CC + Privileges Flashcards
The confrontation clause only ___
applies in crim cases
Requirements for CC problem
- crim case
- pros seeking to introduce evidence from non-testifying declarant for truth under hearsay exception
- that hearsay evidence testimonial or functional equivalent
Most typical CC cases
DV or lab report evidence
FRE 106 says that if a party introduces all or part of a statement, an adverse party may ___
require intro, at that time, of any other part that ought in fairness to be considered at the same time through a hearsay objection
Frantic DV victim calls 911 says “bf is jumping on me again”. Victim refused to testify. Is it testimonial?
No, primary purpose ongoing emergency
Police respond after fact to DV call; take oral/written affidavit from victim
Testimonial, interrogation after the fact
A statement is testimonial when circumstances objectively indicates _____
no ongoing emergency
primary purpose of interrogation is prove past events potentially relevant to later criminal prosecution
State lab techs sworn statement declaring substance as cocaine
Testimonial – primary purpose prosecution
Bryant shot Covington who bled out in gas station nearby where police found him and questioned as to who shot him, once IDed went to arrest Bryant. Covington died.
Not testimonial, here ongoing emergency but also may be other circumstances when statement nontestimonial
How could Bryant case have avoided 6A problem?
dying declaration 804(b)(2)
Julie gives letter to neighbor saying if she dies, neighbor should give letter to police. Suspects husband will poison her.
1) If anything happens to me go to police
Not hearsay, show effect on listener
Julie gives letter to neighbor saying if she dies, neighbor should give letter to police. Suspects husband will poison her.
2) I cheated and he hasn’t forgiven me. I’ve seen him researching poison
Hearsay no exception
Julie gives letter to neighbor saying if she dies, neighbor should give letter to police. Suspects husband will poison her.
3) I’m afraid of him, I fear for my life
Hearsay 803(3) then existing feeling
DWI case with lab tech who testifies as to accuracy of lab report prepared by another non-testifying tech
Testimonial
Rape case with DNA evidence match from rape kit post-rape. DNA “expert” to testify about DNA matches
702, not coming in for truth but expert opinion
OR
lab reports done in emergency rape kit way before prosecution
Nosy reporting neighbor to police for counting a lot of money – money laundering indictment
Indamit, no hearsay exception
Maybe effect on police (caused them to investigate but probably 403 issue)
Also testimonial
Receipt from hotel where S was with escorts
Admit, 803(6) business record
Not testimonial and not created with primary purpose of prosecution
Lab report, requested by pros, which found Spitzer’s DAN on Kristen’s semen-stained dress. No lab analyst testifies.
Inadmit, business record but testimonial because ordered by pros
Meth cook IDed Big Mama as drug kingpin. Cook crossed at prelim hearing, later unavailable. Prelim hearing testimony admit?
Admit, 801(d)(1)(A) former testimony and Maddox opp to confront
Old lady mugged, ID ed D in lineup, 6 months later at trial can’t remember
Admit, 801(d)(1)(C), no testimonial problem because she is testifying
3.5 yo boy shows up to daycare with bruise, questioned on source. IDs his mom’s gf. Calls child abuse hotline as mandatory reporter. Boy too little to go to court, can teacher testify?
Hearsay exception for children in Ohio, otherwise 403 issue with effect on listener theory
Non-testimonial, to intervene not primarily pros (ongoing emergency, lack of formality, no interrogation)
Burton holds that admission of ____ violates another person’s right of cross secured by CC
one person’s confession in joint trial (substantial risk to jury even if tell to ignore)
Courts often get away with Burton problem by ____
just admitting confessions with redactions for co-D names
Chambers v. Miss facts
Chambers shot during shootout where allegedly kills police officer, McDonald later confesses to it, then retracts
