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Confrontation Clause Outline

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This is an extract of our Confrontation Clause document, which we sell as part of our Evidence Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1) Confrontation Clause - only applies to crim!!!

a) 6th amendment: In all criminal prosecutions, the accused shall enjoy the be confronted with the Witnesses against him" i) no legislative history ii) words subject to number of possible interpretations iii) purpose: (1)to protect against admission of Spanish-Inquisition type evidence (2)Sir Walter Raleigh b) Case Law i) 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) (a) Declarant is unavailable - prosecution must produce the hearsay declarant or demonstrate their unavailability (b)Statement itself had certain "indica of reliability," meaning either (i) 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 (ii) 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: (a) Lilly v. Virginia (1998): (b)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. (c) Held: the admission of PoC's confession violated Lilly's CC right. (d)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.

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