation

Question 1

FRE 807

Answer 1

even when not specifically covered by 803, 804 –> hearsay still not excluded when:

1) equivalent circumstantial guarantee of trustworthiness, 2) offered as evidence of material fact, 3) more probative on the point than other reasonably obtainable evidence, 4) and serves interest of justice

must give reasonable notice

Question 2

crawford rule

Answer 2

FOR CRIM D ONLY—If testimonial evidence, 6th amendment requires: unavailability + prior opportunity to cross-ex (at minimum covers: prior testimony and prelim hearing, before grand jury or at former trial; and police interrogations

if nontestimonial hearsay: states can use their own hearsay law and doesn’t implicate 6th amendment

Question 3

post-crawford examples

Answer 3

to assess whether statement made during police interrogation are testimonial, apply a “primary purpose” test distinguishing b/t statements aimed primarily to assist criminal investigation and those aimed primarily to resolve an ongoing emergency.

confrontation clause offers no protection against admission of non testimonial statements, even if unreliable
D’s wrongful conduct forfeits his confrontation right only if that conduct 1) made witness unavailable and 2) the accused intended to prevent the witness’s testimony at trial

A state lab tech’s sworn statement declaring a substance that D possessed to be cocaine is testimonial and therefore inadmissible absent testimony by the certifying chemist

A dying gunshot victim’s answers to police questions about who shot him were not testimonial b/c the gunman’s unknown motives, intentions, and location created an ongoing emergency

An analysis of the D’s BAC certified by an absent state lab tech is testimonial and inadmissible even though another tech testified about the procedures followed and equipment used in such an analysis

testimony by expert witness who relies heavily on the lab report of an absent tech does not violation Confrontation Clause, at lest where author of the underlying report did not know if results would aid the prosecution

Question 4

hearsay and confrontation

Answer 4

only applies to statements offered for their truth

only protects crim Ds

D’s past chance to cross-x unavailable declarant typically satisfies confrontation

only testimonial statements

clearly testimonial: solemn declarations made for purpose of proving some fact in a proceeding. Formalized testimonial materials

clearly nontestimonial: casual and offhand remarks, coconspirator statements, business records created for the administration of an entity’s affairs not for purpose of establishing/proving some fact at trial