Reading Notes | Week 11
03.28.2023, 03.30.2023
Date:
03.28.2023
Topic:
Reliability: Hearsay Exceptions Requiring Reliability
Reading:
494 - 525 (skip Shortcuts to Truth)
Rules:
FRE 804
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FRE 804: Exceptions to the Rule Against Hearsay: When Declarant Is Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the
declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the
court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity,
physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or
other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)
(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest
had — an opportunity and similar motive to develop it by direct, cross-, or redirect
examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil
case, a statement that the declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it
to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary
interest or had so great a tendency to invalidate the declarant’s claim against someone else or
to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is
offered in a criminal case as one that tends to expose the declarant to criminal liability.
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by
blood, adoption, or marriage, or similar facts of personal or family history, even though the
declarant had no way of acquiring personal knowledge about that fact; or
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(B) another person concerning any of these facts, as well as death, if the declarant was related to
the person by blood, adoption, or marriage or was so intimately associated with the person’s
family that the declarant’s information is likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability.
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully
causing — the declarant’s unavailability as a witness, and did so intending that result.
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I. Hearsay Exceptions Under Rule 804: “Declarant Unavailable”
A. Past Testimony: Focus on 804(a) and 804(b)(1)
Volland-Golden v. City of Chicago
1. Rule of Law: For purposes of the former-testimony exception to the hearsay rule, a former
party will be considered a current party’s predecessor in interest if the former party’s stake in
the former litigation is of equal weight to the current party’s stake in the current litigation.
2. Facts
a) John Volland (π) was arrested by Chicago police officers after a traffic stop. Officers used
pepper spray and physical force in arresting Volland.
b) The State of Illinois charged Volland with assault and resisting arrest.
c) Volland testified in his own defense at his criminal trial and was ultimately acquitted.
d) Volland then brought a civil action against the police officers and the City of Chicago (∆)
under 42 U.S.C. § 1983.
e) Volland died before trial in the civil action.
f) His sister, Madonna Volland-Golden (π), made a motion in limine asking the district court
to allow Volland’s testimony from his criminal trial to be introduced during the civil trial.
3. Issue: For purposes of the former-testimony exception to the hearsay rule, is a former party
the predecessor in interest to a current party if the former party’s stake in the former litigation
is of equal weight to the current party’s stake in the current litigation?
4. Holding and Reasoning (Shadur, J.)
a) Yes. For purposes of the former-testimony exception to the hearsay rule, a former party
will be considered a current party’s predecessor in interest if the former party’s stake in
the former litigation is of equal weight to the current party’s stake in the current litigation.
b) Under FRE 804(b)(1), an unavailable declarant’s prior testimony is admissible if:
(1) The testimony was given while the declarant was a witness at a trial, hearing, or
deposition in the same or an earlier matter
and
(2) The testimony is offered against a party or a party’s predecessor in interest who had
the opportunity and similar motive to develop the testimony through direct, cross, or
redirect examination.
c) A party’s status as a predecessor in interest for purposes of Rule 804(b)(1) is not based on
strict privity requirements.
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d) Even if the former party and current party have different types of interests in their
respective litigations, former party will still be considered the current party’s predecessor
in interest, as long as neither party’s interest has greater weight than the other’s
(1) Here, Volland is unavailable as a W & gave his former testimony during his criminal
trial; for Volland’s criminal-trial testimony to be admissible during the civil trial, the
State of Illinois must be the predecessor in interest to the City of Chicago and the
officers, and the state must have had a similar motive to develop Volland’s testimony
by cross-examination during the criminal trial.
(2) The state had an interest in prosecuting Volland in the criminal action, & the city and
officers have an interest in not paying damages to Volland’s estate in the civil action.
(3) These are different types of interests, but they are of equal weight.
e) Accordingly, the state is the city and officers’ predecessor in interest for purposes of
Rule 804(b)(1).
f) Moreover, the criminal and civil actions both involve the same underlying incident, and
both involve answering the same questions about how the arrest occurred, including
whether Volland used force against the officers and whether the officers used reasonable
force against Volland.
g) During the criminal trial, the state’s goal during cross-examination was to discredit
Volland’s version of the arrest. This is the same objective that the city and officers would
have in cross-examining Volland if he were available to testify at the civil trial.
h) Therefore, Volland’s criminal-trial testimony is admissible under Rule 804(b)(1). VollandGolden’s motion is granted.
5. Additional Notes:
a) 4 factor test for similar motive:
(1) Type of proceeding in which testimony is given
(2) Trial strategy
(3) Potential penalties or $$ stakes
(4) Number of issues and parties
b) Similar motive =/= identical motive
B. Statements Against Interest: Focus on 804(b)(3)
Williamson v. United State
1. Rule of Law: The declarations-against-interest exception to the hearsay rule does not permit
the introduction of non-self-inculpatory statements even when made as a part of broader
statement that is generally against the declarant’s interest.
2. Facts
a) After being pulled over by law enforcement, Reginald Harris was arrested when cocaine
was found in his rental car. While in custody, Harris admitted to transporting the cocaine
for Fredel Williamson (∆).
b) Specifically, Harris told a DEA agent that he was taking the cocaine to Atlanta for ∆, who
was traveling in front of Harris in another rental car at the time Harris was stopped.
c) Harris indicated that he could not make a controlled delivery of the drugs to ∆ because ∆
had seen the police stop Harris and search his vehicle.
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d) ∆ was subsequently charged with cocaine-related offenses.
e) At trial, Harris refused to testify against ∆, but the judge allowed the DEA agent to testify
about Harris's confession under the hearsay exception for statements against interest,
because Harris had implicated himself in his statements and was unavailable to testify.
f) ∆ was convicted on the cocaine charges, and the appellate court affirmed.
g) SCOTUS granted cert.
3. Issue: Does the declarations-against-interest exception to the hearsay rule permit the
introduction of non-self-inculpatory statements made as a part of broader statement that is
generally against the declarant’s interest?
4. Holding and Reasoning (O’Connor, J.)
a) No. Non-self-inculpatory statements are inadmissible under the declarationsagainst-interest exception to the hearsay rule.
(1) This is true even if a non-self-inculpatory statement is made as a part of broader
statement that is generally against the declarant’s interest.
(2) The non-self-inculpatory statements are not trustworthy enough to be admitted under
a hearsay exception, because declarants often have a motive to implicate the ∆ in
order to exculpate themselves.
b) In this case:
(1) Harris’s confession to the DEA agent implicated Harris in the possession of the
cocaine. However, this does not mean that the entirety of Harris's confession was
properly admitted.
(2) Harris’s self-inculpatory statements are clearly against his own interest and
admissible, but his statements that tended to implicate ∆ are not as clearly against his
interest; Harris may have had incentive to implicate ∆ to decrease his own exposure
to criminal liability.
(3) The lower courts did not establish whether each of the statements Harris made to the
DEA agent was truly self-inculpatory before admitting the statements.
c) As a result, the judgment is vacated, and the case is remanded to the court of appeals for
further proceedings including a determination of whether each statement in Harris's
confession was truly against Harris's interest.
C. Dying Declarations: Focus on 804(b)(2)
Shepard v. United States
1. Rule of Law: An out-of-court statement made by a declarant who is not in imminent
expectation of death is not admissible under the dying-declaration exception to hearsay rule.
2. Facts
a) Shepard (∆) was charged with murdering his wife.
b) In proving the charge, the ¶ sought to introduce into evidence a statement by ∆’s wife to
her nurse stating that her husband had poisoned her.
c) The district court and the 10th Cir. CoA admitted the nurse’s evidence as a dying
declaration, an exception to the hearsay rule.
d) Based on this evidence, ∆ was convicted of murder. The CoA affirmed. ∆ appealed.
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3. Issue: Is an out-of-court statement made by a declarant who is not in imminent expectation of
death admissible under the dying-declaration exception to the hearsay rule
4. Holding and Reasoning (Cardozo, J.)
a) No. For a dying declaration to be admissible as an exception to the hearsay rule, the
person making it must expect to die soon and have no hope of recovery. Also, the
declaration must be made with knowledge of facts, not mere suspicion or conjecture.
b) Here, Shepard’s wife did not not appear to believe that her death was imminent when she
told the nurse that Shepard had poisoned her. In fact, she appeared to be recovering and
expressed to the doctor her hope that she would get better.
c) The District Court should not have admitted the nurse’s report of the wife’s statement as a
dying declaration.
d) The Court of Appeals admitted the same statement under the state-of-mind exception, as
it was offered to rebut the defense’s theory that the wife had committed suicide.
e) Aside from the fact that it was improper to admit evidence offered for one purpose at trial
for another purpose on appeal, the prosecution did not use the declaration as proof of the
wife’s thoughts or feelings but of someone else’s actions.
f) This was an improper use of hearsay evidence. The judgment of the United States Court
of Appeals for the Tenth Circuit is reversed and the case is remanded for a new trial.
D. Forfeiture by Wrongdoing: Focus on 804(b)(6)
United States v. Gray
1. Rule of Law: A defendant who wrongfully and intentionally renders a declarant unavailable
as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the
declarant's statements at that proceeding and any subsequent proceeding.
2. Facts
a) Josephine Gray (∆) was accused of killing her first husband, Norman Stribbling, her
second husband, Robert Gray, and Clarence Goode, who was Gray's former boyfriend
and her accomplice in the killing of Robert Gray.
b) ∆ was indicted on charges of mail and wire fraud relating to her receipt of insurance
proceeds following the deaths of Robert Gray and Goode.
c) At trial, the district court admitted several of Robert Gray's out-of-court statements
concerning threats ∆ had made against him and previous assaults on him by ∆ and Goode.
d) The evidence included Robert Gray’s criminal complaint against ∆ for assaulting him.
e) The district court admitted Robert Gray's statements pursuant to FRE 804(b)(6), which
provides an exception to the hearsay rule when a ∆'s own misconduct renders a declarant
unavailable as a witness for trial.
f) ∆ was convicted and sentenced to 40 years in prison. ∆ appealed.
3. Issue: Does a ∆ who wrongfully and intentionally renders a declarant unavailable as a
witness in any proceeding forfeit the right to exclude, on hearsay grounds, the declarant's
statements at that proceeding and any subsequent proceeding?
4. Holding and Reasoning (Shedd, J.)
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a) Yes. ∆ who wrongfully and intentionally renders a declarant unavailable as a witness in
any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's
statements at that proceeding and any subsequent proceeding.
(1) FRE 804(b)(6) codifies the common-law rule of “forfeiture by wrongdoing,” which
allows a declarant's out-of-court statements to be admitted when the ∆ has by her
misconduct rendered the declarant unavailable for trial.
(2) To admit evidence under this rule, the court must find that the ∆ committed or
acquiesced in wrongdoing with the intent to make the declarant unavailable as a
witness, and that the declarant was in fact rendered unavailable.
b) The purpose of the rule is to prevent wrongdoers from benefiting from their misconduct,
and specifically to prevent ∆s from intimidating or eliminating potential Ws against them.
(1) The rule does not specify that a ∆ must have intended to render the witness
unavailable at a particular trial, nor does the rule limit the scope of the declarant's
admissible statements to only those matters relevant to a particular proceeding.
(2) Instead, the rule applies whenever a ∆ intends to, and does, render a declarant
unavailable as a W against the ∆.
c) Here, ∆ argues 804(b)(6) should not apply because ∆ didn’t intend to procure Robert Gray’s
unavailability at this particular trial, but rather her criminal trial for assaulting him.
(1) However, the rule is not limited to a particular trial in this way.
(2) The only relevant inquiry is whether ∆ engaged in or acquiesced in wrongdoing with
the intent of, and effect of, rendering Robert Gray unavailable as a witness.
d) ∆ had Robert Gray killed when she was well aware that he was to be a witness at court
proceedings regarding his criminal complaint for her assaults on him. Thus, the district
court correctly admitted Robert Gray’s out-of-court statements. Conviction affirmed, but
∆'s sentence vacated and remanded for resentencing on other grounds.`
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Date:
Topics:
Reading:
03.30.2023
Reliability: Constitutional Right of Confrontation
605 - 606: Confrontation Clause and Hearsay: Case Notes
606 - 607: Roberts Synopsis
610 - 624
630 - 639
691 - 693: Hearsay and Confrontation Flowchart
Rules:
Sixth Amendment of the Constitution
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I. Sixth Amendment of the U.S. Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense.
II. Confrontation Clause and Hearsay: Case Notes
A. The Sixth Amendment provides: “in all criminal prosecutions, the accused shall enjoy the right to
be confronted with the witnesses against him”
1. Olden v. Kentucky: when ∆’s accuser testifies against him at trial, the CC protects his right to
test her accusation through cross-exam (p.366)
2. Even a state’s rape shield law sometimes must give way when a rape ∆ wishes to expose a
bias that might have prompted his accuser to charge him falsely
B. SCOTUS has never read 6th A to mean that hearsay in the case of ∆’s accuser speaking
outside court (as opposed to inside court) as inadmissible
1. SCOTUS has recognized for over 100 years that some hearsay may be admitted against
criminal ∆s even if the declarant never submits to cross-exam
2. SCOTUS has also held that the CC bars at least some out-of-court statements by absent
declarants when when those statements satisfy an exception to the hearsay rule
C. SCOTUS’s attempts to reconcile hearsay rule exceptions with CC arose in three eras
1. The Mattox Era: SCOTUS issued a number of ad hoc judgments to resolve particular
controversies, but made little attempt to systemize the CC’s impact on admission of hearsay
2. The Roberts Era: 1980 - 2004; Court tried to crystalize confrontation doctrine around the
familiar hearsay principles of necessity and reliability, but gave up
3. The Crawford Era: (2004 - ) SCOTUS set confrontation doctrine on entirely new footing
centered on the testimonial nature of the out-of-court statement; after Crawford, the
reliability-based analysis of Roberts was dead
D. Relationship between the Constitution and the FRE
1. Constitution is a higher law than the FRE; Constitution is not always a stricter law than the FRE
2. The stricter rule trumps; thus:
a) Evidence permitted by the rules of evidence but forbidden by the CC must stay out
b) Evidence permitted by the CC but excluded by the rules of evidence also must stay out
3. The CC applies in both state and federal courts
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4. The FRE have no force in state courts unless adopted by state law, and state hearsay rules
often differ from federal hearsay rules; therefore, the interplay between the CC and hearsay
rules may differ according to the jxd’s hearsay rules
III. Notable holdings from first 2 eras of attempts to reconcile hearsay rule exceptions w/ CC
A. The Mattox Era
1.
Pointer v. Texas (1965): SCOTUS held that CC was incorporated by the Due Process Clause
of the 14th A and is therefore binding on the states
2.
California v. Green (1970):
a) Rejected the notion that the CC is a codification of the rule of hearsay and their
exceptions as they existed at common law;
b) Two broad holdings (still good law today):
(1) If the declarant is present, testifies at trial, and responds to Qs about the earlier
hearsay statement, the out-of-court statement regains most of the lost protections of
in-court testimony.
The CC therefore does not bar admission of the out-of-court
statement. This is true whether or not the out-of-court statement was made under oath
and subject to cross-exam
(2) If the ¶ has made every effort to produce the declarant, but the declarant proves
unavail, and if the out-of-court statement was made under oath and subject to crossexam by the accused, then the CC does not bar its admission
B. The Roberts Era
1. Ohio v. Roberts (1980)
a) Concerned the use of a W’s out-of-court past testimony against ∆ at a later trial
b) ¶ failed to produce that declarant, whom Ohio courts found to be unavail
c) SCOTUS set out a two-part interpretation of the CC as it applies to admission of hearsay:
(1) The Rule of “Necessity”: whether or not the out-of-court statement was subject to
cross-exam, the ¶ must either produce, or demonstrate the unavailability of, the
declarant whose statement it wishes to use against the ∆
(2) The Rule of “Reliability”: If the declarant is unavail, then the hearsay statement is
admissible only if it bears adequate indicia of reliability
(a) Reliability can be inferred without more in case where the evidence falls within a
firmly rooted hearsay exception or where the ∆ had an earlier, adequate chance to
cross-exam the declarant about the statement
(b) In other cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness
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IV. The Crawford Era
Crawford v. Washington
SCOTUS (2004)
A. Quimbee:
1. Rule of Law: Testimonial statements of witnesses not present at trial are admissible only
where the declarant is unavailable and the ∆ had a prior opportunity for cross examination.
2. Facts
a) Crawford (∆) was charged with assault and attempted murder after stabbing a man who
allegedly tried to rape his wife, Sylvia.
(1) At trial, the ¶ sought to introduce into evidence a recorded statement by Sylvia
describing the stabbing to police;
(2) The trial court allowed the tape to be played for the jury and convicted Crawford.
(3) Sylvia was unavailable to testify at trial because of the state's marital privilege.
b) The Washington Court of Appeals reversed, holding that the taped statement violated
Crawford’s Sixth Amendment confrontation right and did not bear any guarantees of
trustworthiness as were required under Ohio v. Roberts
c) The Washington Supreme Court reversed, agreeing with the trial court that the statement
bore guarantees of trustworthiness and reinstated the conviction.
d) SCOTUS granted certiorari.
3. Issue: Is a recorded statement to the police by an unavailable witness admissible at trial?
4. Holding and Reasoning (Scalia, J.)
a) No. The Confrontation Clause of the Sixth Amendment provides that a ∆ has the right to
confront the witnesses providing “testimonial” statements against him with a reasonable
opportunity for cross-examination.
(1) Testimonial statements consist of in-court testimony and its functional equivalent—
statements that the declarant would reasonably expect to be used by the prosecution.
(2) Although the Confrontation Clause on its face negates almost every hearsay
exception, hearsay may still be admissible under the clause if the declarant is
unavailable and the ∆ had a prior opportunity for cross-examination.
b) In this way, the court modifies the reliability test laid out in Ohio v. Roberts.
(1) Although the point of the Confrontation Clause is to ensure that evidence is
reliable, this is a procedural, not a substantive guarantee.
(2) It cannot be done away with simply bc court determines that the evidence is reliable.
(3) In addition, reliability is an amorphous concept, depending on myriad factors, which
produces judicial unreliability and indeed has allowed admission of testimonial
statements the Confrontation Clause clearly means to exclude.
(4) As a result, the reliability test laid out in Ohio v. Roberts is overruled in favor of the
standard outlined by the Court: testimonial statements of unavailable witnesses are
admissible only where the defendant had a prior opportunity for cross-examination.
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c) In this case, Sylvia’s taped statement against Crawford is testimonial because it was made
to law enforcement officials in an interrogation and Sylvia knew or should have known
that the statement was going to be used at the subsequent trial.
d) Thus, because Sylvia is unavailable at trial due to her marital privilege, and because
Crawford did not have an opportunity to cross-examine the statement, its admission
would be a violation of the Confrontation Clause.
e) As a result, the statement is inadmissible, the judgment of the Washington Supreme Court
is reversed, and the case is remanded.
B. Crim Pro discussion of Crawford from lecture on 03.27.2023
1. Evidence at issue: wife’s tape-recorded statement at police station during interrogation
2. Wife unavail for trial because of spousal privilege
3. Issue: can unavail W’s out-of-courtroom statement be admitted as long as it satisfies Robert’s
test (hearsay exception or trustworthiness)?
4. Reasoning/Analysis:
a) This Q is not answered by text of Constitution
b) Have to turn to historical meaning
(1) Principle evil CC designed to prevent was the use of ex parte exams as evidence
(2) Leaving out-of-court statements to law of evidence leaves little to protect ∆s from
inquisitional practices
(3) Not all hearsay necessarily implicates 6th A’s core concerns
c) What CC is really aimed at: preventing testimony w/out ∆’s ability to confront testifier
d) Meaning of testimony:
(1) Ex parte in-court testimony or functional equivalent
(2) Functional equivalent: invades statements taken by police in course of interrogations
e) Historical records: admissions of testimonial statements not permitted unless:
(1) W unavail
and
(2) ∆ had opportunity to cross-exam
5. Problems w/Roberts:
a) Does not inquire into whether testimony is involved (too broad)
b) Allows testimony to be intro’d with only a reliability determination (too narrow)
6. Requirements of CC Clause:
a) Crawford: T statements be subj’d to cross-exam to ensure reliability (good law)
b) Roberts: replacing required testing w/judicial assessment of reliability (bad law)
7. Rule: well, it varies
a) Where non-testimonial evidence is at issue: use rules of evidence
b) Where testimonial evidence is at issue:
(1) Unavailability is required
and
(2) Prior opportunity for cross-exam required
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C. Key Points:
1. Where nontestimonial hearsay is at issue, it is wholly consistent with with the Framers’
design to give states flexibility in their development of hearsay law
2. Where testimonial evidence is at issue, the 6th A demands what common law required:
a) unavailability and
b) prior opportunity
3. Leave definition of testimonial for another day - for now, it applies at a minimum to prior
testimony at a prelim hearing, before a grand jury, and to police interrogations
4. In this case, the State admitted Sylvia’s testimonial statement against her husband despite the
fact that he had no opportunity to cross-exam her; that alone is sufficient to make out a
violation of the 6th A
5. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one prescribed by the Constitution: confrontation
V. Post Crawford Confrontation Case Law
A. In eight major cases decided in the first eight years after Crawford, the Justices strived to resolve
the questions Crawford left open; see: p. 633
1. At last, in Ohio v. Clark in 2015, eight justices agreed on a single definition of testimonial
hearsay narrow enough to produce a unanimous judgment for ¶ in that case:
2.
Ohio v. Clark: a report of physical abuse made by a 3 1/2 year old in response to Qs from his
preschool teachers was nontestimonial because neither the child nor his teachers had the
primary purpose of assisting in a prosecution
3. Hemphill v. New York (2022): A criminal ∆ does not “open the door” to admission against
him of a testimonial hearsay statement otherwise barred by the CC simply by presenting
evidence that the trial judge deems to have created a misleading impression that the
testimonial hearsay was reasonably necessary to correct
B. Whorton v. Bockting (2007)
1. Where testimonial hearsay is at issue, Crawford displaced Roberts-style reliability analysis
2. But Crawford court said almost nothing about constitutional safeguards against admission of
nontestimonial hearsay
3. In Davis v. Washington (2006), court held that CC imposes no limit on admission of
nontestimonial statements
4. In Whorton a year later, Court ruled that Crawford is flatly inconsistent with the prior
precendent, Roberts, and that Crawford overruled it
5. Assessing Crawford’s impact on trial accuracy, court said Crawford might avoid some
inaccurate trial outcomes by excluding unreliable testimonial statements that had slipped past
trial judges under Roberts; however, Court admitted that Crawford’s overall impact on trial
accuracy may prove negative
6. Though its now clear that the CC offers no protection against unreliable nontestimonial
hearsay, some defense attorneys/legal scholars argue that the DP clauses in the 5th and 14th
bar unreliable hearsay whenever its admission would render a trial fundamentally unfair
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C. Giles v. California (2008)
1. Rule of Law: A wrongful act of a ∆ creates a forfeiture of his 6th A right to confront a
witness against him only when the act was designed to prevent the witness from testifying.
2. In Crawford, court said: “the rule of forfeiture by wrongdoing extinguishes confrontation
claims on essentially equitable grounds.”
a) Court did not say whether this forfeiture principle follows 804(b)(6) in applying only if
the ∆’s wrongdoing was intended to cause the declarant’s unavailability as a witness
b) Justices left lower courts wondering if ∆s perhaps forfeit their rights to confront accusers
whenever their wrongful acts render those accusers unavailable to testify at trial
c) Q of how to interpret was consequential:
(1) Category of cases in which ∆’s wrongdoing makes their accusers unavail is broad
(2) In contrast, a requirement that ¶s prove the ∆’s purpose was to make the declarant
unavail as a W could vastly shrink the doctrine’s scope; even if many ∆s harbor and
act on that intent, it is super hard for ¶s to prove unspoken motives
3. Court finally addressed the Q of intent in Giles
a) State argued here that in killing his ex-gf, Giles forfeited his right to cross-exam her
about her claim he had beat her; she made that claim to a police officer who responded to
a domestic violence complaint ~ three weeks before her death
b) Court’s holding: constitutional doctrine of forfeiture by wrongdoing, like Rule 804(b)(6),
requires a showing that the ∆ acted with the purpose of preventing the declarant from
testifying
4. Three key words, found in Lord Marley’s Case: means or procurement. For Scalia, these
words state a requirement that “the ∆ engaged in conduct designed to prevent the W from
testifying”
5. Liberality in DV cases
a) All 9 justices indicated their readiness in many DV cases to glean from the ∆’s history of
abuse and ultimate murder of his parter the purpose of ridding her as a W against him
b) “Earlier abuse or threats of abuse intended to dissuade the victim from resorting to
outside help would be highly relevant to the inquiry”
c) Bottom line: the Justices seem prepared in many cases to infer from the course of abuse
the ∆’s purpose to keep his victim from the witness stand
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Reading Notes | Week 11
03.28.2023, 03.30.2023
VI. Hearsay and Confrontation Clause Flowchart
A. Clearly testimonial statements include:
1. Solemn declarations made for the purpose of proving some fact
2. Formalized testimonial materials
3. Statements made with the “primary purpose of assisting in a prosecution”
B. Clearly nontestimonial statements include:
1. Casual and offhand remarks
2. Coconspirators’ statements
3. (Some) business records
4. Statements made with the “primary purpose of enabling police assistance to meet an
ongoing emergency”
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