Forensic reports as testimonial o melendez diaz v

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Forensic Reports as Testimonial o Melendez-Diaz v. United States : Certified lab report is testimonial out-of-court hearsay statement. You have to satisfy Crawford to introduce it. Page 52 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o Bullcoming v . New Mexico : There cannot be a surrogate witness. The one who conducted or observed the test must testify. o Williams v. Illinois : It is non -hearsay when a surrogate analyst gives his or her expert opinion, based partly on the forensic report. Privilege o Overview & Introduction Only the holder of the privilege may assert the privilege. Privilege applies at all stages of the proceedings. FRE 501: Privilege in General The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: o the United States Constitution; o a federal statute; or o rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. o [This means, for example, a diversity case.] Wigmore Factors to Determine Whether There Should Be a Privilege (1) Communications originate in a confidence they will not be disclose; (2) Confidentiality is essential to the relationship; (3) Relation is one which society wishes to foster; and (4) The injury to the relationship that would flow from disclosure of the communication is greater than the benefit to the litigation process. o Spousal Privilege Marriage is defined under state law. Testimonial Privilege Trammel v. United States o The witness-spouse holds the privilege and s/he can decide whether to testify or not. o This is a change from under Hawkins . In that case, the court held that a witness-spouse may not testify against the defendant-spouse. However, the FREs rejected this. It is still followed in some jurisdictions, including Kentucky. Scope o Covers all communications and acts. o Covers those communications and acts occurring before the marriage and during the marriage if the two are married at the time of litigation. o Requires marriage. Page 53 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar Cases to Which the Testimonial Privilege Applies o The testimonial privilege applies onto to criminal cases in which the spouse in a defendant and the testimony is adverse to the spouse. Exceptions o (1) Litigation between spouses; o (2) Wrongful conduct by one spouse against person or property of another spouse or minor child of either; o (3) Any proceeding that may have an adverse effect on the interests of a child of either spouse; o (4) When one spouse is charged with one of several enumerated federal sexual offenses with a third party; and o (5) Where the spouses were joint participants in the charged crime.
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