Jail Call Analysis
4th Amdt – Waiver because of Consent
(Banargent, Scheinman, Poyck)
4th Amdt. – Society not ready to
recognize prisoner’s expectation of
privacy (Scheinman, Richardson)
Authentication – 901(b)(1)(Testimony by witness with knowledge);
901(b)(3) (comparison by trier of fact-Voice exemplar / Williams) /,
901(b)(4)(appearance, substance, contents), 901(b)(5)(Voice
Identification), 901(b)(6)(# assigned to Defendant + other circumstances)
Defendant’s Statements – 801(e)(2)(A) (Admission by a Party
Opponent / Trevino), 803(24)(Statement against Interest),
801(e)(2)(B)(Adopted Admission)
Best Evidence Rule – 1001(c)(Falcetta videotaped copy is like a print
from a negative); 1003(no question raised as to the authenticity)
403, 404(b) (Relevance, character
evidence)
Publish (Garrett
& Farrell)
Mail Analysis
104(a) – Preliminary questions of admissibility
shall be determined by the court.
104(b) – When relevancy depends on a fact, the
court shall admit it upon or subject to the
introduction sufficient to support a finding of the
fulfillment of that fact
Authentication –901(b)(4)(appearance, substance, contents / Druery);
901(b)(1)(Testimony by witness with knowledge); 901(b)(2)(Non-expert
opinion on handwriting)
Defendant’s Statements – 801(e)(2)(A) (Admission by a Party
Opponent / Trevino), 803(24)(Statement against Interest / Wood)
Best Evidence Rule – 1004 – original held by opponent
(“…original is mailed as usual…”)
Druery: Do these distinctive characteristics (901(b)(4)) satisfy the court (104(a)) that a
reasonable juror could conclude (104(b)) that the letter was authored by the defendant (i.e.,
what the proponent says (901(a))
Co-Defendant Statement Analysis
801(e)(2)(E) – intent to induce another to
deal with co-conspirators, future strategies,
identifying roles (Byrd)
803(24) – So far subjecting the speaker to
criminal liability that a reasonable person
wouldn’t say it unless it was true (Wood)
Y
E
S
Don’t worry about
Crawford
Can’t
Admit
Y
E
S
Will the Co-∆ Testify?
NO
Testimonial? (Woods, Crawford) Statements between coconspirator during the conspiracy are not testimonial.
NO
608: truthful character
if it’s been attacked
403, 404(b) (Relevance, character
evidence)
609: Impeachment
by Conviction
806 – Impeach Declarant’s
Credibility
613(a): Prior
Inconsistent Statement
Beware Rehabilitation! 405(a),
prior consistent stmt.,
613(b): Examining
Bias or Interest
Hearsay Analysis
803(4): Medical Diagnosis (Garcia);
803(1): Present Sense Impression
(Fischer) reflexive product
803(2): Excited utterance, time for
reflection (Apolinar); 803(3) Dying
Declaration (Thomas) – impending death
Yes – don’t worry
about Crawford
Giles: Only
1) Dying
Declaration or
2) Forfeiture
by Wrongdoing: intent
to prevent
Y
E
S
Will the Declarant Testify?
NO
Y Testimonial? (Vinson) To a cop: Would a reasonable person appreciate the
E fact that the police officer was collecting information for prosecution? To a
S non-cop (Woods) Casual Acquaintances Doctrine.
608: truthful
character if it’s been
attacked
613(a): Prior
Inconsistent
Statement
NO
403, 404(b) (Relevance,
character evidence)
609: Impeachment
by Conviction
806 – Impeach Declarant’s
Credibility
Beware Rehabilitation! 405(a),
prior consistent stmt.,
613(b): Examining
Bias or Interest
Writings Review
612: Writing Used to Refresh
Memory: wirtings looked at by
witnesses either while or before
testifying shall be given to the other
side. Will this refresh your
memory?
803(5): Past Recollection Recorded:
1. W once had knowledge;
2. W made writing at or near the
time
3. W can’t remember now
4. W now vouches for accuracy
(Johnson)
613(a): Prior Inconsistent Statement:
1. Substance,
2. time, place, and person,
3. opportunity to explain.
**Extrinsic evidence admissible if and
only if person denies making
statement**
801(e)(1)(B): Prior Consistent Statement:
offered to rebut an express or implied charge of
recent fabrication or improper influence.
Hammons: would a reasonable judge,
considering all phases of trial, and demeanor of
cross examiner, conclude the W has been
challenged for Recent Fabrication or improper
influence