Evidence Outline - Professor Tilly - Campbell Law - Part 11

Crawford v. United States, overruled Ohio v. Roberts (standard was either firmly rooted hearsay exception or particular guarantees of trustworthiness), test goes from “substantive” (reliability) approach to procedural.

• Prosecutor was bringing in wife’s statement from police station after D killed a guy
  • She claimed marital privilege → still considered unavailable
• Testimonial statements are “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use in a later trial.”
  • At a minimum: 1) prior testimony at preliminary hearing; 2) grand jury testimony; 3) answers to police interrogations

Davis, “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”

• Thus, 911 call of wife in the process of being attacked was not testimonial
• But- Hammon: affidavit signed once cops responded to domestic violence situation that had calmed down? → that’s testimonial

Ohio v. Clark, young child’s statement to teachers about dad abusing him, teachers were asking and under mandatory duty to report → not testimonial

Bryant, man bleeding out in parking lot asked abunch of questions by 5 cops before he dies → non-testimonial on-going emergency

• Probs bullshit, shows how Crawford is getting widdled away
• Develops factor test (below), pretty much goes back to reliability
• Holding: Objective standard for the “primary purpose of the interrogation” based on the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and circumstances in which the encounter occurred. Because the circumstances of the encounter as well as statements and actions of Covington and the police objectively indicate that the “primary purpose of the interrogation” was to “enable police assistance to meet an ongoing emergency,” Covington’s ID and description of the shooter were not testimonial hearsay barred by the Confrontation Clause.

Bryant Factors important to determine if primary purpose is testimonial or other (I.E. – ongoing emergency)

• Medical Condition of Declarant.
• Nature of Emergency.
  • ongoing?
• Formal v. Informal Interrogation.
• Statements & Actions of Interrogators and Declarant
  • Asking what happened to learn? (testimonial) or to respond to emergency (non-testimonial)
• Exigent circumstances:
  • Whereabouts of perpetrator known?
  • Gun involved?
  • Purely private dispute?
  • Threat over?

Statements can start off as non-testimonial and turn testimonial!!!!!!!!

• Honestly, these factors are dumb. Just use common sense with all of this shit and you’ll probs be aight

• Reports/certificates that are …functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination
  • The absence of interrogation is irrelevant.
  • A witness who volunteers his testimony still a witness.
  • There is no support for the proposition that witnesses who testify regarding facts other than those observed at a crime scene are exempt from confrontation.
• Melendez-Diaz —Analyst report certifying test at state lab deemed substance to be cocaine = testimonial, analyst must testify at trial
  • Lab test literally said at the top that purpose of the test was for evidence at trial
• Bullcoming — Analyst, other than the one who ran the test, testifying to state lab test determining blood alcohol level = Testimonial , analyst who did the actual test must testify, this analyst just knew how the test was done (not the declarant)

1. Coconspirator statements 801(d)(2)(E)
   1. Think- purpose of these statements is to further the conspiracy, not for future use at trial
      1. If you’re snitching on the boys in the conspiracy? → it isn’t a conspiracy statement in the first place
2. Medical diagnosis/treatment 803(4)
   1. Primary purpose typically just for medical treatment
3. Business records 803(6)*
   1. * Unless “the regular business activity is the production of evidence for use at trial” – Melendez-Diaz
   2. (or the document is prepared in anticipation of litigation)
4. Statements against interest 804(3)
   1. Made for purpose of incrimination, not future use
      1. Especially when talking to people other than cops
5. Statements of party opponent 801(d)(2)(A)
   1. You can always confront yourself → can’t keep out your own statement