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A Federal Defender’s Guide to Confrontation

A Federal Defender’s Guide to Confrontation. Jessica Smith School of Government, UNC-Chapel Hill. Evidence. Evidence. 32,700. Session Objective At the end of this session you will be able to: Understand & apply the new confrontation clause rules. Crawford Holding:

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A Federal Defender’s Guide to Confrontation

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  1. A Federal Defender’s Guide to Confrontation Jessica Smith School of Government, UNC-Chapel Hill

  2. Evidence

  3. Evidence 32,700

  4. Session Objective At the end of this session you will be able to: Understand & apply the new confrontation clause rules

  5. Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

  6. Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

  7. V’s statements to 1st responding officers or 911 operator • Child V’s statements to a family member, social worker, or doctor • Forensic reports • Autopsy reports • Chemical analyst’s affidavit • Chain of custody record

  8. QUESTION: Government seeks to introduce D’s statements, made at the station house. Does Crawford apply?

  9. Crawford does not apply to D’s own statements

  10. Crawford does not apply to D’s own statements • Nor does it apply to D’s evidence

  11. QUESTION: Excited utterances are always non-testimonial. True or False?

  12. Crawford analysis is separate from hearsay analysis

  13. Confrontation Clause Hoop (Crawford) Hearsay Hoop

  14. Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

  15. What does it mean to “be subject to cross-examination at trial”?

  16. QUESTION: Witness asserts privilege. Is Witness subject to cross-examination?

  17. QUESTION: W experiences memory lapses. Is W subject to cross-examination?

  18. What does it mean to • “be subject to cross-examination at trial”? • W who asserts privilege is not subject to cross-examination • W who has memory lapse is

  19. Is it testimonial? • Crawford said: • Includes statements by those who “bear testimony” against the accused • Testimony = a solemn declaration used to establish or prove some fact

  20. Is it testimonial? • However, Crawford declined to comprehensively define the term

  21. Is it testimonial? • Police interrogation

  22. Is it testimonial? • Police interrogation • -of suspects

  23. Is it testimonial? • Police interrogation • -of suspects • -of victims

  24. Davis/Hammon Rule: (1) Statements arenontestimonial 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.

  25. Davis/Hammon Rule: (1) Statements arenontestimonial 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.

  26. Davis/Hammon Rule: (2) They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

  27. Davis/Hammon Rule: (2) They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

  28. Davis Holdings: • 911 call statements = nontestimonial • V spoke about events as they were happening, not later • V facing ongoing emergency • Q&A necessary to resolve emergency (including ID of D) • Formality lacking

  29. Davis Holdings: • (2) V’s statements to responding officers = testimonial • Not much different from those in Crawford • Interrogation was investigation of past conduct • No ongoing emergency • 2nd questioning • Was “formal enough”

  30. Is it testimonial? • Police interrogation • - of suspects • - of victims • - of witnesses

  31. QUESTION: Is a blood test report testimonial?

  32. Is it testimonial? • Police interrogation • Forensic reports & affidavits

  33. Is it testimonial? • Police interrogation • Forensic reports & affidavits • Chain of custody evidence • X Business records • X Equipment maintenance records • X Casual remark to an acquaintance

  34. QUESTION: D threatened the witness. Does a Crawford exception apply?

  35. QUESTION: Granny makes a statement while dying. Does a Crawford exception apply?

  36. Crawford Exceptions: • Forfeiture by wrongdoing • Dying declarations

  37. Crawford Exceptions: • Forfeiture by wrongdoing • Dying declarations

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