My notes 2 Flashcards

1
Q

E: M testifies that T (co-conspirator) said “B wasn’t involved, it was A. Admission by party opponent?

A

No. It wasn’t in furtherance of the conspiracy, during the course of the conspiracy, or offered against the party who spoke.

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2
Q

Williamson rule (for statement against interest)

A

Look at a statement piece by piece and only admit part that’s against interest.

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3
Q

Then existing mental, emotional, or physical condition

A

Hearsay exception.
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.

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4
Q

Short version of state of mind exception

A

1) a statement of a) the declarant’s then-existing i) state of mind, ii) emotional condition, III) sensory condition, or iv) physical condition, 2) not including a statement of memory or belief to prove the fact remembered or believed a) unless it relates to the validity or terms of the declarant’s will.
3) statements of memory are expressly exluded from the exception
4) statements of intention are included in the exception.

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5
Q

State of mind vs similar that are not hearsay

A

State of mind = hearsay exception
Circumstantial evidence of state of mind = not hearsay
Effect on the state of mind of the hearer = not hearsay
state of mind is different than present sense impression (which is also an exception)

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6
Q

A: “I love sally”. Offered to prove A loved sally at that moment. Admissible?

A

Yes, state of mind (direct evidence) exception

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7
Q

B says “S is the best person in the world” offered to prove that he loves S.

A

Exclusion. Circumstantial evidence of D’s state of mind.

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8
Q

A says “I love S” to prove that B is jealous

A

Not hearsay because effect on hearer

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9
Q

W: “P is distasteful to me” admissible to show that he is distasteful to her?

A

Yes, hearsay but state of mind exception

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10
Q

W: He bought me flowers, he took me to dinner, he took me for a ride, he gave me a good time, to husband. To show D did those things?

A

No. This is hearsay and doesn’t fit into the exception (because its a memory showing facts remembered).

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11
Q

W: He brought me flowers, he took me to dinner, he took me for a ride, he gave me a good time. To show that wife wants to hurt husband’s feelings?

A

Yes, not hearsay because it is circumstantial evidence of state of mind.

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12
Q

Can you use intent to engage in a future act as a state of mind exception?

A

Yes.

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13
Q

Hillmon doctrine (statements of intenion)

A

Statements regarding plan or intention may be admissible to prove that the plan or intention was acted upon.
a) falls within the 803(3) exception
b) can prove that the person had that state of mind in mkaing that statement and that they acted on that intention.

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14
Q

W: “H poisoned me.” Admissible under SOM?

A

No because it is a belief/backwards looking.
Could get in as circumstantial evidence of state of mind of being non-suicidal. But it is very likely to be used for the prejudicial effect.

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15
Q

E: W’s letter saying he intended to go with H to Colorado. To show they both went to Colorado?

A

Yes, under SOM exception. This is the Hillmon doctrine. Hearsay but gets in.

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16
Q

L: “I’m going to meet A at 9:30 at the restaurant to pick up MJ a promised to give me? To show that L went to the restaurant? To show that L met A? To show A promised MJ?

A

Hillmon doctrine: yes (majority)
Hillmon doctrine: Controversial
Hillmon doctrine: NO (backwards looking).

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17
Q

S wants to offer testimony of B that 2 days before assault, J said “the day after tomorrow, I’m going to start a fight with S.” Admissible to show intent to start a fight?

A

Yes. SOM. Under Hillman Doctrine. Presumption that people will act the way they say they will act.

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18
Q

G said”I saw J start that fight with S.” Admissible?

A

No. Backwards looking so no SOM.

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19
Q

S charged with murdering J. S claims that she was in another city that day. P wants to present B as a witness to testify that on morning of J’s death he heard J say “I’m planning to spend some time with S this afternoon,” in order to prove that he spent time with S on the date of his death. Admissible?

A

Minority of courts follow leg history restriction (you can’t use Hillmon to prove actions of another person). Majority goes with ACN/Pheaster (full force Hillmon doctrine). Some courts will allow the inference when there’s some corroboration of the activity of the other individual.

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20
Q

“I plan to cut J out of my will.” to show that the person had that intention had carried through that intention?

A

Yes. SOM Hillmon. Also will exception.

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21
Q

“I feel sick” to prove they were feeling sick at that very moment?

A

Yes, statement of them existing physical condition.

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22
Q

“I do believe that I feel sick.” Admissible?

A

Yes. It’s the exact equivalent of something we would allow. You can also add “I believe” when you’re looking inward. “I believe” matters when looking outward. That is inadmissible hearsay.

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23
Q

“I felt sick to my stomach all last week.” Admissible?

A

Not under SOM because backwards looking, but maybe a statement made for medical diagnosis or treatment.

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24
Q

Statement made for medical diagnosis or treatment

A

admissible hearsay if a statement that
a) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and
b) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Note: Statement is made by the person seeking diagnosis.
Note2: Statement does not have to be to a doctor.

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25
Q

Statement for medical purpose shorthand

A

1) made for medical diagnosis or treatment, and, 2) reasonably pertinent to diagnosis or treatment, 3) describing medical history, past or present symptoms or sensations, their inception, or their general cause.

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26
Q

“I fell on my arm, doc, and felt the bone snap. Now it is completely numb. Offered to prove all of those things?

A

Yes, under medical diagnosis. Under SOM only numbness would be admissible.

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27
Q

J is riding as a passenger in S’s car. Moments before an accident they have, J says to S in a clam voice “hmmm that red car is kind of weaving in its lane.” Moments later there is a crash. Is this admissible?

A

Yes. PSI.

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28
Q

10 minutes after car crash, J shaking, pale, says to motorist who stopped “that fool in the red car did this to us.” Admissible?

A

Yes, EU

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29
Q

J, in slow calm voice, tells a passerby who chanced upon scene of car crash “it’s funny how peaceful I feel under these circumstances.” Admissible?

A

Yes, state of mind

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30
Q

S “my leg hurts like crazy”

A

Yes SOM (physical condition). Possible medical treatment based on further facts (this would be a 104(a) preliminary. Also PSI. Possibly EU depending on more facts.

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31
Q

45 minutes after accident, S tells ambulance attendant, after saying my leg hurts like crazy, “its the same leg that I broke five years ago.” Admissible?

A

Yes, if for medical diagnosis or treatment. This would be a 104(a) question.

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32
Q

1 hour after a crash, S says to doctor at hospital “I hurt my leg in an automobile collission.” Can it be used to show ti was hurt in an automobile collision?

A

Yes for medicla diagnosis or treatment. It could give the doctor better insight into the injury.

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33
Q

“I hurt my leg in a head on collision, when the red car crossed the line and smashed into us.” Admissible?

A

First half ok, second is to specific for medical diagnosis/treatment. It simply isn’t relevant.

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34
Q

Statement as to fault for medical/treatment exception?

A

Statements as to fault don’t ordinarily qualify under medical diagnosis/treatment exception (although expections for domestic violence, especially when children involved, because the perpetrator is relevant to the treatment plan).

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35
Q

4 months after car crash, S says to doctor hired by her lawyer to serve as an expert witness in the case “My knee slammed really hard against the dashboard during the crash, it hurt terribly and has never been the same.” Witness not hired to treat S at all. Admissible?

A

Current federal rules: Yes, because it is made for diagnosis.
ACN: Says they traditionally weren’t admissible, but expert could state the basis of their opinion, including statements of this kind.

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36
Q

Motorist who witnessed a crash approached the ambulance attendant and said, referring to S, “see those cuts, she got those when she was dragged out of the car and across the gravel.”

A

Admissible. It is still for medical diagnosis/treatment. It doesn’t matter that it isn’t for the speakers medical diagnosis/treatment.

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37
Q

Identity of the abuser relevant for medical diagnosis/treatment?

A

Yes.

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38
Q

Statement to a babysitter or caseworker identifying domestic violence perpetrator?

A

Not if not made for purpose of getting medical treatment (maybe if it was made so babysitter or doctor could communicate info to doctor then it would be admissible).

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39
Q

Statement under the belief of imminent death

A

Admissible if the declarant is unavailable as a witness and:
in a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

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40
Q

Evidence in murder trial. Just before dying, with blood spurting out, “J has killed me by stabbing this dagger into my chest.”
Admissible?

A

Yes, belief of imminent death.

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41
Q

Dying declaration shorthand

A

A statement 1) by an unavailable declarant, 2) made while believing death to be imminent, 3) about its cause or circumstances, 4) in a homicide prosecution or civil case.

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42
Q

How soon must declarant expect their death to be for dying declaration?

A

They have to believe it to be imminent. It doesn’t have to be immeidate. A very short distance indeed. If he thinks he will die-tomorrow it will not do.

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43
Q

How certain a belief of death for dying declaration to apply/

A

A settled, hopeless expectation of death. Abandoned all hope of living.

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44
Q

Where does witness knowledge have to come from when witness unavailable?

A

Has to come from direct observation. it can’t just be their opinion based on circumstances. Only applies to what the declarant would have been able to testify to in court, under oath.

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45
Q

Suicide note and dying declaration?

A

Not certain that death is imminent while writing the note. They have time to think about the words they are writing and they might change their minds. Whether or not they die is in their hands. Not admissible.

46
Q

statement of prior identification

A

A declarant-witness’s prior statement is not hearsay (exclusion) if the declarant testifies and is subject to corss examination about a prior statement and that statement
c) identifies a person as someone the declarant perceived earlier.

47
Q

Statement of prior identification shorthand

A

A prior statement is not hearsay if 1) it identifies a person, 2) as someone the declarant perceived earlier, 3) provided that the declarant testifies, 4) and is subject to cross-examination about the prior statement.

48
Q

St. v. S for robbery of J. J testifies that S robbed him and points to her in court identifying her. Police offer gets on stand and testifies that he attended a pre-trial lineup. He saw J point to S at the pre-trial lineup. Admissible?

A

Yes, so long as J testifies at some point and is subject to cross-examination about the prior statement. If J isn’t their, then this can’t be done.

49
Q

St. v. S for robbery of J. J fails to identify S in Court. could police officer take the stand and testify that J had earlier identified S in a lineup?

A

Yes, if J is subject to cross-examination about the prior statement. J has to be available for that.

50
Q

J can’t remember anything about a lineup. Can officer who witnessed lineup testify about it?

A

Yes, as long as J available for cross, because the memory loss can be brought out on cross.

51
Q

J identifies S at lineup. Is to sick to come to the trial (was well at time of lineup). Officer wants to testify about what happened at lineup. Admissible?

A

No, because J is unavailable to testify under 801.

52
Q

J testifies at trial. Testifies that he couldn’t see assailant and that they never saw their face. But he did see their car and has a good memory about the car. Police officer wants to testify that J told him, that’s the car of the person who robbed me. Admissible?

A

No. For identification exclusion to apply it has to be the person who was identified.

53
Q

J saw the assailant, S. Later J picked her picutre out of a photo array. No real people there at all. Just pictures. Would this be admissible if J testifies and is subject to cross-examination of the photo array?

A

Yes, as a prior indentification.

54
Q

Tools to refresh memory of forgetful witness:

A

1) leading, 2) leaving it for a moment and asking about something associated with it, 3) refresh with an exhibit, 4) if (3) fails, past recollection recorded.

55
Q

Is refreshment a hearsay exception?

A

Refreshment is not an exception to hearsay, because there is no hearsay.. It is just an examination technique.

56
Q

Is past recollection recorded a hearsay exception?

A

Yes.

57
Q

Past recorded recorded

A

Hearsay is admissible if:
There is a record that:
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 knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

58
Q

Past recollection recorded shorthand

A

A record 1) on a matter the witness once knew about, 2) but now can’t recall fully and accurately, 3) made or adopted by the witness, 4) when the matter was fresh in the witness’s memory, 5) and that accurately reflects the witness’s knowledge, 6) may be read into evidence, but not received as an exhibit (except when offered by an adverse party).

59
Q

Rutherford’s report contains transcripts of his interviews with two of Sana’s co-workers, and with Sana’s immieidate supervisor.
Rutherford is an insurance agent, working for an insurance company, hired by Hawaiian cruises.
Rutherford report: “1) The co-workers said, 2) Sana was behaving abnormally and 3) Sana told us that a) he bumped his head at work and b) that he felt sick.”
Sana has a claim for maintenance and cure.

Admissible?

A

1) Business record report (no problem with it being five days after the event), 2) admission by party opponent (employees of party), 3) a) no key b) state of mind [court says both are sense of mind, but it’s really just b. A is backwards looking]
Isn’t report made in preparation of litigation? It doesn’t matter here. It wasn’t made by Hawaiian Cruises, but by the insurance company, and it is Sana who is trying to get the info is. There is no incentive for the insurance company to falsify in favor of Sana. This makes it trustworthy.
When you have an added element of trustworthiness (like the report being made for the other side) it will likely get in. The trustworthiness element is the key to problems like Palmer.

60
Q

Public record exception

A

hearsay admissible if:
(8) Public records. 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.
[observations of law enforcement ok if used against government or in civil case, but not against D in criminal case, assuming it was part of a legally authorized investigation].

61
Q

Public records shorthand

A

Public Records Exception: 1) A record of public office setting out activities of the office (internal stuff), a matter observed while under a legal duty to report (except by law enforcement personnel in criminal cases), or factual findings from a legally-authorized investigation (except when offered against the accused in a criminal case, and, 2) no showing of untrustworthiness by the opponent.
Note: Can be a statement, doesn’t have to be a formal record
Note: Does not have to be at or near the time. Does not have to be in regular course of office.

62
Q

Are public records self-authenticating?

A

Yes. They require no extrinsic evidence of authenticity to be admitted, if the copy is certified as correct by the custodian or another person authorized to make the certification.

63
Q

Does business record exception include public office?

A

yes.

64
Q

Mine explosion. 1 week investigation by bureau of mines. Report published 3 weeks after explosion. Focuses on extent of damage in coal mine based on what investigators saw with their own eyes. If offered in wrongful death to show the nature of the explosion is it admissible?

A

Yes as a public record (under II). Could time lapse make it untrustworthy? People could have forgotten between observation and making the report. [burden on opponent to make this argument]. If business record? Probably not, not timely enough.

65
Q

Mine explosion. Bureu of Mines talk to people who were there shortly after. Looks like factual findings. Is there a Johnson v. Lutz problem for public records, because factual findings are based on the statements of an outsider?

A

No. If factual finding there is no Johnson v. Lutz problem. But, if no factual finding, and under (i) or (ii) there is a Johnson v. Lutz problem.

66
Q

Assume report made immediately after talking with people about extent of damage from coal mine accident. Investigator is bureau of mines. Admissible?
What if Report describes bureau’s conclusion that explosion caused by inadequate ventilation in the mind. This is based upon conflicting information they gathered from a variety of sources, including outside information. Admissible in wrongful death case under public records?

A

Admissible as a business record exception in a wrongful death case to show extent of damage? No. Johnson v. Lutz problem. You need two keys. Can only get through first door.
Report describes bureau’s conclusion that explosion caused by inadequate ventilation in the mind. This is based upon conflicting information they gathered from a variety of sources, including outside information. Admissible in wrongful death case under public records? Yes (see Beech Aircraft v. Rainey).

67
Q

Do factual findings include opinions and conclusions?

A

Yes

68
Q

Mine case. Child dies. Owner charged with murder. Can Bureau of Mines report be used against owner?

A

Admitted over hearsay objection as public record? No. Can’t be used against D in criminal case under (ii) or (iii) and it isn’t about the activities of the office. This is (iii)?

69
Q

Parallel police investigation into mine incident. That very day, police officer acting in regular course of duties, goes to scene and writes down report. Admissible in manslaughter case under public records exception?

A

No. See (ii). Would be admissible in civil wrongful death case. In criminal case, can it be used against government? No (although some courts don’t read ii strictly and let it be used).

70
Q

Police investigation admissible against mine owner, in criminal manslaughter case, under business records exception?

A

you have a problem with the confrontation clause (See U.S. v. Oats, if it doesn’t fit within public records exception because of these provisos regarding criminal cases, then it can’t come in under the business record exception either).

71
Q

If public records exception doesn’t apply because of provisos regarding criminal cases, can it come under bsuiness record exception?

A

No.

72
Q

Residual hearsay exception

A

A statement is admissible over hearsay objection if 1) supported by sufficient guaranttes of trustworthiness that is 2) more probative on the point than any other reasonably available evidence, if 3) reasonable notice in writing is gven before the trial or hearing (unless excused for good cause).

73
Q

Confrontation clause

A

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

74
Q

Who does the confrontation clause apply to?

A

criminal defendants only.

75
Q

What does the confrontation clause require under Ohio v. Roberts (old standard)

A

Unavailable + hearsay exception or indication of trustworthiness

76
Q

Ohio v. Roberts (old confrontation clause) shorthand

A

When a hearsay declarant is not present, the confrontation requires: 1) unavailability of the declarant (“normally”), and 2) adequate indicia of reliability, which can be satisfied by either a) a firmly rooted hearsay exception, or b) particularized guarantees of trustworthiness.

77
Q

Confrontation rule for non-testimonial hearsay?

A

For nontestimonial hearsay, it is consistent with the framers’ design for a state 1) to follow the approach of Roberts, or 2) to exempt such statements from Confrontation Clause scrutiny altogether (second is adopted in Davis v. Washington).

78
Q

For testimonial hearsay (confrontation clause)

A

For testimonial hearsay, the 6th Amendment requires 1) unavailability of the declarant, and 2) a prior opportunity for cross-examination of the declarant.

79
Q

What is the difference between testimonial and nontestimonial evidence?

A

Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

80
Q

What is non-testimonial

A

1) Primary purpose of interrogation 2) is a purpose other than creating record for trial, a) including, but not limited to, responding to an ongoing emergency).

81
Q

What is testimonial

A

1) primary purpose of interrogation is 2) to create a crecord for use at trial, that is 3) to create an “out-of-court substitute for trial testimony.”

82
Q

How to determine primary purpose of interrogation

A

Its a combined inquiry (reasonable person stadnard and can use from police and declarant perspective too).

83
Q

“He is here, jumping on me again. He is using his fists” to 911 operator. Then “he is running now.” Is this testimonial?

A

Note present tense.
No, this is non-testimonial.

84
Q

Police respond to call of domestic disturbance. Question at scene. “There was an argument, but its better now.” - husband. Talked to each separetely. Wife gives account and fills out and signs a battery affidavit. “Broke lamp and phone, hit me in chest and threw me down. Attacked my daughter. Testimonial?

A

Note past tense. Yes.

85
Q

When are statements non-testimonial? When are they testimonial?

A

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
This comes to be known as the primary purpose test.
More formal = more likely testimonial. More formal in Hammond (separate conversation with officers, sworn affidavit) vs less formal in Davis (911 call).

86
Q

Police find someone bleeding out at 3:25 AM. Ask about what happened, who shot him, where. They are told that Rick shot him at 3 AM.
Says he was talking to Rick through a door and was shot in the back when he turned to leave.
Admissible over confrontation clause?

A

It is non-testimonial.
After Davis there is no confrontation clause if it is non-testimonial.
Why is it non-testimonial? This is an ongoing emergency. Consider perspective of both victim and cops. When cops were called their was nothing to suggest that the emergency had ended.

87
Q

How do you determine primary purpose?

A

You look at the perspective of both parties to determine the primary purpose of the investigation. Why not just look at it from the view of the victim? The victim isn’t thinking of anyone else, the police are worried about the public at large.
Other factors matter as well here to determine the primary purpose: What questions the police are asking, is there a continuing danger to the public (here he had a gun which makes him a bigger and more distant threat).
Implicit in Davis is idea that because of possibility of fabrication when looking????. This sounds like Roberts.

88
Q

statements in ancient documents

A

Hearsay exception if
A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

89
Q

Statements in learned treatises, periodicals, or pamphlets

A

Hearsay exception if
A statement contained in a treatise, periodical, or pamphlet if:
a) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
b) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.

90
Q

3-year old abuse victim’s statements admissible over confrontation clause?

A

Yes. Primary purpose of questioning ongoing emergency to identify threat to child.
Statements by young children rarely, if ever, are testimonial, especially if made to non-law enforcement.
Statement to mandatory reporter (by mandatory reporter???) usually not testimonial.

91
Q

Statement offered against a party that wrongfully caused the declarant’s unavailability

A

A statement is admissible over hearsay objection if:
A statement offered against a party that wrongfully caused – or acquiesed in wrongfulyl causing – the declarant’s unavailability as a witness, and did so intending that result.

92
Q

Facts: D shot ex-gf. D says self-defense.
Evidence: Gf told police D abusing her and threatened to kill her.
Trying to get in via forfeiture by wrongdoing?

A

D did not forfeit CC unless D killer her intending her unavailability as a witness.
Decided on preponderance standard.

93
Q

What stanandard is used when you have to decide guilt determine admissibility?

A

Preponderance

94
Q

Non-hearsay due to being used to prove something other than truth of the matter asserted and CC?

A

No CC issue if not hearsay

95
Q

CC and co-conspirator statemetns?

A

Not usually CC becuase usually non-testimonial (in furtherance of conspiracy)

96
Q

Former testimony and CC

A

NO CC if it meets elements (because opportunity to cross)

97
Q

CC and business records

A

Usually not testimonial, unlles prepared for litigation. Sometimes applies.

98
Q

Prior identification and CC

A

NO CC issue (not hearsay and they’re available at trial)

99
Q

Past recollection recorded and CC

A

No CC issue because witness available at trial

100
Q

Dying declaration and CC

A

No CC issue even if testimonial (historic exception), unless forfeiture exception (they killed intending unavailability).

101
Q

Forensic lab results and CC

A

Testimonial when made for trial. Usually CC issue, most say D can demand to confront the analyst.

102
Q

Medical diagnosis and CC

A

Typically non-testimonial for purpose treatmnet/diagnosis. Might need more scrutiny if diagnosis is for trial

103
Q

Ways to impeach

A

1) Prior inconsistencies, 2) showing witness’s bias (prejudice, special relationship, interest in outcome), 3) contradicted by other witnesses/evidence, 4) challenge the witness’s memory, 5) perception or interpretation, 6) character of witness (ex. Truth and veracity).

104
Q

Can you impeach your own witness?

A

Yes.

105
Q

Rule 607 who may impeach a witness.

A

Any party, including the party that called the witness, may attack the witness’s credibility.

106
Q
A
107
Q

Hogan and someone else busted for smuggling marijuana.
At grand jury, and under oath, other person [Carpenter] says Hogan had nothing to do with it. Hogan is charged with perjury.
Opening statement of Hogan trial, prosecutor says they expect other person to lie, and they will impeach him with his confession.
Defense wants to voir dire witness outside of jury’s presence. This is under oath.
On voir dire he says Hogan was not involved.
Then prosecutor calls other person at trial. Says Hogan not involved. On cross by defense, they bring in the confession (that had already been discussed on direct). Say it was made because of torture.
Then DEA agents get called. All four testify that he said this and there was no torture.
Problem in larger case: Primary purpose was not to impeach them, it was to impeach them so they could admit evidence that would otherwise be inadmissible. is this allowed?

A

1) You can’t call a witness for the primary purpose, 2) of impeaching the witness, 3) with evidence that is otherwise inadmissible.

108
Q

Can you call a witness for the primary purpose of impeaching the witness with evidence that is otherwise inadmissible?

A

No.

109
Q

E1: Carpenter’s confession implicating the Hogans.
FP1: Hogans were indeed involved in the drug smuggling conspiracy. This would be hearsay without an exclusion or exception. Can it be used for impeachment when primary purpose is to get it in?

A

This turns into something resembling a 403 analysis.
Attacking credibility of something with zero probative value (because it can’t get in) doesn’t have any probative value.

110
Q

Does counsel waive grounds for appeal by following judges ruling?

A

Counsel doesn’t waive by acting in accord with the judges decision.

111
Q

Seattle, July 14: Crime
Defense alibi witness says D was in Portland on July 14. Impossible to have been in Seattle at time of crime (direct, defense).
Oswald had been in restaurant every day for the last couple of months (cross, prosecutor).
Rebuttal Case (by prosecutor): Police detective testifies that they talked to Oswald in Seattle on June 12th and Oswald said he had been in Seattle for a few days.
Was this rebuttal evidence appropriate in impeachment of witness

A

No.
This would be impeachment by contradiction.
This is irrelevant except for its value in contradicting the witness.