1. A Federal Defender’s Guide to Confrontation Jessica Smith School of Government, UNC-Chapel Hill

2. Evidence 2

3. 3 32,700

4. Session Objective At the end of this session you will be able to: Understand & apply the new confrontation clause rules

5. 5 Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

8. 8 Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

9. V’s statements to 1st responding officers or 911 operator Child V’s statements to a family member, social worker, or doctor Forensic reports Autopsy reports Chemical analyst’s affidavit Chain of custody record

14. QUESTION: Government seeks to introduce D’s statements, made at the station house. Does Crawford apply?

15. Crawford does not apply to D’s own statements

16. Nor does it apply to D’s evidence

18. QUESTION: Excited utterances are always non- testimonial. True or False?

19. Crawford analysis is separate from hearsay analysis

21. Confrontation Clause Hoop (Crawford) Hearsay Hoop

23. Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

25. What does it mean to “be subject to cross-examination at trial”?

26. QUESTION: Witness asserts privilege. Is Witness subject to cross- examination?

27. QUESTION: W experiences memory lapses. Is W subject to cross-examination?

28. What does it mean to “be subject to cross-examination at trial”? W who asserts privilege is not subject to cross-examination W who has memory lapse is

31. Is it testimonial? Crawford said: Includes statements by those who “bear testimony” against the accused Testimony = a solemn declaration used to establish or prove some fact

32. Is it testimonial? However, Crawford declined to comprehensively define the term

33. Is it testimonial? Police interrogation

34. Is it testimonial? Police interrogation -of suspects

35. Is it testimonial? Police interrogation -of suspects -of victims

36. Davis/Hammon Rule: (1) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

37. Davis/Hammon Rule: (1) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

38. Davis/Hammon Rule: (2) They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

39. Davis/Hammon Rule: (2) They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

40. Davis Holdings: (1) 911 call statements = nontestimonial V spoke about events as they were happening, not later V facing ongoing emergency Q&A necessary to resolve emergency (including ID of D) Formality lacking

41. Davis Holdings: (2) V’s statements to responding officers = testimonial Not much different from those in Crawford Interrogation was investigation of past conduct No ongoing emergency 2 nd questioning Was “formal enough”

42. Is it testimonial? Police interrogation - of suspects - of victims - of witnesses

43. QUESTION: Is a blood test report testimonial?

44. Is it testimonial? Police interrogation Forensic reports & affidavits

45. Is it testimonial? Police interrogation Forensic reports & affidavits Chain of custody evidence X Business records X Equipment maintenance records X Casual remark to an acquaintance

47. QUESTION: D threatened the witness. Does a Crawford exception apply?

48. QUESTION: Granny makes a statement while dying. Does a Crawford exception apply?

49. Crawford Exceptions: 1.Forfeiture by wrongdoing 2.Dying declarations

50. Crawford Exceptions: 1.Forfeiture by wrongdoing 2.Dying declarations

51. Crawford Exceptions: 2.Dying declarations

56. Unavailability & Prior Opportunity to Cross-Examine How does the Government establish unavailability?

57. QUESTION: Prosecutor tells judge what steps were taken to locate the W. Will that do it?

58. Unavailability & Prior Opportunity to Cross-Examine How does the Government establish unavailability? Need to show a good faith effort to obtain the witness’s presence at trial Government needs to put on evidence.

59. Unavailability & Prior Opportunity to Cross-Examine Prior Opportunity to cross-examine - Prior trial

60. Unavailability & Prior Opportunity to Cross-Examine Prior Opportunity to cross-examine - Prior trial - Pretrial deposition?

61. Substitute Analysts 61

63. Crawford Holding: “Testimonial” hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine.

65. “Faux Substitute”

66. X

67. “Real Substitute”

69. Williams v. Illinois (U.S.)

77. AFFIRMED

80. 1.Not for the truth of the matter asserted 2.Non-testimonial because it wasn’t accusatory

81. 1.Not for the truth of the matter asserted 2.Non-testimonial because it wasn’t accusatory

83. 1.Non-testimonial because not formal 2.Rejects not for the truth approach

86. ?

91. Session Objective At the end of this session you will be able to: Understand & apply the new confrontation clause rules