Relevancy is it relevant? 401



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J. Thomas Dissent: limit testimonial to formal testimonial materials: easier to apply & more predictable results. White v. Illinois (1992, overruled) – set forth Thomas’ view that 6A is implicated by out-of-court statements only if they are in formal testimonial materials such as “affidavits, depositions, prior testimony, or confessions”

  • - Bullcoming v. New Mexico (2011 J. Ginsburg) – 5 member plurality held B.A.C. results inadmissible by non-administering tech. FN 6 defines testimonial broadly (like Davis & Hammon): “To rank as testimonial, a statement’s primary purpose must be to establish or prove past events potentially relevant to later criminal prosecution.
    - Melendez-Diaz (2009) - business & public records are generally non-testimonial/admissible absent confrontation because they are not created to establish/prove some fact at trial. BUT lab reports by law enforcement personnel are testimonial.
    - Michigan v. Bryant (2011) (shaky majority J. Sotomayor) - dying man with a gunshot wound tells police who shot him. Evidence was nontestimonial bc during an ongoing emergency (gunman’s unknown intentions & location); admissible as a dying declaration. *Scalia dissenting: (maybe primary purpose test isn’t so easy) - excessive examinations w the “purpose” of protection is so transparently false that professing to believe it demeans this institution. *Note. If Sp Ct can’t agree how are trial judges supposed to rule; underscores the relevance of J. Thomas’s test, the broad view of testimonial is hard to predict



    1. Rule of Forfeiture: remedy if someone causes a witness to be unavailable to testify at trial is that person loses 6A right to confrontation. Crawford (reiterated in Davis): “the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.” Could be broad or narrow depending on prosecutors’ proof requirement to show D’s purpose was to make declarant unavailable as a witness.

    1. Intent: Giles: D killed former gf; state court ruled he forfeited his 6A right & prosecution did not need to prove his purpose in killing her. Crawford & Davis framed the forfeiture rule as equitable, thus D’s wrong was enough to trigger it bc no one should profit from their wrongs. Sp Ct 6-3 ruled the prosecution must show D’s motive was to prevent the witness from testifying. Opinion showed the lack of consensus among the Court.
      J. Breyer dissented
      maxim is no one shall be permitted to take advantage of his own wrong. Even a D who killed in anger and not with the purpose of eliminating a witness has committed a wrong from which he should not profit



    1. Confrontation Clause Applied
      8.1 – admissibility of letter written by wife and left with a neighbor. Wife said her husband was angry about an affair and she thought he poisoned her and if she died it was requested that the letter be given to police.
      Is her letter testimonial? What is testimonial? Crawford holding: “Where testimonial evidence is at issue, 6A demands what CL required: unavailability & a prior opportunity for cross.” Court doesn’t spell out testimonial, “whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial and police interrogations.”

    • Various formulations of “testimonial” exist:
      (1) ex parte in court testimony or equivalent (affidavits, custodial examinations, prior testimony that D was unable to cross-examine, or similar pretrial statements that declarant would reasonably expect to be used by the prosecution;
      (2) extra judicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony, or confessions citing White v. Illinois 1992 Thomas, J. Concurring – his definition of testimonial – why he doesn’t join in FN 6 in Bullcoming);
      (3) statements were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
      (4) Bullcoming FN 6 – J Ginsburg’s opinion defined testimonial broadly, like Davis - “to rank as testimonial, a statement must have a primary purpose of establishing past events particularly relevant to later prosecution”

    1. Wisconsin court applied #3 from Crawford and found the letter to be testimonial because Julie not only reasonably expected police to see it, but requested that the police see it, which directly implies her knowledge of a future use in trial.
      Because it is testimonial, it implicates 6A right to confrontation, the court went on to apply a broad version of the forfeiture rule believing that D was involved in wrongdoing and prevented his wife from testifying in this trial, so since he should not get a windfall from his wrongdoing, the letter was admitted.
      **Note this was before Giles – if the Wisconsin court would’ve addressed intent, the result may have been different since if he killed his wife it was not for the purpose of preventing her from testifying at trial because there would not have been a trial at the time of the murder. Counter-argument - in deciding to kill someone, you are aware there is a future trial for such a crime and in deciding to kill her in completion of your crime you were preventing any witness testimony at your trial. **Appeals court ruled the letter should have been inadmissible, but it was harmless error due to the weight of the prosecution’s case.

          1. 8.2 Confession in Blood – woman was strangled to death. A man tells his nephew he’s involved as an accomplice. His statement was not made for purposes of future prosecution; it just ends up getting used that way. What matters is speaker’s intent at the time of the statement - Non-testimonial, so D’s 6A right was not violated.



    1. Crawford Recent and Remaining Battles (p. 620-25) covered in supplement. Do children ever make statements with prosecutorial effects in mind? Do we look at the child’s intent or the examiner’s intent?



      1. Statements of Children: The author only found one case after Bryant & Bullcoming that even mentioned them & it only did so in passing. The case didn’t even really apply Davis.
        - Loy, 52 Cal.4th 46, 254 P3d 980 (2011)– statements made by 12 year old girl to friend a week before her murder where she cried softly and told her friend she was afraid of her uncle who made weird looks and would touch her inappropriately and she told her friend not to tell anyone. D, victim’s uncle ends up being tried for her murder. The court held this was not testimonial.
        - Cage (2007) Mother cut him in the face with a shard of glass – statement being made to a doctor for the purposes of medical diagnosis or treatment, but it avoids a confrontation clause here, in view of Ca Sp Ct, because the primary purpose here was not making statements that could be used in a later prosecution, but a medical disclosure for treatment purposes
        - Carlson (8th Circuit) – 3 year old boy, court decides, boy had already told his mother what had happened here had a primary purpose for a criminal prosecution, there was no ongoing emergency
        Future of children’s statements – court talks about four Bullcoming dissenters – Alito, Kennedy, Breyer, and Roberts (AKBR like Starwars) (p. 616) would not have required the lab tech to have actually performed the test to appear in trial. Could those maybe pick up one more vote?



      2. Applied: White v. Illinois (1992) - 4-year-old’s babysitter hears child scream and sees D leaving child’s room, then child tells her that D touched her inappropriately. Child later repeats same story to mother. Then later tells same story to a police officer and nurse and doctor. Are her statements admissible?
        Bullcoming FN 6 – testimonial statements have the primary purpose of proving past events particularly relevant to later prosecution.
        - Babysitter and mother - caregivers: primary purpose here was concern for her well-being
        - Nurse and doctor - medical providers: as we saw in supplement cases, there is primarily a medical purpose here
        - Police officer – maybe child molester on the loose – cite Bryant majority for ongoing investigation – this was a close question, but the court admitted it here



    1. Bruton Doctrine – Joint Trial problem - Co-D's incriminating confession may not be introduced at joint trial if it violates D’s confrontation clause rights.

      1. Bruton (1968) - During a joint trial of a D and his accomplice, accomplice made an out-of-court confession; it was admissible against speaker, but not Co-D, so court gave a limiting instruction. Appeals court finds confession inadmissible bc of due process violations against Co-D bc D is entitled not testify against himself under 5A and there’s a substantial risk of unfair prejudice. This use also deprived Co-D of right to cross under 6A. *Confession of a co-D is so lacking in reliability with regard to the non-confessing D that the hearsay rule must be strictly applied.
        Dissent (White): practical result of Bruton so severely limits the ability of prosecutors to hold joint trials.

        Options for the prosecutor in these cases: severed trials; separate juries; testimony by the confessing accomplice; redaction; bench trial; admissible of statement against non-maker. Bruton problem arises when these tactics aren’t available.



        1. 8.6 – W links Ds to prison gang in dog-mauling trial. In a letter to an inmate one D said the other referred to the scheme as the “dog o war” operation. This letter implicates both Ds knowledge of the dangerous dogs.
          Out-of-court statement offered to prove the truth of the matter asserted – Hearsay. Even if it is admissible under an exception (i.e. statement against interest if D doesn’t testify, recorded recollection, residual exception if demonstrated as trustworthy, reliable, or both), there could still potentially be a 6A problem, unless (a) declarant appears for cross; (b) declarant is unavailable and D had a past chance to cross; (C) statement is non-testimonial; (d) forfeiture doctrine applies; (e) dying declaration. To determine testimonial: (1) Look to Crawford – applies at a minimum to prior testimony at preliminary hearing, grand jury, former trial, or police interrogations  letter writer probably had no thought this would later be used against him; or (2) Bullcoming – primary purpose of events relevant to prosecution  D’s letter doesn’t fit with this. Letter is likely non-testimonial so subject to 403 it is possibly admissible.



      2. Redaction (Brutonized statements):
        -- Is there a direct and obvious link to the co-D so the brutonized statement won’t work? Or will it be sufficiently attenuated so that the statement is permissible?

        1. Richardson v. Marsh (1987) – Ds on trial – state redacted 1 Ds confession to omit all reference to Co-D, Marsh. Confession said they were riding along in the car devising murder plan. Later in trial Marsh admits she was in the car during convo, but Williams statement in and of itself doesn’t reference her or even anyone else’s existence/presence during convo. Court holds that this didn’t fall within Bruton Doctrine bc statement was adequately & carefully redacted.

        2. Gray v. Maryland (1998) – Some incriminating extrajudicial statements of a Co-D which name D are so prejudicial that limiting instructions are not effective (Bruton). D confessed to beating victim to death w 2 others. State tried Ds jointly; A redacted version of the confession was admitted – it used the word “deleted” whenever Gray’s name appeared. This was found prejudicial bc it unnecessarily called the jury’s attention to the “blanks” – they look to defense table & their wheels start turning, thus this runs afoul of Bruton. Jury can react similarly in both an unredacted confession and one redacted in a way that leaves an obvious blank space or uses the word ‘deleted.’

        3. 8.7 Edwards, 159 F.3d 1117 (8th Cir. 1998) - a 1988 fire killed six firefighters. In ‘95 people were charged. In a tape-recorded statement Edwards told investigators about taking 2 of them to get gas. Statement was redacted to replace Co-Ds with neutral pronouns. Statement was to police under formal circumstances; primary purpose was looking toward to a future criminal trial, which is what happened (like Crawford)
          Admissible? No reference to Ds involvement or attention-drawing to blanks, arguably the jury could still infer. 8th circuit affirmed w language in Gray – “why couldn’t witness have said ‘blanks statement’ with pronouns”
          **Point – When you use pronouns or generalities it doesn’t, to the same degree at least, attract jury’s attention as much.



    1. Unit 2: Reliability Chapter 8 Confrontation Clause

    2. Compulsory Process 6A: "In all criminal prosecutions, the accused shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.” This gives a crim D the right to subpoena defense witnesses & it’s been more broadly interpreted to entitle a D to obtain & present all evidence helpful to his defense.



    3. Chambers v. Miss. (1973) – D has a right to present a defense. Chambers convicted of murder, but another man admitted to it. D argued that he didn’t do it and the other guy did. State rules prohibited D from impeaching other guy when he testified he didn’t confess (Ms. Voucher Rule) & prevented D from introducing testimony from other witnesses about other guy’s confession. These rules deprived D of a trial in accord w traditional & fundamental standards of due process. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically so to defeat the ends of justice.
      Note: this case wasn’t decided under 6A compulsory clause, it was decided under 14A due process clause –it embraced rights to confront and cross witnesses and call witnesses in one’s own behalf - maybe it was done this way to be kept low key to help get a decision. **Timmy Hancock argued this case for the state to the Sp Ct – Ole Miss classmate of Davis

    4. Unit 2: Reliability Chapter 9 Lay Opinions and Expert Testimony



          1. Lay Opinions: 701 - If witness is not testifying as an expert, testimony as opinion/inference is limited to those that are:
            (a) rationally based on witness’
            perception, and (b) helpful to a clear understanding of witness' testimony or determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (added in 2000 amendment to avoid expert testimony under guise of lay testimony).

    1. Advisory Co noted that amendment does not prohibit prototypical examples relating to appearance, identity, manner of conduct, degrees of light or darkness, sound, size weigh, distance, & others that cannot be described factually apart from inferences. I.E. D was furious. It’s one of those things that’s hard to describe, we just know it when we see it “fury looks like – well – fury.”



    2. Clip - insurance fraud case. W: He said, I’m a poor man. Lawyer: what tone of voice? Witness: depressed. (a) His perception – jury didn’t see it; (2) Helpful for jury to know his demeanor; (c) Appearance perceptions are noted by advisory co not to be excluded (D could object to not laying a foundation, but this would lead the lawyer to dig further what was his voice like when he said, what made you come to that conclusion, which might just draw more attention to it). *If W said, “He sounded guilty” that would cross the line since that’s really the ultimate question to be decided by the jury

    3. Brother’s Keeper Clip - Disagreement about time of death; witness said he came by in the morning & he hadn’t been dead long. “I could tell he was dead. How could you? His arm was floopsy. He’s cool, not cold so I don’t think he’d been dead too long.” Judge Davis: “He was dead and his arm was floopsy” - things ordinary people know and can observe, but “he had not been dead long” – tougher. Could argue that as a farmer his business allowed him to see dead animals.

    4. 9.2 – D charged with selling cigarettes to a minor – D seeks to offer testimony of witnesses who were familiar with the buyer and would testify that she appeared to be 20-21 years old. Judge Davis – this probably fits under that language of the advisory committee note “prototypical examples of appearances.
      9th Circuit Court disagreed with trial court’s exclusion of these witnesses because giving a determination of someone’s age is something that lay people can normally express

    5. 9.3 – witness is going to give opinion as to discovering cocaine in D’s shoes. Since testimony was not based on specialized knowledge within the scope of 702 but rather based on the layperson’s personal knowledge, court said she could give this testimony because she knew what cocaine looked, smell, and tasted like

    6. Ganier (2006) – Forensic test results run on computers & related testimony constitutes ‘scientific, technical, or other specialized knowledge’ within the scope of 702 since it requires interpretation by a forensic computer specialist. D indicated some files were transferred to recycle bin rather than deleted. Gov. computer specialist used forensic software to search comp and found evidence that D to avoid conviction possibly deleted some docs. Gov did not supply summary to the other side, which criminal procedure rules require for expert testimony. Prosecution argued the specialist was offering lay testimony bc anyone could figure out with over the counter, commonly available software. Court says this is an area of expertise - people can use thermometers at home and use those things accurately, but other kinds of specialized tests get into an area of expertise and it finds this case to be more like the latter that required specialized knowledge. Since it’s expert testimony, the trial court excluded it, but appeals court said that was too severe since there was no bad faith & no serious prejudice bc D already had his own expert witness lined up to testify. Plus, there were other options the trial judge could have utilized: continuance, enter any other order under the circumstances, order discovery.
      **Note: advisory committee’s note to 2000 amendment to 701 implies that while a lay witness may not offer opinion testimony based on “specialized knowledge,” the witness may do so based on his or her “a particularized knowledge” gained by “his or her position in a business.” arguably, “the particularized knowledge” on which lay opinion may be based could also constitute ‘specialized knowledge.’

    7. 9.4 – government wished to present a witness’s testimony about how he deciphered the hieroglyphic code and determined the phone numbers of persons listed in the book. Judge concluded he could testify and explain how he deciphered the hieroglyphics.
      Should the trial court have permitted this testimony as a lay witness?
      Davis: deciphers cryto-quotes – his personal knowledge and he has a knack for it
      GRNG = THAT about 95% of the time, requires an eye for linguistic pattern s

    8. 2 Key Differences bw Lay & Expert Opinions: (1) Only expert opinions may draw upon the witness’s ‘scientific, technical, or other specialized knowledge (701(a)). (2) Lay witnesses cannot rely on hearsay, but experts may in certain cases (Melton, 703)



          1. Expert Testimony: 702 - If scientific, technical, or other specialized knowledge will assist trier of fact to understand evidence or determine a fact in issue, a witness qualified as an expert (#1 Proper Qualifications) by knowledge, skill, experience, training, or education, may testify in form of opinion or otherwise, if (1) testimony is based upon sufficient facts or data (#2 Proper Topic). (2) testimony is product of reliable principles and methods (#3 Sufficient Basis), and (3) witness has applied principles and methods reliably to case facts (#4 Relevant and Reliable Methods). and must meet #5 Rule 403 weighing test

            **Courts often favor expert testimony admissibility bc opponent is free to counter it w/ opinions from rival experts; high trial ct discretion



    1. Proper Qualifications for Experts - 702 allows expert testimony derived from experience as well as formal training or education.

    1. 9.5 - Johnson Man could id marijuana based on its appearance, due to his experience transporting it for many years and his use of it. His testimony conflicted w other side’s witness who said there’s no test to differentiate bw marijuana types. 702 allows experts to testify from experience. Expert testimony doesn’t foreclose issues from jury’s consideration bc they can reject it. D can counter expert. Note, lay testimony can counter expert testimony

    2. Jinro America (2001) – Substantial, practical expertise, training, or education in particular relevant field is necessary to qualify a witness as an expert under 702 & his testimony must be solely based in that area. Expert in Korean companies could not testify outside of that



    1. Proper Topics
      Matters of Common Knowledge - Sometimes reasonable assumptions about common knowledge avoid experts need to clarify i.e. trademark dispute – match v. macho v. men’s toiletries – one co had English expert say they are similar  702 analysis – (1) He has specialized knowledge, but it’s prob not needed here bc he’s testifying to things the jury likely already understands. Appeals ct, abuse of discretion standard, affirmed admission, but said it would have been okay either way.
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