Short & Happy Guide Chapter 8: The Hearsay Rule and the Confrontation Clause

Question 1

The _________ _______ only applies in criminal cases.

Answer 1

confrontation clause

Question 2

The Confrontation Clause only applies In ______ cases.

Answer 2

criminal

Question 3

When a defendant is on trial and a hearsay statement is to be used against that defendant, then the defendant has the right to confront and cross-examine the witness who made the statement against her. This is referred to as the _______ ______ Issue.

Answer 3

Confrontation Clause

Question 4

When a defendant is on trial and a hearsay statement is to be used against that defendant, then the defendant has the right to _____ and ______ ________ the witness who made the statement against her. This is referred to as the Confrontation Clause Issue.

Answer 4

Confront

Cross Examine

Question 5

When a defendant is on trial and a hearsay statement is to be used against that defendant, then the defendant has the right to confront and cross-examine the witness who made the statement against her. This is referred to as the Confrontation Clause Issue.

However, if the ______ is present in the courtroom and subject to _____ ______ then there is NO confrontation clause issue.

Answer 5

declarant

cross examination

Question 6

The 6th amendment confrontation clause in the United States Constitution, and its impact on hearsay in criminal cases, arose with the case of _____________.

Answer 6

Crawford v. Washington

Question 7

In Crawford, the defendant was charged with assault and attempted murder after stabbing a man who allegedly tried to rape his wife.

At trial, the prosecution sought to introduce into evidence a recorded statement by the wife describing the stabbing to the police.

The trial court allowed the tape to be played for the jury and convicted Mr. Crawford. The wife was unavailable to testify at trial because of the state’s marital privilege.

The Washington Court of Appeals reversed the conviction, holding that the taped statement violated Crawford’s 6th amendment confrontation right. The Washington Supreme Court reversed, agreeing with the trial court that the statement bore guarantees of trustworthiness and reinstated the conviction.

The United States Supreme Court held that under the 6th amendment, a defendant has the right to _______ the witnesses who provide ________ statements against him and ____ ______ those witnesses.

Answer 7

confront

testimonial

cross examine

Question 8

__________ ________ are those that the declarant would reasonably expect to be used by the prosecution.

Answer 8

Testimonial Statements

Question 9

Crawford left us with the rule that __________ ________ of unavailable witnesses are admissible only where the defendant had a prior opportunity for cross-examination. In this case, the wife’s taped statement against Mr. Crawford was considered testimonial because it was made to law enforcement officials in an interrogation, and the wife, knew, or should have known, that the statement was going to be used at the subsequent trial. Thus, because the wife is unavailable at trial based upon the marital privilege, and because Mr. Crawford did not have an opportunity to cross-examine the wife as to the statement, its admission would violate the _________ ________. Therefore, the statement was held to be inadmissible.

Answer 9

testimonial statements

confrontation clause

Question 10

The determination of whether a statement is excluded by the hearsay rule and the determination as to whether a statement is excluded by the Untied States Constitution are ________ analysis.

Answer 10

Separate

Question 11

If the hearsay rule exclude a statement, then there is no reason to evaluate the statements under the 6th amendment.

Likewise, if a statement violates the 6th amendment, it cannot be admitted, and a hearsay analysis is unnecessary. Nevertheless, it makes sense to follow an order. True or False.

Answer 11

True

Question 12

Each of the following requirements must be met before the Confrontation Clause exclusion applies. Note, however, that even though a statement meets an exception to the hearsay rule, if the following requirements are met, then the statement will not be admitted:
1. ?
2.
3.
4.
5.

Answer 12

1. The case is criminal

Question 13

Each of the following requirements must be met before the Confrontation Clause exclusion applies. Note, however, that even though a statement meets an exception to the hearsay rule, if the following requirements are met, then the statement will not be admitted:
1.
2. ?
3.
4.
5.

Answer 13

2. The statement is offered against the defendant

Question 14

Each of the following requirements must be met before the Confrontation Clause exclusion applies. Note, however, that even though a statement meets an exception to the hearsay rule, if the following requirements are met, then the statement will not be admitted:
1.
2.
3. ?
4.
5.

Answer 14

3. The declarant is unavailable

Question 15

Each of the following requirements must be met before the Confrontation Clause exclusion applies. Note, however, that even though a statement meets an exception to the hearsay rule, if the following requirements are met, then the statement will not be admitted:
1.
2.
3.
4. ?
5.

Answer 15

4. The statement was testimonial in nature and

Question 16

Each of the following requirements must be met before the Confrontation Clause exclusion applies. Note, however, that even though a statement meets an exception to the hearsay rule, if the following requirements are met, then the statement will not be admitted:
1.
2.
3.
4.
5. ?

Answer 16

5. The defendant had no opportunity to cross-examine the declarant as to the “testimonial statement” prior to trial.

Question 17

The critical question is whether a statement is considered ___________.

Answer 17

testimonial

Question 18

If the primary purpose of the questions asked by law enforcement is to address an ________ _________, then the statements made in response to the questions will generally not be considered testimonial.

Answer 18

ongoing emergency

Question 19

For example, a 911 call that contains statements intended to help the police with an existing emergency would not be considered _________. Note, however, that 911 calls often consist of multiple statements, some of which could be _________ in nature, while others may not.

Answer 19

testimonial

testimonial

Question 20

If the primary purpose of the questions asked by law enforcement is to _________ - i.e., establish past facts relevant to a criminal investigation - then the statements are _________.

Answer 20

investigate

testimonial

Question 21

For example, in one case, also handed down by the Supreme Court, statements that were given after a domestic violence incident were evaluated as to whether they were ________ or not. The court determined that once the immediate threat was neutralized, or otherwise no longer existed, statements from the victim to the police officers, which described the incident, were testimonial.

Answer 21

testimonial

Question 22

Many _______ ______ are easier to evaluate. Reports that summarize findings, or that provide an analysis, are frequently testimonial in nature.

Answer 22

written reports

Question 23

Examples would include a report from a forensic analysis of fingerprints, or a lab report indicating that the drug found was an illegal narcotic. These reports would be ________ in nature, so the declarant would have to be present for _____ _________.

Answer 23

testimonial

cross-examination.

Question 24

Be aware, however, that these reports may be offered for a purpose that would not violate the 6th amendment, such as establishing the _____ of a witness.___.

Answer 24

bias

witness

Question 25

The protection offered by the 6th Amendment is not absolute. When a ________ causes the declarant to be unavailable, she cannot then “hide” behind the protections of the 6th amendment. Under this circumstance, the statement would not be excluded if the defendant intended to keep the witness from testifying at trial.

Answer 25

defendant

Question 26

The 6th Amendment also includes the right to confront the accuser or, in this case to ______ ________ the declarant.

Answer 26

physically confront

Question 27

In one case, a screen was used to separate the defendant from a child victim; the Supreme Court held that this violated the 6th amendment. The Supreme Court has held, however, that the right of confrontation is not an absolute right. In another child-victim case, the Court found it appropriate to permit the child to testify via a one-way closed circuit television.

In the latter case, the Court found the additional safeguards were appropriate and would not violate the right to confrontation if the trial court made specific findings of possible trauma to the child if the child were to testify in the presence of the defendant. !!

Answer 27

!!

Question 28

The Supreme Court has held that hearsay and other exclusionary rules cannot be applied when doing so would effectively deprive a defendant of her 14th amendment _____ _____ right to a fair trial.

Answer 28

due process

Question 29

FRE 804(a)
This rule has 2 requirements:
1. ?
2.

Answer 29

1. It must be shown that the proponent procured, or wrongfully caused, the declarant’s unavailability; and

Question 30

FRE 804(a)
This rule has 2 requirements:
1.
2. ?

Answer 30

2. the procurement, or cause of the unavailability, was done to prevent the declarant from attending or testifying.

Question 31

FRE 804(b) sets out five different instances when hearsay will NOT be excluded by the Hearsay Rule 802. As you now know, these exceptions are not available unless the declarant is unavailable as defined above in FRE 804(a).

Before looking at the exceptions under FRE 804, make sure of the following:
1. ?
2.
3.
4.
Once you have completed each of these steps, then determine whether one of the exceptions under FRE 804(b) apply:

Answer 31

1. Hearsay is present FRE 801(a)-(c)

Question 32

FRE 804(b) sets out five different instances when hearsay will NOT be excluded by the Hearsay Rule 802. As you now know, these exceptions are not available unless the declarant is unavailable as defined above in FRE 804(a).

Before looking at the exceptions under FRE 804, make sure of the following:
1.
2. ?
3.
4.
Once you have completed each of these steps, then determine whether one of the exceptions under FRE 804(b) apply:

Answer 32

2. Non-hearsay does not apply FRE 801(d)

Question 33

FRE 804(b) sets out five different instances when hearsay will NOT be excluded by the Hearsay Rule 802. As you now know, these exceptions are not available unless the declarant is unavailable as defined above in FRE 804(a).

Before looking at the exceptions under FRE 804, make sure of the following:
1.
2.
3. ?
4.
Once you have completed each of these steps, then determine whether one of the exceptions under FRE 804(b) apply:

Answer 33

3. Hearsay exceptions under FRE 803 do not apply; and

Question 34

FRE 804(b) sets out five different instances when hearsay will NOT be excluded by the Hearsay Rule 802. As you now know, these exceptions are not available unless the declarant is unavailable as defined above in FRE 804(a).

Before looking at the exceptions under FRE 804, make sure of the following:
1.
2.
3.
4. ?
Once you have completed each of these steps, then determine whether one of the exceptions under FRE 804(b) apply:

Answer 34

4. the declarant is “unavailable” under FRE 804(a)

Question 35

Exceptions under FRE 804(b)
(1) ?
(2)
(3)
(4)

Answer 35

(1) Former Testimony

Question 36

Exceptions under FRE 804(b)
(1)
(2) ?
(3)
(4)

Answer 36

(2) Statement Under Belief of Imminent Death

Question 37

Exceptions under FRE 804(b)
(1)
(2)
(3) ?
(4)

Answer 37

(3) Statement Against Interest.

Question 38

Exceptions under FRE 804(b)
(1)
(2)
(3)
(4) ?

Answer 38

(4) Statement of Personal or Family History

Question 39

FRE 804(b)(1). Former Testimony.
This exception has strict requirements. The statement must be:
(1) ?
(2)

Answer 39

(1) Testimony that was given by a witness at a trial or hearing or deposition; and

Question 40

FRE 804(b)(1). Former Testimony.
This exception has strict requirements. The statement must be:
(1)
(2) ?

Answer 40

(2) Offered against a party who had an opportunity and similar motive to develop the testimony.

Question 41

The former statement could have been made in either the current case or another case. The challenging part of this exception is determining whether the party against whom it is offered had “an ________ and similar ______ to develop” the testimony. Although many of the types of evidence that fall under the exception are easy, some can be quite difficult. FRE 804(b)(1).

Answer 41

opportunity

motive

Question 42

For example, you represent the Plaintiff, and you take the deposition of Jane Doe as part of the case. At trial, Jane Doe is “unavailable” by definition. Now, you want to offer parts of her deposition at trial. In this example, the deposition was testimony that was given as a witness at a lawful deposition during the current proceeding and now is offered against the defendant.

Assuming the defendant, or her lawyer, was present at the deposition, then the defendant would have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Why? because she was present at the deposition, and since the deposition was in the same case, she had the opportunity and motive to develop the testimony.

On the other hand, one could imagine that the defendant wanted to save the “juicy” questions for trial and not ask them at a deposition. In this case, the defendant would have the motive to develop the testimony but chose not to do so.

What FRE does this refer to?

Answer 42

FRE 804(b)(1).

Question 43

FRE 804(b)(2)

Answer 43

Statement Under Belief of Imminent Death

Question 44

Statement Under Belief of Imminent Death.

What FRE?

Answer 44

FRE 804(b)(2)

Question 45

This exception is informally known as the “dying declaration.” It is a narrow exception.

Answer 45

FRE 804(b)(2). Statement Under Belief of Imminent Death

Question 46

FRE 804(b)(2). This exception is informally known as the ______ ________. It is a narrow exception.

Answer 46

dying declaration

Question 47

FRE 804(b)(2). Statement Under Belief of Imminent Death.
The only criminal case to which this exception applies is _________. So, a case of attempted homicide or assault won’t cut it. (By the way, murder is homicide).

Answer 47

homicide.

Question 48

FRE 804(b)(2). Statement Under Belief of Imminent Death.
The exception applies in all _______ cases.

Answer 48

civil

Question 49

FRE 804(b)(2). Statement Under Belief of Imminent Death. This exception has 2 requirements:
1. ?
2.

Answer 49

1. It must be a statement made while the declarant believed that his or her death was imminent; and

Question 50

FRE 804(b)(2). Statement Under Belief of Imminent Death. This exception has 2 requirements:
1.
2. ?

Answer 50

2. The statement must be about the cause or circumstances.

Question 51

FRE 804(b)(2): First, it is important to recognize that the exception does not require the declarant to actually be _____. Yes, she must be _________ and certainly if she is ____ then she is unavailable. But ______ is NOT a requirement.

Answer 51

dead

unavailable

dead

death

Question 52

FRE 804(b)(2): Second, the statement must be about the cause or circumstances of what the declarant believes is her end! Consider a police officer who was shot and says, “Sammy shot me.” If he believed that his death was imminent and he was unavailable for trial, then the statement would fit squarely within the hearsay exception (if it was a civil trial or a prosecution for homicide.) !!

Answer 52

!!

Question 53

FRE 804(b)(3)

Answer 53

Statement Against Interest

Question 54

Statement Against Interest

What FRE?

Answer 54

804(b)(3)

Question 55

This exception is frequently confused with FRE 801(d)(2) (An Opposing Party’s Statement.” While the fundamental requirement of FRE 801(d)(2) is that the person making the statement be a party to the case, FRE 804(b)(3) has NO such requirement.
And, frankly, if the statement sought to be admitted fits FRE 801(d) you would not need to consider FRE 804 exceptions.

Unfortunately, if you get to FRE _____ in your analysis, you are reaching the bottom of the exception barrel.

Answer 55

804

Question 56

FRE 804(b)(3). Statement Against Interest.

The statement applies in all civil and criminal cases and must be one that:
(1) ?
(2)
(a)
(b)
(c)

If offered in a criminal case: In addition to the above requirements, if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability, then it must:
(3)

Answer 56

(1) A reasonable person in the declarant’s position (situation) would only have made the statement if he or she thought it was true; and

Question 57

FRE 804(b)(3). Statement Against Interest.

The statement applies in all civil and criminal cases and must be one that:
(1)
(2)
(a) ?
(b)
(c)

If offered in a criminal case: In addition to the above requirements, if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability, then it must:
(3)

Answer 57

(2)(a): When the statement was made, it was so contrary to the declarant’s proprietary or pecuniary interest; or

Question 58

FRE 804(b)(3). Statement Against Interest.

The statement applies in all civil and criminal cases and must be one that:
(1)
(2)
(a)
(b) ?
(c)

If offered in a criminal case: In addition to the above requirements, if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability, then it must:
(3)

Answer 58

(b) When the statement was made, it had so great a tendency to invalidate the declarant’s claim against someone else; or

Question 59

FRE 804(b)(3). Statement Against Interest.

The statement applies in all civil and criminal cases and must be one that:
(1)
(2)
(a)
(b)
(c) ?

If offered in a criminal case: In addition to the above requirements, if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability, then it must:
(3)

Answer 59

(c) When the statement was made, it exposed the declarant to civil or criminal liability; and

Question 60

FRE 804(b)(3). Statement Against Interest.

The statement applies in all civil and criminal cases and must be one that:
(1)
(2)
(a)
(b)
(c)

If offered in a criminal case: In addition to the above requirements, if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability, then it must:
(3) ?

Answer 60

(3) Be supported by corroborating evidence that clearly indicates its trustworthiness.

Question 61

This exception is intended to be used with a statement that is so “_____”, no one would have actually said it unless it were true.

Answer 61

bad

Question 62

FRE 804(b)(3): Statements that are not _______ _________, even when made with statements that are self-inculpatory, are not admissible under this exception. Courts “may not just assume.. that a statement is self-inculpatory because it is part of a fuller confession.”

Answer 62

self-inculpatory

Question 63

FRE 804(b)(3): “A clear degree of ________ is required… that clearly indicates that the statements are worthy of belief, based upon the circumstances in which the statements were made.”

Answer 63

corroboration

Question 64

FRE 804(b)(3): This exception is based on the common-sense notion that reasonable people, even reasonable people who are not especially honest, tend not to make ______ _______ statements unless they believe them to be true.

Answer 64

self-inculpatory