Evidence

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FRE 602

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A witness can impart his or her punch line knowledge to the trier of fact only if there is some reason to think that the witness has personal knowledge - first-hand knowledge - of the punch line matters that the witness is to tell the jury about. Evidence of personal knowledge may include witnesses own testimony. Elements of Personal Knowledge:
a. Witness was in physical position to perceive the event (by sense of sight or other senses)
b. Witness actually perceived the event.

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4) Trial Motions

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a. Rule 103 (Disputing & Defending Evidence)
i. Objection. (Objection/Motion to Strike; Timely; and State Specific Grounds; Accurate)(103(a)(1)(B)).
ii. Offer of Evidence. (Specific; Relevance; Legal Authority for Admissibility; timeliness(must be made before trial judge rules))
iii. Defending Evidence. (Submitter of Evidence Must "Offer Proof" upon objection; timeliness(must be made before trial judge rules)) "you forfeited your claim error." Difference b/t OoE & OoP is due to adversary system, but rational is similar.
iv. Maintaining Objections. (Objection Preserved for Appeal) Upon "Definitive Ruling").
v. Hearing of jury. (If Objection Requires Further Proof, Employ Sidebar).
b. Point of objection is due to the judicial system being an adversary system.
c. Responses by Judge (Sustain, Redact, Curative/Disregard, Limiting Admissibility - Rule 105, Overrule)

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5) On Appeal

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a. Deference to Trial Judge unless abuse of discretion,
b. Rule 103 - Reversal only if evidentiary ruling affected "substantial right" - verdict would have been decided differently(lower court ruling would have been prejudicial), or
c. Reversal on grounds of "Plain Error" ("clear & obvious" error; affect substantial rights; affect integrity of court). This really only applies in criminal cases(for criminal defendants), not civil cases. Trial judge doesn't have a right to prevent an "offer of proof"; you would have an automatic right to a new trial.

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6) Relevance

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a. Rule 401 (Logical Relevant Evidence)
1) "Any Tendency" to Make a Fact "More Probable or Less Probable", and
2) Must be a Fact "Of Consequence" (appreciable probative value)
b. Rule 402 (Wigmore's axioms)
1) Relevant evidence is admissible, except as otherwise provided.
2) Irrelevant evidence is inadmissible. ("argument of counsel" is not evidence, but can be used in closing argument).
c. Controversy & Consequence (Evidence relevant even if conceded)
d. Unrelated Misdeeds (Inadmissible).
e. Negative Evidence (Inadmissible).
f. Hindsight (Liability rests on subjective rather than objective belief).
g. Opening the Door (Fighting Fire w/Fire Doctrine)
h. Case-by-Case Determination (Per se rules of evidence are rare).
i. Character Evidence or Propensity Rule (Rule 404)

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m. FRE 104

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a) Admissibility generally. TJ decides preliminary questions of evidence using preponderance of ev.
b) Conditional Relevance. "Relevant" if "evidence sufficient to support a finding" of condition. TJ's decision based on "whether enough evidence exists that a reasonable jury could resolve…" The court may admit the proposed evidence on the condition that the proof be introduced later.
c) Hearing of jury. Hearings on admissibility to be held outside the hearing of the jury.
d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

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7) Prejudice & Similar Matters

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○ FRE 403 (Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time)
§ Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Five Factors affecting 403 Rulings:
1) Extent of arousing juror emotions.
2) Extent that jury might overvalue certain evidence.
3) Strength of connection b/t evidence & elements of the case.
4) Whether facts can be proven through less prejudicial means.
5) Possibility of reducing prejudice once evidence is introduced.
§ Solution: Judge asks Counsel to Provide Another Means of Evidence, Less Prejudicial.
§ Stipulations: Can affect unfair prejudice & probative value. Eliminates the relevance of evidence in unlawful gun possession by convicted felon, but not for everything else(Old Chief - speaks for criminal cases). Prosecution has the right to present the case as she chooses, in order to:
1) Tell a colorful story
2) Evidence can address any number of relevant issues
3) Help the jury reach a guilty verdict w/dramatic evidence (convince them it is a morally reasonable conclusion)
4) Show the human significance of the facts (Remind jurors what's at stake)
5) Not lead jurors astray with mysterious excluded evidence
6) Meet jurors expectation to hear a linear story

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○ Authentication (FRE 901)

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○ Civil Trials: Disclosure of Evidence Must Be At Least 30 Days Before Trial.
○ Criminal Trials: Can Introduce Evidence at Trial.
○ Purposes Served: (1) Establish Relevance, (2) Genuine, (3) Proper Context.
a) "Condition Precedent" Satisfied By Evidence Sufficient to "Support a Finding," that it "Is What its Proponent Claims"
b) Illustrations. 10 Ways Using Extrinsic Evidence to Authenticate (i.e. corroborating testimony).
i. Testimony of witness with knowledge. Testimony that a matter is what it is claimed.
1) Chain of Custody. Used when evidence lacks distinctive features.
ii. Nonexpert Opinion About Handwriting. Not acquired for purposes of litigation. Cannot use specimen from D acquired at trial.
iii. Comparison by trier or expert witness. Using comparable specimens already verified.
iv. Distinctive characteristics and the like.
v. Voice identification.
vi. Telephone conversations.
vii. Photographs & Videos. Witness must say such are "fair & accurate" representation of the scene.
viii. Public records or reports.
ix. Ancient documents or data compilation.
x. Process or system.
xi. Methods provided by statute or rule.

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○ FRE 902: Self-Authentication (Extrinsic Evidence Not Required).

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i. Domestic public documents under seal.
ii. Domestic public documents not under seal.
iii. Foreign public documents
iv. Certified copies of public records
v. Official publications. Books, pamphlets, or other publications purporting to be issued by public authority
vi. Newspapers and periodicals
vii. Trade inscriptions and the like
viii. Acknowledged documents
ix. Commercial paper and related documents
x. Presumptions under Acts of Congress
xi. Certified domestic records of regularly conducted activity
xii. Certified foreign records of regularly conducted activity

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Best Evidence Rule (Original Writing Rule)

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○ Why: (1) Content of a writing, recording, or photograph is more detailed and difficult to describe; (2) they are easy to produce; (3) reduces opportunities for fraud and distortion.
i. FRE 1001 - Definitions - (1) Writings and recordings; (2) Photographs; (3) Original(or counterpart intending to have same effect); (4) Duplicate. A "duplicate"accurately reproduces the original.
ii. FRE 1002 - Requirement of Original to prove its content of a writing, recording, or photograph. Applies only if trying to or being compelled to use writing, recording, or photograph.

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FRE 1003

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Admissibility of Duplicates - Admissible unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

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FRE 1004

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Admissibility of Other Evidence of Contents - Original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-- (1) Originals lost or destroyed. Unless lost or destroyed in bad faith; or (2) Original not obtainable by any available judicial process or procedure; or (3) Original in possession of opponent; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

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FRE 1005

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Public Records - May be proved by (1) certified copy, (2) testified to be correct by a witness who has compared it with the original, or (3) other evidence, when first two methods cannot be complied with.

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FRE 1006

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Summaries - The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available.

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FRE 1007

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Testimony or Written Admission of Party - Contents of writings, recordings, or photographs may be proved by the testimony or written statement of opposing party without producing originals.

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FRE 1008

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Functions of Court and Jury - The question of whether admissibility of best evidence has been fulfilled is for the court, except when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another Best Evidence produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine.

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FRE 602

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Lack of Personal Knowledge - A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
1) Rock v. Arkansas – This case involved a woman who killed her husband and was charged with manslaughter. She couldn’t recall the details of the encounter until she was hypnotized and remembered that she had not had her finger on the trigger when the gun went off. The trial judge limited her testimony to those things she remembered before the hypnosis and she was convicted. SCOTUS reversed, holding that the defendant’s constitutional right to testify in her own defense was violated by the trial judge’s ruling. Three distinct constitutional theories:
1. 14th Amendment Due Process
2. 6th Amendment Compulsory Process (traditionally for compelling others to testify, but here applied to allowing defendant to testify)
3. 5th Amendment Privilege Against Self-Incrimination (seems to be the opposite of this case, but it has been interpreted provide a right to obtain and present evidence helpful to her defense)
2) United States v. Scheffer – This holding limits Rock, and defines it as based on the 5th Amendment only and not the other two clauses. This case involved a military rule that excluded polygraph testimony. Contrary to what Rock suggests about the 5th Amendment right to present evidence helpful to a defense, SCOTUS held that rules excluding certain types of evidence from criminal trials does not violate this right so long as the rules are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Even a somewhat arbitrary state rule of evidentiary exclusion will violate the 5th Amendment only if it infringes on a weighty interest of the accused. The court shows a preference for direct testimony about what happened over scientific or other circumstantial evidence (as the polygraph in this case.)

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FRE 607

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Who May Impeach - The credibility of a witness may be attacked by any party, including the party calling the witness

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FRE 611

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Mode and Order of Interrogation and Presentation: (a) Control by court - The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment; (b) Scope of cross-examination - Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility(impeaching) of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination; (c) Leading questions - Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony.

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1) Permissible Leading on Direct:

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a) To Establish Pedigree Information(Education Bckgrnd & Occupation)
b) To Direct a Witness's Attention to a Relevant Place and Time.
c) To Help a Witness Who is Hesitant, Confused, or Has Trouble Recalling(i.e. children)
d) Hostile Witness. "When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."
e) (To avoid asking a leading question used: why, what, where, when, how).

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Leading on Cross

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a) Leading ordinarily allowed but may ask q's only within scope of direct.
b) Cannot use leading on friendly witnesses.

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3) Objection ex's(not listed in FRE):

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a) Argumentative(drawing inferences or making conclusions or harassing)
b) Asked & Answered.
c) Assumes a Fact Not in Evidence.
d) Beyond the Scope.
e) Calls for Narrative(Q is too broad; witness will tell a story instead of answering a specific question).
f) Calls for Speculation(asks witness what other people may have been thinking)
g) Compound Question.
h) Harassing/Badgering the Witness(Asking same Q repeatedly in diff. ways; insulting the witness, or arguing w/witness)
i) Improper Characterization of Testimony/Misstates the Testimony.
j) Leading Question.
k) Non-Responsive Answer.
l) Vague(Q does not give enough detail)
m) Trick Question

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4) Rule 613. Witness’s Prior Statement

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(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

FOR IMPEACHMENT PURPOSES ONLY. CANNOT BE USED TO PROVE THE TRUTH OF THE MATTER ASSERTED AS THAT WOULD VIOLATE HEARSAY.

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FRE 404

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Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

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FRE 608

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A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

PARTIES MUST ACCEPT THE WITNESS'S RESPONSE ON CROSS; THEY MAY NOT INTRODUCE EXTRINSIC EVIDENCE TO PROVE THAT THE WITNESS COMMITTED PARTICULAR ACTS SHOWING UNTRUTHFULNESS.

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United States v. Abel

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This case involves 6th Amendment right of confrontation, but is based on the FRE. A witness is giving favorable testimony regarding the defendant, and the prosecutor knows that they are both members of a prison gang. All courts allow impeachment for bias. The examiner may cross-examine the witness to show bias without laying any foundation, but may not use extrinsic evidence unless the witness denies the bias. Used motive to attack the credibility of the witness.

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FRE 609

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Impeachment by Evidence of Conviction of Crime.
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value(i.e. a crime that relates to truth telling; convictions occurring recently; he said she said cases) of the evidence outweighs its prejudicial(i.e. level of similarity; chance that D might not testify) effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement(i.e. perjury, fraud, embezzlement).
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

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Rule 610

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Religious Beliefs or Opinions.
○ Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.(However, it may admitted to support/attack bias, damages, or motive).

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Circumstantial Character Evidence

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Michelson v. US: : The Court of Appeals applied a rule that the prior arrests were inappropriate on cross examination because of the dissimilarity of the offenses. However, SCOTUS ruled that the cross examination scope was in the discretion of the trial court and that this was not an abuse of discretion. Allows for questions in the form of "Have you heard…"

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FRE 405

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Methods of Proving Character -
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.(On Cross, opposing counsel may ask about specific acts related to the character traits discussed on direct. The cross-examiner must have a good faith belief that the act ocurred, BUT NEITHER PARTY MAY OFFER EXTRINSIC EVIDENCE RELATED TO THOSE ACTS.) This evidence is restricted to only in assessing the character witness's knowledge and credibility, not in determining the underlying issue of guilt or innocense.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
® i.e. when marital law provides that a person's right to adopt a child depends on a person's fitness, that makes character an issue

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When is Character an Element?

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In cases of:
1) Defamation,
2) Child Custody,
3) Entrapment(When D claims Entrapment), and
4) Negligent Entrustment Claims.

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Character Evidence & Bad Acts:

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Testimonial Impeachment and "Circumstantial" Character Evidence
○ People v. Zackowitz – This New York case involves a man who shoots a kid who he believes insulted his wife. The issue is what degree of murder he is guilty of, considering his state of mind at the time of the crime. Evidence was introduced about the various weapons defendant owned, in order to make him out to be a murderous individual. Evidence of Defendant’s possession of weapons that were not used in or related to the crime committed are inadmissible, as the introduction of such evidence is likely to have a prejudicial effect on the jury.

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5) Doctrine of Chances

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○ Where two or more similar events have occurred and it is improbable that such multiple events occurred by chance, by accident – i.e., without the criminal act or wrongdoing of the alleged malefactor – such a conjunction of events is admissible to show the commission of a crime such as homicide.
○ Tucker v. State – This Nevada case involves two murders very similar to one another (both shootings, both in the defendant’s home, both involved calls by the defendant to the police station and similar explanations by the defendant). Evidence of the first murder was admitted in the trial of defendant for the second murder, even though he was never tried or convicted for the first. The court ruled that “before evidence of a collateral offense is admissible for any purpose, the prosecution must first establish by plain, clear and convincing evidence, that the defendant committed that offense.” The evidence was considered improperly admitted. This logic has been overruled and is dead. Evidence taken separately may appear inadmissible but take together may appear probative.

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6) Strength of Proof of Other Crime or Bad Act

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○ Huddleston v. United States – This case involved the sale of stolen Memorex tapes. Evidence was offered to show that the defendant had dealt in stolen TVs and refrigerators before. SCOTUS granted cert to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before "similar act" and other Rule 404(b) evidence is submitted to the jury.
The Court held that under the Federal Rules of Evidence a much lower quantum or degree of proof is required for the admission of other crime evidence: the sufficient-to-support-a-finding standard of Rule 104(b) is all that is necessary. However, some states have not come to the same conclusion.
○ The holding in Huddleston dealt with how the judicial system should deal with less than conclusive evidence(i.e. identity). For introduction of evidence to show identity – there has to be substantial similarity. Relevance is not enough for admitting evidence of prior crimes to show identity, there has to be substantial similarity.

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FRE 406

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Habit; Routine Practice - Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
1) Habit: specific, repeated responses to a particular situation or stimulus.
ii. United States v. Levin – This case involved evidence that a man would have been home by sundown on Fridays because it was his habit. The court ruled that religious activity repeated is not a habit. The argument is that since religious activity is purposeful that it wasn’t automatic, and so it was not habit under Rule 406. Tillers thinks this is ridiculous – the evidence is more probative based on the religious element. This case is cited in the ACN - In Levin v. United States, testimony as to the religious "habits" of the accused, offered as tending to prove that he was at home observing the Sabbath rather than out obtaining money through larceny by trick, was held properly excluded; "It seems apparent to us that an individual's religious practices would not be the type of activities which would lend themselves to the characterization of 'invariable regularity.' [1 Wigmore 520.] Certainly the very volitional basis of the activity raises serious questions as to its invariable nature, and hence its probative value." Id. at 272.
iii. State v. Radziwil – This case involved an automobile accident in the early morning which kills two people. The issue is not whether Radziwil was the driver who caused the accident, but whether he was drunk, because he fled the scene of the accident and there is no hard proof of his intoxication. In order to show that his state of mind was “extreme indifference to human life” under New Jersey law, he would need to have been intoxicated. The bartender from his regular bar testified that the defendant got drunk just about every weekend night at the bar, but could not remember that particular night. The issue is whether this evidence is admissible, and if so, whether it is sufficient to prove that the defendant was in fact intoxicated. The NJ Sup Ct said that the testimony was admissible, and that the testimony was enough to allow the jury to conclude BARD that the D was intoxicated. But, note that Tillers’ inquiry into the background of the case shows that everyone (including his own counsel) thought Radziwil was guilty because he was a drunk. Tillers finds this case fascinating.

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Rule 412. Sex-Offense Cases

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The Victim’s Sexual Behavior or Predisposition(Rape Shield Law)
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

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Rule 413

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Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

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Rule 414

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Similar Crimes in Child Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

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Rule 415

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Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.

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Factors That Courts Consider When Apply Rule 403 to Evidence Admitted Under 413-415:

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1) Length of time that has passed since the other acts
2) Reliability of the witness testifying about the other acts
3) Similarity of the other acts to those charged
4) Whether the government could make similar points with less prejudicial evidence

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Rule 801.

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Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement(based on personal knowledge).
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

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801(d)(1) Statements That Are Not Hearsay.

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A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.

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801(d)(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

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(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

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Rule 804.

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Hearsay Exceptions; Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. 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.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
(5) [Other Exceptions .] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

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Rule 803

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Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. 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.
• Parties may use a declarant's state of mind as circumstantial evidence of the declarant's and another person's prior or subsequent actions. (Hillmon).
(4) Statement Made for Medical Diagnosis or Treatment. 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.
(5) Recorded Recollection. 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.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
(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) neither the source of information nor other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. 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.
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
(24) [Other Exceptions .] [Transferred to Rule 807.]

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Rule 807.

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Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness as those of established exceptions;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
§ Black Letter Law: Admission is admissible even if declarant has no personal knowledge or admission rests on hearsay.

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Rule 805.

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Hearsay Within Hearsay:
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

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6th Amendment Constitutional Issues

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Confrontation Clause
1) Hearsay as Evidence of Criminal Guilt
a. Crawford v. Washington - This case involves a defendant who stabbed a man who had allegedly tried to rape his wife, Sylvia. Sylvia’s taped statement was admitted (which somewhat contradicted D’s self-defense argument) although she did not testify because D invoked his privilege against adverse spousal testimony (different from spousal immunity). The lower courts analyzed the 6th Amendment right to confrontation issue by applying the particularized indicia of trustworthiness branch of the Roberts test à The use of hearsay against a criminal defendant does not violate confrontation if: 1) the evidence falls within a firmly rooted hearsay exception or 2) it bears particularized guarantees of trustworthiness. SCOTUS(Scalia) applies a new Crawford test à Testimonial statements of witnesses absent from trial are admissible only where 1) the declarant is unavailable and 2) the defendant has a prior opportunity to cross-examine.
i. Possible Tests for Testimony:
1) Where statement made in an official proceeding or gov't interrogation
2) Did declarant reasonable believe that statements could be used in a criminal prosecution
3) Whether Objective declarant reasonably believes he's giving a formal statement that could be used in a criminal prosecution
4) Ex parte in-court testimony or functional equivalent(affidavits or custodial examinations)
5) Extra judicial statements (i.e. deposition, custodial examination, prior testimony, affidavits, confessions)

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Hammond v. State

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(Indiana case that SCOTUS just granted cert) - Spouse statement to police was let in as an excited utterance and were found not to violate the confrontation clause because, applying the Crawford test, excited utterances cannot be intended to be testimonial. The court points out the varied interpretations Crawford has brought about (who the statement is given to, audience’s purpose, totality of the circumstances, etc.)

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Olden v. Kentucky

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Facts: V claimed that she was raped by D. D argued that they had consensual sex and V was lying because she didn’t want to admit to this incident to her boyfriend, who testified for V. V during trial claimed that she lived with her mother, but in fact, she lived with her boyfriend. Defense wanted to show V’s motive for lying about this whole incident and present evidence that V (white) was living with her boyfriend (black). Trial court excluded this evidence and D was sentenced for 10 years for forcible sodomy. D claims that exclusion of this evidence violated his constitutional right to cross-examine his accuser.

Procedure: The appellate court upheld the conviction by ruling that even though the evidence was relevant and didn’t violate the rape shield statute, but the prejudicial effects of this evidence outweighed its benefits.

Issue: Was D denied of his constitutional rights?

Holding: Yes

Rationale: The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right to cross-examination. In this case, it is clear that a reasonable jury could have doubted the credibility of V if it had know about the relationship between V and her boyfriend which could very well have provided V with the motive to falsely accuse D of rape. While a trial court may impose reasonable limits on defense counsel’s inquiry into the potential bias of a prosecution witness, to take the witness’ safety, or interrogation that would be repetitive or only marginally relevant, speculation as to the effect of juror’s racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of V’s testimony.

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FRE 701

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Opinion Testimony by Lay Witnesses - If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

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Frye v. United States

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Court upheld a lower court’s refusal to admit the results of a lie detector test offered by the defendant in a murder case. The rule applied was that the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [This still applies in NY and some other states!]

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Daubert Reliability Prong

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“scientifically valid,” “derived by the scientific method,” “good science,” must “rest on a reliable foundation.” Factors (these are not exclusive and none is necessary to a finding of reliability):
a. Whether the theory or technique has been or can be reliably tested
b. Whether the theory or technique has been subjected to peer review and publication
c. The technique’s “known or potential rate of error.”
d. Whether the technique or test has become generally accepted (note – this was the only factor under Frye)
e. Whether the technique grows naturally out of work that the testifying expert was conducting independently of the litigation. (This factor was not articulated by SCOTUS in Daubert, but was relied on by the 9th Circuit on remand and is likely to apply.)
f. Whether there are standards controlling the technique’s operations, and whether those standards are well maintained (i.e. a professional organization.) [Tillers does not include these last two factors in his list!]

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Role of Judge and Jury Under Daubert

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1. Judge – makes an actual finding (not enough to conclude that a reasonable juror could find) of reliability of the methodology used. The judge cannot exclude an opinion or conclusion because he does not believe it. ACN – “The emphasis in the amendment on ''sufficient facts or data'' is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.”
2. Jury – determines whether the results of the test or technique are accurate.

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New (post-Daubert) FRE 702

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Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

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What about experts who have no specialized training, only experience?

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ACN – “If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply “taking the expert's word for it.””

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Kumho Tire Co., Ltd. v. Carmichael

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Minivan accident caused by a blown tire. Plaintiff’s expert proposed to testify that this was caused by a defect in the tire’s design or manufacture, despite the old age and bad condition of the tire itself. He based this on a theory of “overdeflection” and surmised that the tire would need to show two of four factors in order to overdeflect, and this tire did not show any of the factors, so it must have been defective. The trial court applied Daubert to reject the testimony. The Court of Appeals reversed, holding that this testimony relied on experience rather than science, and Daubert should not apply. SCOTUS reversed, holding that Daubert principles apply to all expert testimony, whether “scientific” or not. The use of each of the Daubert factors is in the discretion of the trial judge to apply in a particular circumstance. Also, trial judges should get flexibility in both the procedure and the outcome of the Daubert decision – subject only to abuse-of-discretion review.
1. Scalia’s concurrence: “Where, however, the Daubert factors are reasonable measures of the testimony's reliability, the Supreme Court has instructed that the trial judge should consider them. While district courts have considerable leeway in determining how to assess reliability, they do not have the discretion to simply abandon their gate-keeping function by foregoing a reliability analysis. Significantly, "in a particular case the failure to apply one or another of [the Daubert factors] may be unreasonable, and hence an abuse of discretion."

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Rule 703

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Bases of an Expert’s Opinion Testimony.
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

(EXPERT MAY RELY ON HEARSAY EVIDENCE)

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Rule 705

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Disclosing the Facts or Data Underlying an Expert’s Opinion
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

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Rule 704

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Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

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Expert Testimony on Eyewitness

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1) Expert may only describe general findings about eyewitnesses testimony; the expert may not offer an opinion about whether a particular eyewitness is reliable.
2) Most courts allow expert testimony about eyewitness reliability only when circumstances suggest that an eyewitness identification is less reliable.(i.e. when eyewitness id's were cross-racial, occurred a long time after the event, stemmed from an incident that caused the witness great stress, or happened after a suggestive photo-spread identification)

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Rule 504.

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Psychotherapist-Patient Privilege
[Not Enacted.]
(a) Definitions.
(1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.
(2) A "psychotherapist" is (A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (B) a person licensed or certified as a psychologist under the laws or any state or nation, while similarly engaged.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.
(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.
(c) Who may claim the privilege. the privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is presumed in the absence of evidence to the contrary.
(d) Exceptions.
(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.
(2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
(3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

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Jaffee v. Redmond

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[Psychotherapist Privilege] This case involved the admissibility of statements made by a police officer to a social worker after she shot and killed a man. The trial judge denied the right to a psychotherapist-patient privilege. When the social worker still refused to disclose the details of her sessions with the defendant, the judge told the jury that they could presume that the evidence would have been unfavorable to the defendant. The 7th Circuit reversed and remanded for a new trial, holding that “"reason and experience," the touchstones for acceptance of a privilege under Rule 501 of the Federal Rules of Evidence, compelled recognition of a psychotherapist-patient privilege.” They qualified the holding, saying that “it would not apply if "in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests."” SCOTUS granted cert because the courts of appeal were in discord on this issue, and upheld the ruling of the 7th Circuit. Scalia dissented, saying that getting to the truth should be the priority in the courts rather than these collateral concerns.

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Washington v. Texas

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[6th Amendment Confrontation] This was a murder case involving the killing of the new boyfriend of a girl by the friend of her old, jealous boyfriend. The friend, who had already been convicted, wished to testify for the defendant (the jealous boyfriend) but a Texas statute prevented coparticipants in the same crime from testifying for one another. SCOTUS ruled that excluding the testimony was error, saying that “the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”

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The Confrontation Clause does not apply to:

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1) Dying Declarations
2) When the D intentionally caused the declarant's unavailability to prevent him from testifying,
3) Party Admissions
4) Civil Cases, and
5) Nontestimonial Hearsay

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Admissions

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Admissions is admissible even if declarant has no personal knowledge or admission rests on hearsay. Possible exception to this is if declarant as part of a company was not acting within the scope of his duty(I think, look into this).

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6th Amendment Constraints

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1)Prosecutor may introduce non-testimonial hearsay as long as those statements comply with the hearsay rules.

2) The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available. Under those circumstances, the defendant has a chance to cross-examine the declarant about the testimonial statement and any other matters.

3. If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the defendant had a prior opportunity to cross-examine the declarant.