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Law Outlines Evidence Outlines

Confrontation Clause Outline

Updated Confrontation Clause Notes

Evidence Outlines

Evidence

Approximately 58 pages

In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...

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  1. Confrontation Clause – only applies to crim!!!

    1. 6th amendment: In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the Witnesses against him”

      1. no legislative history

      2. words subject to number of possible interpretations

      3. purpose:

        1. to protect against admission of Spanish-Inquisition type evidence

        2. Sir Walter Raleigh

    2. Case Law

      1. Old rule: Ohio v. Roberts (1980)

        1. Facts: D charged with forgery of check and possession of stolen credit cards. D wanted to use V’s daughter to show that she had given D the checks/permission to use them. She did not testify to this during prelim hearing, and did not appear at court. D argued this story anyhow, and govt. sought to enter her testimony from prelim.

        2. Held: statement not a violation of CC, because it bore adequate indica of reliability (former testimony rule)

        3. Hearsay statement not a violation of confrontation clause if: (2 prongs)

          1. Declarant is unavailable – prosecution must produce the hearsay declarant or demonstrate their unavailability

          2. Statement itself had certain “indica of reliability,” meaning either

            1. Statement fell within a “firmly rooted hearsay excpetion”…

              1. All non-residual exceptions counted as firmly rooted

              2. Policy: decades of thinking behind what kind of OOC statatements were reliable enough to be admitted

            2. OR Statement bore “particularized guarantees of trustworthiness”

              1. Even if statement fell under residual exception, it could be admitted if it had particularized guarantees of trustworthiness

        4. Cases Interpreting Roberts:

          1. Lilly v. Virginia (1998):

          2. Facts: D arrested after stealing liquor, guns, kidnapping, and murdering. Partner in crime admitted to police his involvement, and claimed Lilly shot V. Refused to testify.

          3. Held: the admission of PoC’s confession violated Lilly’s CC right.

          4. Rule: Supreme Court plurality: statements against penal interest (accomplices’ confessions that inculpate a criminal D), admitted under FRE 804(b)(3) are not firmly rooted.

            1. Breyer: Roberts linkage of the confrontation right so closely to the “firmly rooted” provisions of hearsay rule was both too broad and too narrow a standard

            2. Scalia and Thomas: confrontation right is more limited than Roberts, Wright and Lily held – the right “is implicated by extra judicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony to confessions”

          5. Idaho v. Wright (1990):

            1. Facts: Wright convicted with lewd conduct with her two daughters. Govt decided 3yo daughter was incapable of testifying, and so put Doctor on stand, who was an expert and testified that tests revealed evidence “strongly suggestive of sexual abuse” and who testified as to statements made to him by youngest daughter.

            2. Held: Admission of this hearsay evidence through the residual exception was a violation of CC.

            3. Rule: Residual exception not firmly rooted.

        5. Crawford’s problems with this interpretation:

          1. Confrontation is not about reliability (gives more weight to FRE than constitution)

          2. Too indeterminate and manipuable

          3. Disconnected from underlying point of CC

            1. Underlying point = to reject the continental, inquisitorial mode of trial, in which witnesses are questioned privately by examining officials, and the defendant never has an opportunity to confront his accusers face to face. Core point = D’s ability to cross examine

      2. Current rule: Crawford v. Washington (2004)

        1. Facts

        2. Rule:

          1. Testimonial hearsay statements admitted against criminal defendant only if

            1. Declarant is unavailable; and

            2. Defendant has had a prior opportunity to cross examine

          2. When is a statement testimonial?

            1. Crawford rule doesn’t actually say, just says that Sylvia’s statement is testimonial under any definition because declarant was

              1. in custody

              2. mirandized

              3. interrogated

              4. statement was taped

            2. Scalia: pg 587

              1. Ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially

              2. Extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions

              3. Statements that were made under circumstances which would lead an objective witness reasonably to believe that the...

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