LAW
Evidence Outline.docx

Split of authority and near miss theory o courts are

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Split of Authority and Near Miss Theory o Courts are split on how liberal to be with this rule. o Majority: Near Miss: Admit hearsay that almost falls in under an exception, but with a slight tweak. o Minority: 5 th and 11 th Circuits don’t follow that rule. o Confrontation Clause 6 th Amendment: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. Pointer : 6 th Amendment incorporated through 14 th Amendment to be against the states. Crawford Admission of testimonial hearsay against a criminal defendant violates the Confrontation Clause unless: o The declarant is produced at trial and the defendant has an opportunity to cross-examine; or o The declarant is unavailable and there was a prior opportunity to cross-examine. This test only applies to “testimonial hearsay.” Roberts In order for [non-testimonial] hearsay to be admissible against a defendant in a criminal trial, the out-of-court statement must either: o fall within a firmly rooted hearsay exception; or o have particularized guarantees of trustworthiness such that adversarial testing would add little to the statement’s reliability. Testimonial v. Non-testimonial Page 51 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar Crawford : Gives a list of different ones: o Testimonial Ex parte testimony or its equivalent Statements taken by police in interrogation Circumstances that would lead objective witnesses to believe that statements would be later used at trial o Non-testimonial Casual remark to a friend Business records Statements of coconspirators Contents of some other hearsay exceptions (i.e., authorized admissions, etc. Ongoing Emergency as Nontestimonial o Davis v. Washington Hearsay in testimonial where circumstances objectively indicate that the primary purpose of the interrogation is to establish past event relative to a potential criminal prosecution. Hearsay is non-testimonial where the statements are made under circumstances objectively indicating that the primary purpose of the interrogation is to meet an ongoing emergency. o Michigan v. Bryant Ongoing emergency is when there is a danger imposed to the victim, the police, and the public. It is an objective inquiry of the facts and circumstances. o Ohio v. Clark A child making a statement about child abuse, who doesn’t understand the intricacies of the criminal justice system, is not speaking for the purpose of making evidence. There is an ongoing emergency when the victim may be released into the hands of the potential assailant. A reporting statute does not convert a conversation within the realm of the reporting statute into a law enforcement mission aimed primarily at gathering evidence for prosecution.
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