Hearsay Part 3

Question 1

Confrontation Clause

Answer 1

Hearsay statement will not be admitted (EVEN if within an exception) where:
- statement is being offered against the accused in a criminal case (NO confrontation for civil)
- dec is unavailable
- statement was testimonial in nature AND
- accused had no opportunity to cross-examine declarant’s testimonial statement prior to trial

• def forfeits confrontation rights if committed wrongful act intended to keep witness from testifying

Question 2

Residual Catch-all Exception of Federal Rules

Answer 2

Conditions for admission:
- must possess sufficient guarantees of trustworthiness
-> consider totality of circumstances in which the statement was made and any evidence that corroborates the statement
- must be strictly necessary (more probative as to the fact for which offered than any other ev proponent can reasonably produce)
- proponent must give reasonable notice to adversary as to their intent to offer the statement, including:
1) substance of the statement
2) name of declarant
-> notice must generally be given in writing in advance of trial or hearing, but may be given in any form during trial or hearing if court for good cause excuses lack of earlier notice

Question 3

Testimonial Statements - Basic Concept

Answer 3

• includes sworn testimony (grand jury, prior trial, preliminary hearing)
• also includes statements to law enforcement + certain docs

Question 4

Testimonial - Statements Made to Law Enforcement

Answer 4

• whether statement in response to police interrogation is testimonial depends on primary purpose
• NOT testimonial if made to aid in ongoing emergency
  -> factors for emergency analysis include 1) nature of the dispute, 2) whether the perpetrator is still at large, 3) scope of threat to victim + the public AND 4) type of weapon involved
• IS testimonial when primary purpose of interrogation is to provide info for later prosecution

Question 5

Confrontation Clause - Affidavits or Written Reports of Forensic Analysis

Answer 5

• affidavits, certificates or other written reports that summarize findings of forensic analysis + have effect pf accusing a targeted indiv of crim conduct ARE testimonial
• cannot be admitted unless def had opp to cross-examine author of report
• testimony of analyst’s supervisor who was not involved in testing is NOT sufficient to admit results
• BUT such reports may be used for nonhearsay purposes
  -> no confrontation clause violation if forensic expert makes only a general reference to nontestifying analyst’s report to demonstrate a partial basis for their opinion

Question 6

Hearsay and Due Process

Answer 6

• hearsay rules and other exclusionary rules of ev cannot be applied where such application would deprive accused of their right to fair trial or deny their right to compulsory process