Relevancy is it relevant? 401



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7.22 –Grand jury testimony did not meet the exception because even though the witness was arguably unavailable under 804(a)(2), the party against whom the testimony was offered did not have “an opportunity & similar motive to develop the testimony by direct, cross, or redirect” since neither D nor D’s attorney was present during the grand jury testimony.

  • Predecessor in Interest - If it appears that a party in a former suit having a like motive to cross-examine about the same matters as the present party, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. *Privity or common property interest between parties is not necessary.
    Lloyd v. American Export Lines (1978) – Lloyd sued co bc they didn’t protect him from Alvarez. Alvarez counter-claims then Lloyd dropped claim. Co wants to use Lloyd’s transcript from the previous coast guard hearing. Although, congress didn’t furnish a definition, the 3rd circuit ruled there was a sufficient community of interest shared by the coast guard in its prior hearing and Alvarez in the subsequent civil trial. A similar nucleus of operative facts and the same basic interests was enough to make the first party a predecessor in interest to the second party. Dissent: “Predecessor in interest” is a term of art to be construed narrowly as one who is in privity. It does not matter that the Coast Guard had merely the same motive, he did not have the duty to represent Alvarez. His search was for the truth, not to win, and so he was not bound to explore all possible avenues.



          1. 804(b)(2) Dying Declarations

    1. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
      Shepard – to make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death

    1. **Davis: Stonewall Jackson before he died said let us cross the river and rest in the shade of the trees

    2. Clip - Audrey Hepburn discovers body of an acquaintance smothered to death. Near his outstretched hand, the word "DYLE" is scrawled. Mr. Dyle later is put on trial for killing the man.
      D: we don’t have any proof that we thought his death was imminent. P: he did have a plastic bag over his head

    3. Shakespeare, On Truth & Dying: Wigmore traced hearsay to the late 17th century. Shakespeare offered more than one reason to trust the words of the dying more than ordinary hearsay.
      Richard II, Art II, I, 1-8 John of Gaunt: “O, but they say the tongues of dying men Enforce attention like deep harmony. Where words are scare they are seldom spent in vain, For they breathe truth that breather their words in pain.”
      King Joh, Art V, iv. 10-61 Melun: “What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false, since it is true That I must die here and live hence by truth.”

    4. 7.28 – Mattox (1892) – doctor supplied solicited opinion that he did not think the man would make it. The man then said, fairly close in time to Mattox’s mom, “I know your son and he did not shoot me, I saw the parties who did.” Dying declarations are justified upon the ground of necessity, and the certain expectation of almost immediate death will remove all temptation to falsehood, and enforce as strict adherence to the truth as the obligation of an oath could impose. But the evidence must be received with the utmost caution, and if the circumstances do not satisfactorily disclose that the awful and solemn situation in which he is placed is realized by the dying man because of the hope of recovery, it ought to be rejected. In this case the lapse of time was but a few hours; the wounds were three in number and one of them of great severity; the patient was perfectly conscious, and asked the attending physician his opinion, and was told that the chances were all against him, and that the physician thought there was no "show for you [him] at all." He was then interrogated as to who did the shooting, and he replied that he did not know.

    5. Shepard (1933) Dr claimed his wife committed suicide. Wife said, “Dr. Shepard poisoned me” – she didn’t know for sure, so personal knowledge issue. A statement of conclusion does not mean exclusion, but no other evidence and high a risk of confusion would be too prejudicial/damaging. Afterthoughts: Justice Cardozo felt that homicide may not be imputed to a D on the basis of mere suspicious even though they are suspicions of the dying. Contrast mere suspicions with earlier case, “Sophie bit a child” – that was arguably no better informed than Mrs. Shepard’s conclusion, but the former was deemed admissible. The distinction is that the wolf example concerned statements of a party-opponent which is governed by the this-is-war rationale

    6. Liang, The Legal Mythology of Dying Declarations (1998) – The idea that dying declarations are reliable bc people who know they are about to die speak the truth is irrational. *For example, trauma victims are oxygen deprived and often speak nonsensically.



          1. 804(b)(3) Statements Against Interest

    1. statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true bc it was so contrary to declarant’s proprietary/pecuniary interest or had so great a tendency to invalidate declarant’s claim against someone else or expose declarant to civil/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.
      Rationale: When someone says something detrimental to a very important interest, it’s likely true because people rarely say something carelessly or falsely involving a subject that could be personally harmful
      *Note Rule 804(b)(3)(B) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances that "clearly indicate" the trustworthiness of the statement.

    1. Fatal Attraction Clip – Michael Douglas confesses to wife about his affair with a woman; the wife is now on trial for the woman’s murder. Statement? Prosecutor wants to offer Douglas to testify about his confession. Why? To show motive. Hearsay problem? Regardless of the truth, we are only concerned with the effect it had on the wife, Not hearsay because not offered to prove the truth

    2. BUT suppose husband is charged and prosecutor wants wife’s testimony of his confession. Same purpose - motive. Hearsay problem? The statement would have to be true because he said the words, he would only have a motive if in fact he did have an affair, So this is hearsay. Exception? Maybe a party admission

    3. BUT suppose husband is found dead and the mistress is charged with his murder. Prosecutor wants the wife to testify about confession. Same purpose – motive. Hearsay problem? It’s being offered to show truth of the matter asserted, so this is hearsay. Exception? Maybe Statement against Interest – reasonable person would have only said it if he believed it to be true bc it’s so contrary to the declarant’s proprietary (property interest) or pecuniary interest (if adultery were a crime; potential divorce/fault ground/loss of assets)

    4. Presumed Innocent ClipFord says, "You're right. I did it." Now someone else is charged and he wants the D.A. to testify to Ford's statement. D – Statement against interest: people don’t go around saying, “yeah I killed so-and-so.” P – He wasn’t serious; the two had an antagonistic relationship. *Judge might allow this in. Prosecution could insist that defense must show “corroborating circumstances” to establish statement’s trustworthiness – not prove the truth but tend to establish it bc a statement tending to expose declarant to criminal liability & offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

    5. Amendment proposed, but not adopted, to explain “corroborating circumstances” (803(24) and 804(b)(5) merged into 807)
      Hall, 165 F.3d 1095 (7th Cir. 1999) – (1) timing & circumstances under which the statement was made, (2) declarant’s motive to make it & if there was reason to lie, (3) whether declarant repeated it & did so under other circumstances (not an isolated occurrence); (4) party or parties to whom it was made; relationship bw declarant & opponent of the evidence, (5) nature & strength of independent evidence (when taken together w other evidence might help support the statement’s trustworthiness)
       “Several additional factors that may be considered in determining whether hearsay testimony has sufficient "guarantees of trustworthiness." Including: (1) declarant’s character for truthfulness & honesty & availability of evidence on issue; (2) whether testimony was given voluntarily, under oath, subject to cross, and a penalty for perjury; (3) extent to which the testimony reflects his personal knowledge; (4) whether witness ever recanted his testimony; & (5) whether statement was corroborated. FN. In 1997, the contents of Rule 803(24) and Rule 804(b)(5) were combined and transferred to the new Rule 807. With the exception of the additional requirement under Rule 804(b)(5) that the declarant be unavailable, the text of the two former rules was virtually identical.
       None of the statements indicate that [witness] had unique knowledge of the crime bc statements did not contain specific details unknown to the public. His statements were not corroborated by any physical evidence or eyewitness testimony. Additionally, [witness] recanted his statements and passed a polygraph exam in which he proclaimed his innocence. Finally, except for [witness] statement, the dates provided cannot be established with any degree of reliability. Thus, these factors clearly support the district court's conclusion that the proffered hearsay testimony lacked "trustworthiness.”

    6. Brother’s Keeper Clip - trooper relates a convo w Lyman, Delbert’s brother; Lyman told a convo w Delbert about killing Bill to put him out of misery and how he would do it. Statement against Interest bc surely it’s against his penal interest to implicate himself in a crime

    7. Williamson (1994) – Harris stopped in a car with LOTS of cocaine. He said he was delivering it to Williamson (other evidence linked Williamson to it). Harris refused to sign a statement or testify. Agent related Harris’ statements into the record. Statements against penal interests cannot be used to collaterally incriminate third parties under 804(b)(3), unless the statements were truly self-inculpatory and not self-serving. The principal behind 804 is that even dishonest people tend not to make self-inculpatory statements unless they believe them to be true. 804 cannot be read to mean that collateral statements–even ones that are not in any way against the declarant’s interest–are admissible. Q to ask is whether statement was sufficiently against declarant’s penal interest such that a reasonable person in his position would not have made it unless believing it to be true. Harris’ confession did little to subject himself to liability & reasonable person might think implicating someone else would decrease his exposure to criminal liability.
      Concurrence: Advisory Co suggests not all collateral statements are admissible, and contemplates the exclusion of collateral self-serving statements, but allows collateral neutral statements. A self-serving statement is one that tends to reduce or mitigate potential for punishment; neutrals are where two or more are capable of committing a crime and the declarant simply names the parties.

    8. 7.25 – someone reports a car leaving the scene & it is traced to D’s house; D blurts out the restaurant hired him to start the fire, but bc there was a family upstairs he only poured a little gas. *Note amendment was passed and approved and is now a part of the federal rules 804(b)(3) is now divided into 2 paragraphs – prosecution if offering a statement such as the one in this problem, would have to show corroborating circumstances as well. Judge seemed somewhat sensitive to Williamson problem, so he did not allow the entire statement to come in.

    9. 7.26 – Sister testified her brother, later murdered, came to her house asking for lemon juice to remove gun residue from his armed bank robbery. Statements in Williamson were made to police, does that make a difference? Williamson p. 472 language “arrest statements of a co-D have traditionally been viewed with special suspicion” so this does make a difference, but certainly brother’s statements were against his interest. Could argue the facts are distinguishable between this problem & Williamson since statements weren’t made to police



          1. 804(b)(6) Forfeiture by Wrongdoing

            1. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness
              -- Instead of saying waiver (implies conscious decision) use forfeiture
              -- Remember, these statements are only admissible in the extreme, only when the declarant is unavailable for one of the stated reasons in subsection b, forcing the choice to come down to an “all-or-nothing” decision


            1. Gray (2005) – court must find by a preponderance of the evidence that (1) D engaged or acquiesced in wrongdoing (doesn’t have to be a crime); (2) intended to render declarant unavailable as a witness; & (3) it did have that result. D objects bc she wasn’t intending to make him unavailable for this trial. Rule doesn’t talk about a particular trial, just general intent to make the witness unavailable at a trial. *Q is were you responsible for making this person unavailable for trial (any trial)

    1. Dhinsa (2nd Circuit) rule may apply where declarant was only a “potential witness”

    2. Cherry (10th Circuit) statements may be admitted against a person who participated in a conspiracy to silence declarant even if that person did not engage in witness intimidation/wrongdoing

    3. Steel v. Taylor (6th Circuit) any significant interference with declarant’s appearance as a witness, including the exercise of “persuasion and control” or an instruction to invoke the 5th amendment privilege, amounts to wrongdoing that forfeits the defendant’s right to confront the declarant



    1. 807 Residual Exception

    1. A statement not specifically covered by Rule 803/804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence available through reasonable efforts; & (C) FRE’s general purposes & interests of justice will best be served by admission. However, the proponent must make the statement known to the adverse party sufficiently in advance of the tria/ hearing to provide adverse party w a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. **(Stand-alone, residual; catchall exception).

        • Dallas County v. Commercial Union - residual exception case cited by rulebook; Court says we don’t characterize this as under any hearsay exception, it is admissible because it is necessary and trustworthy, relevant and material, and within the discretion of the trial judge.
          - Dispute b/w Dallas County and insurance company, concerning whether charred timber damage was caused by lightening strike or from an old fire. They try to admit as evidence a newspaper article that was written in 1901 about that fire. The court did not characterize it as a business record or ancient document, but rather as something necessary, trustworthy, relevant, and material. **Basically creates a residual exception here before it was codified

        • Clip - SIMULATED interview of a child who has been sexually abused. It is used in training clinical social workers. Defense: anatomically correct doll? Leading questions? If child was present to testify than maybe she should. Prosecution: It is offered to show a material fact that is probative since she is the only one who can testify to this – the interest of justice

        • United States v. Laster (2002) – interpreting “not specifically covered” – some disagreement in the courts; this court liberally construes the language: under 807, an equally trustworthy statement not covered by 803/804 is admissible if it is material, more probative than any other evidence, and its admission serves the interest of justice. (sometimes referred to the “near-miss” rule– it doesn’t quite make it under one of the exceptions, but looking at the big picture it should be admissible)
          - Ds charged with making meth. Gov tried to introduce records of Oil co for purchase orders of meth components. Detective had to intro co’s business records bc co’s sole owner/operator died. Other than a few brief convos w owner/operator he did not have much connection with the company. Use of these records under the business record exception was not admissible here because the detective was not a party to this business and knew nothing of the business, but the lower court did not err in admitting the documents under the residual hearsay exception of 807 as there was no indication that the records were not reliable. **Note: this case establishes Rule 807 as a stand-alone exception to the hearsay rule, subject to its own analysis. Prof: If the records are not reliable enough to come in under the business record exception, how are they then reliable enough for 807? (policy Q - if we don’t let this evidence in, the D would go free.)





    1. Unit 2: Reliability Chapter 8 Confrontation Clause



    2. The Confrontation Clause - guaranteed right for criminal D to confront opposing witnesses

      A Few Good Men Clip - Right before “you can’t handle the truth”; Nicholson gets off the stand. Cruise says, excuse me I’m not through with you yet. Sit down. *Illustrates that it’s not for the witness to decide when to stand up and leave, but rather the lawyer who is conducting the examination
      History: at the very least drafters intended to assure criminal D’s right to be present at his trial, learn what evidence is being introduced against him, and to question those who give live testimony



      1. Evolution of Confrontation Clause Case Law

        1. Mattox Era - Mattox (1895) – Supreme Court remanded; before trial 2, two witnesses died, so gov entered court reporter’s transcribed notes. Classic 804(b)(1) exception of former testimony, but at this time FREs didn’t exist yet. Admission was proper bc the purpose of right of confrontation is to put the witness in the courtroom, place him under oath with consequences of perjury, subject him to cross, & allow the jury to observe his demeanor. Court said D had all these abilities present during this initial testimony. **This is an old case but it is still good law.

          1. Pointer v. Texas (1965) – the Confrontation Clause applies to state trials as well as federal trials

          2. California v. Green (1970) – witness testifies at D’s preliminary hearing, identifying D as supplier, but at trial he changes his story. Gov. uses preliminary hearing transcript to contradict his present testimony. D had the opportunity to cross the witness at the preliminary hearing. Confrontation Clause demands are satisfied even if witness is unavailable at a later trial



        2. Roberts Era - Roberts (1980)no longer good law – held that if declarant was proved unavailable & there were indica of reliability than the statement could be admissible

          1. Craig – child testified through closed-circuit tv under oath, subject to cross, & observable by the jury; the only thing missing was face to face & eye to eye bw the accused and the accuser. O’Connor majority upholds the testimony, but notes that a later public policy individualized determination could change this.
            J. Scalia dissented – sheds light on his strict vision of the Confrontation Clause; a barrier bw D & witness is explicitly forbidden by the constitution & there’s no room for interpretation.



        3. Crawford Era - Crawford v. Washington (J. Scalia 2004) - Crawford stabbed a man he claimed tried to rape his wife. Wife claims marital privilege. Prosecution offered her police statement to show D’s violent nature to contradict D’s self-defense argument. He appealed conviction claiming his 6A right was violated. State Sp Ct relied on Roberts and upheld conviction. 6A directed at use of ex parte examinations as evidence against the accused (principle evil). Court overruled Roberts replacing reliability and trustworthiness with opportunity to cross. 6A gives Ds the right to confront witnesses and cross their testimony. This includes testimony police gather. **Crawford Limitations: (1) applies only to criminal cases and (2) doesn’t apply if witness testifies at trial or if statements are non-testimonial
          Major Rule: If the statement is testimonial it may not be admitted against the accused in the absence of the declarant’s presence and availability for cross at trial unless the declarant is “unavailable” to testify at trial AND the accused had a prior opportunity to cross the declarant about the statement

          1. Whorton v. Bockton (2007) made clear that Crawford is not only new, but flatly inconsistent w Roberts bc the Court’s overruling of Roberts was not initially clear, quite a few lower courts continued to apply it.



          2. **Note: in the modern realm of domestic-violence prosecutions, the justices seem prepared to infer from the history of abuse D’s purpose to keep his victim from the witness stand. Difficulties posed for domestic-violence prosecutions: J. Ginsburg in Davis recognized that many battered victims never show for trial. BUT J. Scalia responded sarcastically, “maybe we should just suspend the confrontation clause in spousal abuse cases.” In Hannan, Scalia said, “We may not vitiate const guarantees when they have the effect of allowing the guilty to go free.”



          3. EX: Simulated child abuse interview - Julie is ruled emotionally unavailable to testify. (1) Is tape Hearsay? Yes, offered to prove the truth of the matter asserted. (2) Does it raise a confrontation question? (a) Under Crawford, was it testimonial? This wasn’t a police officer questioning her, it was a social worker or counselor, and we’d have to know the interviews’ purpose and the investigation’s stage.
            Prosecutor: not testimonial, but even if it was this is an ongoing emergency bc she’s living with parents & the counselor is trying to help, not pursue an investigation. Defense: the questioning took part as part of the investigation process in looking to prosecution Judge Davis: could go either way here – depends on case circumstances.
            *Note:
            Davis & Hannan – even some police statements can be non-testimonial.



    1. Hearsay & Confrontation Clause Admissibility Chart
      Major Rule: If the statement is testimonial it may not be admitted against the accused in the absence of the declarant’s presence and availability for cross at trial unless the declarant is “unavailable” to testify at trial AND the accused had a prior opportunity to cross the declarant about the statement
      If evidence is of out of court words/conduct






    2. Hearsay under 801(c) not hearsay under 801(c)


    3. if no exception if exception



    4. Admissible under hearsay rule

    5. If against criminal D if against civil D/prosecution


    6. confrontation clause issue Raises no confrontation clause issue









    7. unless declarant appears for cross (Green)



    8. unless declarant is unavailable/d had past chance to cross (Green)

    9. unless statement is not testimonial (Whorton/Davis/Hannon)**



    10. unless d forfeited confrontation right by wrongoding (Giles)

    11. - Unavailability wrongfully procured by D, testimonial nature doesn’t matter

    12. bc D forfeited any 6A right



    13. unless statement = dying declaration (Crawford/Bullcoming)

    14. - Dying declarations don’t trigger 6A even if testimonial bc 6A applies only to

    15. out-of-court declarations in which original CL right would have applied


    16. or else confrontation clause violation



    17. Inadmissible subject to 403, possibly admissible


    18. Note: you never need to address the confrontation clause unless you face evidence that is hearsay under 801(c): Crawford tells us that the clause does not bar the use of testimonial statements of purposes other than establishing the truth of the matter asserted, thus out-of-court statements offered for a non-hearsay purpose evade 6A scrutiny



    1. **Determining Testimonial
      Testimonial Statements:


    1. Prior testimony at preliminary hearing/grand jury

    2. Testimony at a former trial

    3. Lab reports created by scientists/technicians working w law enforcement

    4. Statements during course of a “backward-looking” police interrogation



    5. Non-Testimonial statements

    1. 911 calls describing a pending emergency

    2. Excited utterances

    3. Statements by a crime victim to a physician/nurse, if made principally for the purpose of obtaining medical tretment or diagnosis

    1. If testimonial, is the statement subject to cross
      (a) At the time of the declaration? If meaningful, Green, then no 6A violation

    2. (b) At the time of trial? If (1) D is present and (2) fully testifies, then no 6A violation But, if W is evasive, if W denies it, or iif W pleads privilege,

    3. then possible 6A violation

    4. Confrontation Clause – Where the prosecution tries to take an out-of-court testimonial statement by W and use it against D, it won’t be admissible if W isn’t available even if a hearsay exception applies. Requires W to be subject to cross, not necessarily at the time of the statement.



    1. Testimonial Meaning
      - Crawford: Where testimonial evidence is at issue 6A demands, what CL requires, unavailability and prior opportunity to cross. We leave for another day any effort to spell out a comprehensive definition of testimonial. It applies at a minimum to prior testimony at a preliminary hearing, grand jury trial, & police interrogations. Statements are non-testimonial made during police interrogation attempting to provide assistance to meet an ongoing emergency.
      - The Court later clarified in Davis/Hannan: declaration made during official interrogation will be testimonial if primary purpose is to establish or prove past events potentially relevant to later criminal prosecution

    1. Davis (J. Scalia & all 9 agree) - 911 call circumstances & Qs were to enable police assistance in an ongoing emergency, thus non-testimonial.

    2. Hammon: (8 agree) domestic violence dispute interrogation was after the emergency & was looking for criminal conduct; formal enough to be in separate rooms. Even though Crawford interrogation was more formal (Miranda warning; tape-recorded; at station), the purposes were the same – nail down the truth about past criminal conduct.
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